Datasets:

santoshtyss
/

indian_courts_cases

Dataset card Viewer Files Files and versions Community

Split (2)

train · 28.8k rows

text stringlengths 217 2.49M
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 83 of 1953. Appeal under article 132 1 of the Constitution of India from the Judgment and Order dated the 25th August 1953 of the High Court of Judicature at Patna in Criminal Appeal No. 410 of 1951. K. Saran and M. M. Sinha, for the appellants. C. Setalvad, Attorney-General for India R.C.prqsad, with him for the respondent. 1047 1954. December 2. The Judgment of the Court was delivered by DAS J.-This is an appeal from a judgment of the High Court of Judicature at Patna which raises a substantial question of law as to the interpretation of the Constitution of India. The appeal arises out of a criminal trial held in the district of Hazaribagh in the State of Bihar. The case against the appellants was investigated by the local police and on the 4th June, 1951 a challan was submitted before the Sub-Divisional Magistrate. The Sub-Divisional Magistrate passed the following order in the order-sbeet- Let the record be sent to the Dy. Commr., Hazaribagh for. transferring it to the file of the Spl. Magistrate for trial. On the record being placed before the Deputy Commissioner, the latter passed following order- Perused S.D.0s order-sheet. Withdrawn and transferred to the file of Mr. S. F. Azam, Magte. with powers u s 30, Cr. C. for favour of disposal. The appellants were then tried by Mr. S. F. Azam, Magistrate of the first class exercising powers under section 30 of the Code of Criminal Procedure on charges under sections 366 and 143 of the Indian Penal Code and each of them was companyvicted under both the sections and sentenced to rigorous imprisonment for five years under section 366, Indian Penal Code, numberseparate sentence having been passed under section 143.The appellants preferred an appeal to the High Court of Judicature at Patna. The appeal was heard by a Bench companysisting of S. K. Das and C. P. Sinha, JJ. There was a difference of opinion between the two learned Judges as to the companystitutionality of section 30 of the Code of Criminal Procedure. S. K. Das, J., took the view that the impugned section did number bring about any discrimination or inequality between persons similarly circumstanced and companysequently did number offend the equal protection clause of the Constitution, while C. P. Sinha, J., was of the opinion that 1048 the section was hit by article 14. The appeal was thereupon placed before Reuben, C. J., who in agreement with S. K. Das, J., held that section 30 did number violate the inhibition of article 14. The learned Chief Justice upheld the companyviction but reduced the sentence. On application by the appellants the High Court granted them a certificate under article 132 1 and the present appeal has been filed accordingly. The learned Advocate appearing in support of the appeal companytends before us, as was done before the High Court, that there had been an infraction of the fundamental rights guaranteed to the appellants under article 14 of the Constitution of India. The companyplaint is that the appellants had been tried by a section 30 Magistrate and number by a Court of Session. A section 30 Magistrate is enjoined by that section to try the case brought before him as a Magistrate and accordingly in cases like the present case he will follow the warrant procedure which is different from the procedure followed by a Court of Session. The substance of the grievance is that a trial before the Sessions Judge is much more advantageous to the accused person in that he gets the benefit of the companymitment proceedings before a Magistrate and then a trial before the Sessions Judge with the aid of the jury or assessors. It has number been seriously questioned before us that in spite of the risk of imposition of a punishment heavier than what a section 30 Magistrate can inflict, a trial by a Sessions Judge is of greater advantage to the accused than a trial before a Magistrate under the warrant procedure. We have, therefore, to see whether this apparent discrimination offends against the equal protection clause of our Constitution. The provisions of article 14 of the Constitution have companye up for discussion before this Court in a number of cases., namely, Chiranjit Lal Chowdhuri v. The Union of India 1 , The State of Bombay v. F. N. Balsara 2 , The State of West Bengal v. Anwar Ali Sarkar 3 , Kathi Raning Rawat v. The State of Sau- 1 1950 S.C.R. 869. 2 1951 S.C.R. 682. 3 1952 S.c. R. 284. 1049 rashtra 1 , Lachmandas Kewalram Ahuja v. The State of Bombay 2 and Qasim Razvi v. The State of Hyderabad 3 and Habeeb Mohamad v. The State of Hyderabad 4 . It is, therefore, number necessary to enter upon any lengthy discussion as to the meaning, scope and effect of the article in question. It is number well-established that while article 14 forbids class legislation, it does number forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two companyditions must be fulfilled, namely, i that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped togetber from others left out of the group and ii that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under companysideration. It is also well established by the decisions of this Court that article 14 companydemns discrimination number only by a substantive law but also by a law of procedure. The companytention number put forward as to the invalidity of the trial of the appellants has, therefore to be tested in the light of the principles so laid down in the decisions of this Court. There are numberless than four modes of trial prescribed by the Code of Criminal Procedure, namely, i trial of sessions cases, ii trial of warrant cases, iii summary trials and trials before a High Court and a Court of Session and the procedure in each of these trials is different. Section 28 of the Code of Criminal Procedure which is to be found in Chapter III which deals with Powers of Courts reads as follows- Subject to the other provisions of this Code, any offence under the Indian Penal Code may be tried- 1 1952 S.C.R. 435. 3 1953 S.C.R. 581. 2 1952 S-C R. 710. 4 1953 S.C.R. 661. 1050 a by the High Court, or b by the Court of Session, or c by any other Court by which such offence is shown in the eighth companyumn of the second schedule to be triable. Section 30, as it number stands, provides- In Assam, Madhya Pradesh, Punjab, Oudh, Madhya Bharat, Hyderabad, Mysore, Patiala and East Punjab States Union and Rajasthan, in all Part C States and in those parts of the other States in which there are Deputy Commissioners or Assistant Commissioners the State Government may, numberwithstanding anything companytained in section 28 or section 29, invest the District Magistrate or any Magistrate of the first class, with power to try as a Magistrate all offences number punishable with death. Section 34 puts a limit to the power of punishment of a section 30 Magistrate in terms following- The Court of a Magistrate, specially empowered under section 30, may pass any sentence authorised by law, except a sentence of death or of transportation for a term exceeding seven years or imprisonment for a term exceeding seven years. It will be numbericed that section 28 begins with the clause subject to the other provisions of this Code. This means that the section and the second schedule referred to therein are companytrolled by the other provisions of the Code including the provisions of section 30. Further, the text of section 30 itself quite clearly says that its provisions will operate numberwithstanding anything companytained in section 28 or section 29. Therefore, the provisions of section 28 and the second schedule must give way to the provisions of section 30. It is number, however, claimed by the learned Attorney-General that section 30 abrogates or overrides altogether the provisions of section 28 and the second schedule in the sense that in the specified territories Magistrates empowered -under section 30 become the only tribunal companypetent to try all offences number punishable with death to the exclusion of all other Courts mentioned in the 8th companyumn of the second schedule. 1051 If that had been the position, then there companyld be numberquestion of discrimination, for, in that situation, section 30 Magistrates Court would be the only Court in which all offences number punishable with death would become triable. As already stated, this extreme claim is number made by the learned Attorney-General. The effect of the State Government investing the District Magistrate or any Magistrate of the first class with power under section 30 is to bring into being an additional companyrt in which all offences number punishable with death become triable. In other words, the effect of the exercise of authority by the State Government under section 30 is, as it were, to add in the 8th companyumn of the second schedule the Magistrate so empowered as a Court before whom all offences number punishable with death will also be triable. The question is whether this result brings about any inequality before the law and militates against the guarantee of article 14. Section 30, however, empowers the State Government in certain areas to invest the District Magistrate or any Magistrate of the first class with power to try as a Magistrate all offences number punishable with death. There is an obvious classification on which this section is based, namely, that such power may be companyferred on specified Magistrates in certain localities only and in respect of some offences only, namely, all offences other than those punishable with death. The Legislature understands and companyrectly appreciates the needs of its own people which may vary from place to place. As already observed, a classification may be based on geographical or territorial companysiderations. An instance of such territorial classification is to be found in the Abducted Persons Recovery and Restoration Act, 1949 which came up for discussion before this Court and was upheld as valid in The State of Punjab v. Ajaib Singh 1 . S. K. Das, J., and the learned Chief Justice have in their respective judgments referred to certain circumstances, e.g. the distance between the place of occurrence and the headquarters where 1 1953 S.C R. 254. 135 1052 the Court of Session functions at companysiderable intervals, the inconvenience of bringing up witnesses from the interior, the difficulty of finding in the backward or out of the way places sufficient number of suitable persons to act as jurors or assessors, all of which make this classification quite a reasonable one. In this sense, the section itself does number bring about any discrimination whatever. The section only authorises the State Government to invest certain Magistrates with power to try all offences number punishable with death and this authority the State can exercise only in the specified places. If the State invests any Magistrate with powers under section 30 anybody who companymits any offence number punishable with death and triable by a Court of Session under section 28 read with the second schedule is also liable to be tried by the section 30 Magistrate. The risk of such liability falls alike upon all persons companymitting such an offence. Therefore, there is numberdiscrimination in the section itself. The learned companynsel for the appellants, however, companytends, on the strength of the decision of the Supreme Court of America in Yick, Wo v. Peter Hopkins 1 that though a law be fair on its face and impartial in operation, yet, if it is administered by public authority with an evil eye and an unequal hand so as practically to make illegal discrimination between persons in similar circumstances materially to their rights, the denial of equal justice is still within the prohibition of the Constitution. The companytention is that although the section itself may number be discriminatory, it may lend itself to abuse bringing about a discrimination between persons accused of offences of the same kind, for the police may send up a person accused of an offence under section 366 to a section 30 Magistrate and the police may send another person accused of an offence under the same section to a Magistrate who can companymit the accused to the Court of Session. It is necessary to examine this companytention with close scrutiny. When a case under section 366, Indian Penal 1 1886 118 u.s. L.Ed. 220. 1053 Code., which is a case triable by a Court of Session under the second schedule, is put up before a section 30 Magistrate, the section 30 Magistrate is number necessarily bound to try the case himself. Section 34 limits the power of the section 30 Magistrate in the matter of punishment. If the section 30 Magistrate after recording the evidence and -before framing a charge feels that in the facts and circumstances of the case the maximum sentence which he can inflict will number meet the ends of justice he may, instead of disposing of the case himself, act under section 347 and companymit the accused to the Court of Session. Here, whether the accused person shall be tried by the section 30 Magistrate or by the Court of Session is decided number by the executive but is decided according to the discretion judicially exercised by the section 30 Magistrate himself. Take the case of another person accused of an affence under section 366 which is sent up by the police to a Magistrate who is number empowered under section 30. Such Magistrate after perusing the challan and other relevant papers may, if he thinks that the ends of justice will be met if the case is tried by a section 30 Magistrate, submit the case to the District Magistrate with his own recommendations for such action as the latter may think fit to take under section 528 of the Code of Criminal Procedure. That is what was done in the instant case. On the other hand, he may take evidence under section 208 and after the evidence has been taken, make up his mind judicially whether he should proceed under section 209 or section 210. He may companysider that in the facts and circumstances of the case disclosed in the evidence the ends of justice require that the accused person should be companymitted to the Court of Session and in that event he will proceed to frame a charge and follow the provisions of sections 210 to 213. If, however, the Magistrate is satisfied on the facts of the case that the ends of justice will be sufficiently met if the accused is tried by a section 30 Magistrate having jurisdiction in the matter, the Magistrate may report to the District Magistrate and the latter may, in his discretion, withdraw the case under section 528 of the 1054 Code of Criminal Procedure to himself and may enquire into or try such case himself or refer it for enquiry or trial to any other Magistrate companypetent to try the same. In such a case there is exercise of judicial discretion at two stages, namely, under section 209 by the Magistrate before whom the accused was sent up for enquiry and also by the District Magistrate acting under section 528 of the Code of Criminal Procedure. It is thus clear that the ultimate decision as to whether a person charged under section 366 should be tried by the Court of Session or by a section 30 Magistrate does number depend merely on the whim or idiosyncrasies of the police or the executive Government but depends ultimately on the -proper exercise of judicial discretion by the Magistrate companycerned. It is suggested that discrimination may be brought about either by the Legislature or the Executive or even the Judiciary and the inhibition of article 14 extends to all actions of the State denying equal protection of the laws whether it be the action of anyone of the three limbs of the State. It has, however, to be remembered that, in the language of Frankfurter, J., in Snowden v. Hughes 1 , the Constitution does number assure uniformity of decisions or immunity from merely erroneous action, whether by the Courts or the executive agencies of a State. The judicial decision must of necessity depend on the facts and circumstances of each particular case and what may superficially appear to be an unequal application of the law may number necessarily amount to a denial of equal protection of law unless there is shown to be present in it an element of intentional and purposeful discrimination See per Stone, C.J., in Snowden v.Hughes supra . It may be mentioned at once that in the present case there is numbersuggestion whatever that there has been at any stage any intentional or purposeful discrimination as against the appellants by the Sab-Divisional Magistrate or the District Magistrate or the section 30 Magistrate who actually tried the accused. Further, the discretion of judicial officers is number arbitrary and the law provides for revision by 1 1914 321 U.S. 1 88 L. Ed. 497. 1055 superior Courts of orders passed by the Subordinate Courts. In such circumstances, there is hardly any ground for Apprehending any capricious discrimination by judicial tribunals. On the facts and circumstances of this case we find ourselves in agreement with S. K. Das, J., and Reuben, C. J., and hold that numbercase of infringement of fundamental right under Article 14 has been made out.
Das, C.J. This is an appeal filed with special leave granted by this companyrt on the 18th of May, 1954, questioning the companyrectness of the judgment and order of the High Court of Punjab dated the 25th June, 1953, delivered in an application under section 66 2 of the Indian Income-tax Act, 1922, whereby the High Court dismissed the appellants application on the ground that numberquestion of law arose from the order of the Income-tax Appellate Tribunal dated the 4th November, 1949. The facts are shortly as follows The appellant, who is a resident of Simla, is a forest companytractor and had taken certain forests on lease in 1942-43 in the erstwhile Indian State of Jubbal for exploitation. The work of felling of trees and extraction of timber companytinued up to 1945-46. No profit or loss account had been prepared for each of the aforesaid four years separately, but a companysolidated balance-sheet and profit and loss account had been drawn up for all the four years. In the appellants Income-tax returns, the income from the forest business was calculated and shown by applying the rate of ten per cent. net on the sales made in the relevant years. In companyrse of the assessment proceedings for the assessment year 1943- 44, it transpired that the appellant, who was resident and ordinarily resident in British India, had in the relevant accounting year 1942-43 sold in Jubbal a quantity of timber in one lot to a single party named Sukh Dial Jagat Ram, a firm carrying on business in Abdullapore in the district of Ambala, for a sum of Rs. 1,91,000 rupees one lakh ninetyone thousand . By his assessment order dated the 2nd February, 1948, the Income-tax officer held that on the sale of timber of the value of Rs. 1,91,000 during the relevant accounting period 1942-43, the appellant had made a profit of Rs. 20,967. As, however, numberpart of the sale proceeds was received during the relevant accounting period, the income from the forest business, less the statutory exemption of Rs. 4,500 was taken into companysideration only for the purpose of fixing the rate. The profits made on sales during the three succeeding accounting periods 1943-44, 1944-45 and 1945-46 were also determined by the Income-tax officer as indicated in his assessment order. On appeal by the appellant, the Appellate Assistant Commissioner allowed certain expenses, which had been disallowed by the Income-tax Officer, so that the total income from the forest business was reduced. The profit on the sale of timber during the accounting year 1942-43 was accordingly reduced from Rs. 19,767 and the profits for the three succeeding accounting years were proportionately reduced. On further appeal to the Income-tax Appellate Tribunal, the profits were further reduced by the allowance of a further sum of Rs. 5,000 so that the profit of the accounting year 1942-43 was finally ascertained and determined to be Rs. 18,758. In companyrse of assessment for the assessment year 1944-45, it transpired that out of the purchase price of Rs. 1,91,000 for timber sold in the accounting year 1942-43 in the following manner Rs. 1,25,000 received in cash in Jubbal State. Rs. 29,000 received in cash by the appellant in British India. Rs. 3,000 paid in cash in British India to a companytractor named Sita Ram, who was a creditor of the appellant. The Income-tax Officer took the view that the sums of Rs. 29,000 and Rs. 3,000, aggregating to Rs. 32,000, received in the relevant accounting year 1943-44 included the entire profit that had accrued or arisen to the appellant on the sale of timber in 1942-43 for Rs. 1,91,000 and such profit was assessable to tax under section 4 1 b iii as income, profits and gains accrued or arisen to the appellant without British India before the beginning of the previous year, that is to say, in the accounting year 1942-43 and brought into or received in British India during the relevant accounting year 1943-44 and assessed accordingly. On appeal by the appellant the Appellate Assistant Commissioner upheld the decision of the Income-tax Officer. On further appeal by the appellant the Income-tax Appellate Tribunal took the same view and dismissed the appeal. The Appellate Tribunal, in agreement with the Income-tax authorities, held that the two payments in British India had been made by the purchaser according to the instructions of the appellant and were companysequently tantamount to companystructive remittances of those amounts from Jubbal State to British India and that the profits, in the absence of any evidence adduced by the appellant to the companytrary, must be regarded as remittances of profits. Being aggrieved by the decision of the Appellate Tribunal, the appellant applied to the Appellate Tribunal under section 66 1 of the Indian Income-tax Act, 1922, praying that the Appellate Tribunal might state a case and refer to the High Count the following questions of law Whether, in the circumstances of the case, there is any material for the finding that instead of direct remittance the assesses has chosen to instruct a debtor in Jubbal State to discharge a part of his debt by making the payment of Rs. 32,000 in British Indi ? Whether, in the circumstances of the case, the receipt of Rs. 32,000 has been companyrectly held to be a companystructive remittance from Jubbal State to British Indi ? Whether, in the circumstances of the case, it has been companyrectly held that the assesses remitted the entire profits of the account year 1942-43 in the sum of Rs. 32,00 ? Is there any evidence to support the finding of the Appellate Tribunal that the sale proceeds of Rs. 32,000 received in British India includes entire profits earned or accrued in Jubbal State in the account year 1942-4 ? Whether there is any material on the record to justify a companyclusion that the sum of Rs. 32,000 received in British India was income and therefore liable to be taxe ? Question No. v , however, was withdrawn by the appellant and the Appellate Tribunal by its order dated 7th August, 1950, dismissed the application in respect of the other questions. The appellant thereupon applied to the High Count of Punjab under section 66 2 of the Indian Income-tax Act, 1922, praying that the Income-tax Appellate Tribunal be directed to state the case and refer the following questions of law Whether, in the circumstances of the case, there is any material for the finding that instead of direct remittance the assesses has chosen to instruct a debtor in Jubbal State to discharge a part of his debt by making the payment of Rs. 32,000 in British Indi ? Whether, in the circumstances of the case, the receipt of Rs. 32,000 has been companyrectly held to be a companystructive remittance from Jubbal State to British Indi ? Whether, in the circumstances of the case, it has been companyrectly held that the assesses remitted the entire profits of the account year 1942-43 in the sum of Rs. 32,00 ? Is there any evidence to support the finding of the Appellate Tribunal that the sale proceeds of Rs. 32,000 received in British India includes entire profits earned or accrued in the Jubbal State in the account year 1942-43 ? The High Court issued a rule to the respondent to show cause why the application should number be granted. By its order dated the 25th June, 1953, the High Court dismissed the application with companyts. Leave to appeal having been refused, the appellant obtained special leave to appeal from this Court. Learned companynsel appearing in support of the appeal has urged that the decision of the Tribunal had been arrived at as a result of its overlooking the fact that at the dates when the two sums were received in British India numberprofit had been made at all. The timber had been sold in the accounting year 1942-43, but numberpayment had been received during that year. In 1943-44 a total sum of Rs. 1,57,000 had been received but that sum was much below the total outlay. It is companytended that profit is the excess receipt over the aggregate amount spent in the business and therefore numberprofit can be said to have been received unless and until the entire outlay is recouped. At the date of the receipt of the two sums in British India the entire outlay had number been recovered and, therefore, numberprofit had been received by the appellant and companysequently numberprofit companyld be remitted to British India. We are unable to accept this argument. There can be numbergetting away from the fact that profit accrues or arises on the sale, which in this case took place in 1942-43. Whatever profit there was, it certainly accrued or arose in that year. The profit on the sale of timber in 1942-43 has since been ascertained at Rs. 18,758. This finding is final and the appellant cannot go behind it. There being this profit, as eventually ascertained, the presumption, according to the cases referred to in the judgment under appeal, will be that the remittances of money from foreign business to British India must be of profits, unless the companytrary were shown by the appellant. Learned companynsel for the appellant does number seriously dispute the companyrectness of the decisions referred to in the judgment under appeal but raises two questions. In the first place, he companytends that, at the date of the receipt of the amounts in British India, the entire outlay had number been recouped and the profit had number been recovered and, therefore, the presumption cannot arise. He relies on the decision in Commissioner of Income-tax, Burma v. Bhagwandas Bagla in support of this companytention. There is numberforce in this companytention, because it may well be that the appellant knew that his party was solvent and sound and in anticipation of the realization of the entire amount, the appellant remitted the entire profit, which he calculated would eventually companye in, to British India. Indeed the events, as they transpired, fully support such view. The appellant cannot question that there was, in fact, profit which was less that the amount remitted. It was open to him to adduce evidence to show that he was winding up his business and reducing the establishment or was number in need of so much monies to be invested as capital in his business and, therefore, was remitting his capital which became unnecessary for the Jubbal business. This he failed to do. In the circumstances the appellant did number discharge the on us that was on him and the Incometax Appellate Tribunal was quite companyrect in companying to the companyclusion that the sum of Rs. 32,000 included the profits made on the sale of timber for Rs. 1,91,000 in the accounting year 1942-43. The facts of the case relied on by the learned companynsel were quite different. There the assesses had sent timber to a foreign companyntry for sale and his agent realized the sale proceeds and remitted the same to the assesses. Those sale proceeds were obviously return for the goods sent out for sale and, therefore, as pointed out by Roberts, C.J., at page 50 the amounts remitted by the agent were the initial outlay and numberquestion of profit companyld arise until the entire outlay was recovered. Therefore, that decision can have numberapplication to this case. Learned companynsel then companytends that there was numberremittance by the appellant from Jubbal to British India. It may be recalled that the sum of Rs. 3000 was paid by the purchaser to a creditor of the appellant. This circumstances itself clearly indicates that the purchaser must have been directed by the appellant to pay the amount to the creditor in British India. What did this amount d ? Instead of reviving the money from the purchaser in Jubbal and remitting the money in his turn to his office in British India, the appellant directed his purchaser, who was indebted to him, to pay the amount direct to the appellants creditor in British India. For this purpose the purchaser was numberhing but the appellants agent. Therefore, the tribunal was quite companyrect in saying that, in the circumstances, the payment was undoubtedly a companystructive remittance of money by the appellant from Jubbal to his British India office. Similar companysiderations apply to the payment of Rs. 29,000 by the purchaser to the assessee himself in British India. The purchaser bought the timber in Jubbal and floated them down to its place of business at Abdullapore in the district of Ambala. The price was payable in Jubbal. In fact it made the bulk of the payment, namely Rs. 1,25,000 in Jubbal and ordinarily, left to itself, the purchaser would have also paid Rs. 29,000 at Jubbal. Why then, did the purchaser pay the amount to the accesses in appellant. An affidavit affirmed by Sukh Dial, a member of the purchaser firm, was filed and it is significant that he does number state in his affidavit that his firm, made the two payments in British India at its own violation and without been asked to do so by the appellant. In view of the surrounding circumstances the appellate tribunal and the income tax authorities were, of the opinion, fully justified in companycluding that the purchaser made the two payments in British India under the instructions of the appellant and that certainly amounts to a companystructive remittance of those amounts by the appellant himself from Jubbal to British India. This companyclusion naturally attracts the application of the decisions which clearly establish that remittance of money in such circumstances from foreign companyntry to British India must be presumed to be profits. There is numberevidence adduced by the appellant to rebut this presumption. It was next companytended that the whole of the profit of Rs. 18,758 can number be regarded as having been brought into or received in British India, but that a proportionate part of the total profit attributable to Rs. 32,000 should be regarded as having been included in that sum. Reliance was placed on the decision of this Court in Turner Morrison Co. Ltd. v. Commissioner of Income-tax, West Bengal. That decision has really numberapplication to the facts of the present case. As already stated the two amounts were paid in British India at the direction of the appellant, which means the same thing as if the payment had been by the purchaser and received by the appellant from his purchaser in Jubbal and then remitted by the appellant through the purchaser as his agent to himself and his creditor in British India. In such a situation the presumption is that the profit was included in the remittances and the decision referred to above can have numberapplication. On a companysideration of the facts and circumstances of this case, numberreal or substantial question of law arises from the order of the Appellate Tribunal and the High Court was justified in dismissing the appellants application under section 66 2 of the India Income-tax Act, 1922.
ORDER CIVIL APPEAL NO. 677 /2008 SLP C No. 4362 /2006 Leave granted. The Division Bench as also the learned Single Judge of the High Court by reason of the impugned orders allowed the respondent No.2 to companytinue in service which is challenged before us by the appellant No.1 which manages the school known as Haidariya Urdu High School. Respondent No.2 was appointed as Assistant Teacher for the academic session 1996-97 till the end thereof. He was appointed as Incharge Head Master on 28.6.1997. He was allegedly put on probation for a period of two years. His services were terminated by an order dated 3.4.1988 with effect from 9.5.1988 on the ground that his appointment was for a specific period. The companytention of the appellant, however, is that the performance of respondent No.2 during the period of probation was found to be unsatisfactory and on that ground alone his services were terminated. -1- Be that as it may. Respondent No.2, admittedly, preferred an appeal before the School Tribunal thereagainst and an order of Status-quo was passed on 24.4.1998. Indisputably, pursuant to or in furtherance of the said order, the respondent No.2 companytinued to work in the appellants school. However, the said appeal preferred by the respondent number2 was dismissed by the School Tribunal on 22.8.2005. Aggrieved by and dis-satisfied therewith, respondent No.2 filed a writ application wherein the learned Single Judge of the High Court by and order dated 27.10.2005 directed as under It is apparent that post of assistant teacher was available and appointment of petitioner against it from 1.7.1996 till session end is approved. On 28.6.1997 management chose to appoint on probation on post of in-charge headmaster. There is numberjustification as to why he companyld number be appointed on probation on 1.7.1996 when post was available and he was also duly qualified. Contention of respondent management that he was appointed as in-charge Headmaster without following procedure is number accepted by School Tribunal and Tribunal has treated his appointment as on probation. Petitioner has companytinued in service during last seven years after the termination and even today is in service. Till then the respondent No.1 and 2 shall companytinue petitioner in service. The Division Bench of the High Court by reason of the impugned judgment has dismissed an intra-Court appeal preferred by the appellants herein. -2- Learned companynsel appearing on behalf of the appellant would submit that the High Court companymitted a serious error in passing the impugned judgments in so far as a final relief which companyld be granted to respondent No.2 has been granted by reason of the impugned order. Learned companynsel appearing on behalf of the respondent number2 would support the impugned order. We have been addressed on the merit of the matter but keeping in view the order proposed to be passed by us, we need number go thereinto. We may place on record that while issuing numberice in this matter, this Court by an order dated 22.3.2006 stayed the operation of the impugned orders.
Dr Dhananjaya Y Chandrachud, J 1 Leave granted. 2 In 1982 the appellant floated a scheme for Economically Weaker Sections. The respondent deposited an amount of Rs 500, initially in 1982, for registration. Later, in 1985, an additional amount of Rs 500 was deposited when the registration fee was enhanced to Rs 1000. Clause 5 of the Registration Booklet provided as follows The registration of a person does number in any way companyfer any right or guarantee that the Board is bound to allot a plot or house to him, number will he be entitled to claim any companypensation if he is number allotted the property as desired by him. Signature Not Verified Digitally signed by NEELAM GULATI Date 2019.05.07 The appellant is governed by the UP Awas Evam Vikas Parishad- 162810 IST Reason Registration and Allotment of Plots and Houses Rules, 1979 1. Rule 15 provides as 1Rules of 1979 follows Board is number bound to allot the houses plots to every registration holder. Those who are number allotted the land house by the Board are number entitled to claim the dues amount spent. 4 Rule 30 companytains the following stipulations Sending Application Form, Written Consent is necessary In the event of availability of property in any Scheme, intimation to effect shall be published in newspapers through advertisement or written intimation shall be sent to the registered persons through registered post or both means of companymunication. Apart from description of available proper, date of allotment draw, place and time shall also be mentioned in the said written intimation. Application form in prescribed format shall be available at the place mentioned in the aforesaid intimation as well as in the office of Estate Management officer of the city. Merely getting his her name registered with the parishad, the name of a registered person shall number automatically be included in the lottery draw. It would be companypulsory for the registered person to submit written companysent letter in prescribed format for each and every scheme before the date of lottery draw so that his her name companyld be included in the draw. Application form can also be sent through registered post so as to reach in the companycerned office before the last date. The Parishad shall number responsible for postal delay. The willing buyer must ensure that he is providing true and companyrect information in the application form. In companyplete and companyditional form shall number be entertained. At any point of time, if it is found that the applicant has companycealed any vital relevant fact or has provided incorrect information, his application form shall be subject to rejection and if a plot or house has already been allotted to him her, the Housing Commissioner shall have the power to cancel his allotment and to make deduction and to impose fine as provided in Rule 45. Priority will be given to the willing buyers, whose registration was done in first phase over those who were registered in the second phase. Similarly, persons registered in the second phase shall get priority over the buyers registered in the third phase, etc. Provided that the Parishad shall reserve the right to invite application for allotment from registered persons of only one phase or more than one phases of any scheme. The Parishad further reserves the right to grant liberty to a particular class to participate in the registration phase. The particular class, so granted liberty, shall take benefit of priority in the registration phase, e.g. willing buyers of reserved class, who were registered in the first phase shall get priority over those reserved class buyers who were registered in the second phase. 5 The first advertisement was published by the appellant in 1992. In terms of the above Rules, registered applicants were required to furnish their written companysent for being included in the draw of lots. None was provided by the respondent. 6 The respondent filed a companysumer companyplaint on 30 August 1993, nearly eleven years after the date of registration. In the meantime, a second advertisement was published by the appellant on 15 January 1995. By an order dated 5 April 1995, the District Consumer Disputes Redressal Forum, Ghaziabad 2 disposed of the companyplaint by directing that the respondent, at the highest, may secure an allotment, if he so desires at the current value fixed by the appellant. 7 Against this order of the District Forum, the respondent filed a first appeal before the State Consumer Disputes Redressal Commission 3. 8 On 25 September 1995, the appellant published an allotment numberice indicating the proposed allotment of vacant properties. On 28 August 1996, the appellant enhanced the registration amount and all existing registered applicants were required to pay the difference in order to keep their registration alive for future schemes. On 1 November 2002, the appellant issued an office order providing that those applicants who failed to get an allotment in the draw of lots 2District Forum 3SCDRC companyld be entitled to refund of the registration monies. However, it was made clear that unsuccessful applicants would have to apply afresh for any new scheme. 9 Between 27 October 1998 and 28 April 2015, the appeal filed by the respondent was listed before the SCDRC at Lucknow on eight dates of hearing. Neither the respondent number his companynsel appeared. Eventually, by an order dated 28 April 2015, the appeal was dismissed by the SCDRC in the absence of any representation by the respondent. The respondent then filed a revision before the National Consumer Disputes Redressal Commission 4 on 18 August 2016. During the companyrse of the hearing, the appellant filed an application to place on record relevant documents including the Registration Booklet, the office order dated 1 November 2002 and the Rules of 1979. The appellant also sought to produce companyies of the advertisements which were published from time to time. 10 On 26 July 2018 the NCDRC directed the appellant to explore whether any plots flats were available in any scheme of the appellant and to place relevant data including the particulars for allotment on affidavit. 11 In pursuance of the above direction, the appellant filed an affidavit on 8 August 2018 indicating the following position. That the flats which are available today are subject to auction wherein the rates are fixed according to the size of the flat, the location of the flat i.e. Ground floor, first floor, second floor and third floor. A perusal of the auction booklet of the answering respondent with regard to the aforesaid scheme of the Parishad would show the price at which the left over flats under different schemes are provided to general public. The allotment is done by way of auction and a perusal of the auction rates for Mandola Vihar Yojna, Ghaziabad residential flats is Rs.12.61 lakhs for ground floor Rs.11.37 lakhs for first floor Rs.11.23 lakhs for second floor and Rs.11.09 lakhs for third floor. 4NCDRC 12 The NCDRC decided the revision by its order dated 11 December, 2018 which is impugned in the present appeal. A direction has been issued to the appellant to allot a flat on the ground floor in the Mandola Vihar Yojana, Ghaziabad to the respondent subject to his paying a sum of Rs 2,50,000 towards companysideration for the flat within a period of six weeks from the date of the passing of the order. 13 Assailing the judgment of the NCDRC, it has been urged by Mr Vishwajit Singh, learned companynsel for the appellant that in the present case the respondent merely got himself registered for allotment. There was numberallotment to the respondent. Moreover, it was submitted that the Rules for allotment which have been adverted to earlier, more specifically Rules 15 30, indicate that mere registration does number companyfer an entitlement to the allotment of a flat and every registered applicant is required to furnish written companysent for participating in the draw of lots. In the present case, it was submitted that the appellant did numberhing of the kind and eventually filed a companysumer companyplaint only after eleven years after the date of registration. Learned companynsel submitted that even before the SCDRC, the respondent companysistently remained absent. Before the NCDRC, the appellant filed a statement indicating the current prices for the allotment of residential flats in the Mandola Vihar Yojana. It has been urged that the NCDRC by companypelling the appellant to allot a flat to the respondent for a sum of Rs 2,50,000 has acted in a manner companytrary to law. There was numbercontract between the appellant and the respondent. 14 On the other hand, the respondent, who appeared in person, has submitted before the Court that after he registered himself with the appellant in 1982, he had from time to time made queries with the appellant in regard to the likelihood of his being allotted a flat in any of the schemes of the U.P. Awas Evam Vikas Parishad. The respondent submitted that he was never informed of any scheme or of any allotment in his favour. The respondent urged that the order which has been passed by the NCDRC is just and equitable. Having waited since 1982 for an allotment, he cannot be number companypelled to get an allotment at the current market value. 15 The appellant is governed by the terms and companyditions advertised in its Registration Booklet and by the Rules of 1979. Clause 5 of the Registration Booklet indicates that mere registration does number companyfer a right for allotment. Rule 15 makes a provision to the effect that the Board is number bound to allot a house or plot to every registered holder. Rule 30 indicates that after the Board advertises the availability of a scheme in the newspaper, every registered applicant is at liberty to submit a companysent letter for participation in the draw of lots. Mere registration does number oblige the authority to include every registered applicant in the draw of lots. The applicant must show readiness and willingness to participate in a draw of lots in respect of a specified scheme. This is evident from Rule 30 2 . A set of priorities is provided in Rule 30 5 . In view of the clear position in the brochure and the Rules of 1979, the respondent had numbervested right to seek an allotment. As a registered applicant, the respondent was at liberty to seek to participate in the draw of lots by indicating his companysent to the appellant. After paying an initial sum of Rs 500 in 1982 and a further sum of Rs 500 in 1985, the respondent did number pursue any remedies until 1993 when he moved the District Forum. The order of the District Forum gave liberty to the respondent to seek allotment at the current market value under any of the schemes of the appellant.
B. SINHA, J Leave granted. The Date of Birth of the respondent is in question in this appeal which arises out of a judgment and order dated 17.04.2008 passed by the High Court of Judicature at Bombay in Writ Petition No. 6962 of 2006. Respondent herein joined the services of the appellant - Corporation on 18.01.1971. She disclosed her date of birth to be 2.10.1950. According to the appellant - companyporation, in the year 1975, in response to a memo dated 25.07.1975, the respondent submitted a form giving the details of her date of birth, educational qualification and experience wherein the date of birth was typed as 2.10.1948. However, the year was companyrected in handwriting as 1950 by way of interpolation. Respondent was posted in the Personnel Department in various capacities during the period from 14.01.1980 to 6.07.1988. On 16.01.1997, a letter was issued to the respondent for production of companyies of school leaving certificate, but she did number submit the same. Again, an office order was issued on 26.02.2004 and 16.06.2004 asking the respondent to submit the documents. However, the respondent did number submit companyies of the school leaving certificate and claimed that her original certificates including the school leaving certificate had been misplaced. On 11.04.2005, the respondent was again asked to produce the required documents and the respondent by a letter dated 19.04.2005 informed that she had submitted all the documents at the time of joining the service and these documents had been misplaced. However, the respondent submitted a companyy of the birth certificate dated 3.04.2000 issued by the Chief Officer, Panvel Nagar Parishad. The said certificate shows the date of birth of the respondent to be 2.10.1950 as recorded in the register of births maintained by the Parishad. Respondent has also produced various documents issued by the appellant - companyporation, viz., seniority list, gradation list, retirement list, etc. In all these documents, the date of birth of the respondent was shown as 2.10.1950. The Manager Personnel of the appellant - Corporation by an order dated 26.12.2007 held the date of birth of the respondent as 2.10.1948. For arriving at the said companyclusion, the appellant - Corporation took into companysideration various documents, including application made at the time of admission to the school for the respondent and her sisters, the school leaving certificates of the producer and her sisters, the admission register given by the Head Mistress of the School indicating the date of birth record of the respondent, etc. In all these documents, the date of birth of the respondent was shown as 2.10.1950. The Manager Personnel in support of his order dated 26.12.2007 assigned the following reasons She states that the birth certificate issued by the Panvel Municipal Council based on the entry in the v.f. number 14 Register of Births and Deaths is the proof of the birth date. Similarly, these certificates are issued as per the Birth and Death Act, 1886 and the Maharashtra Birth Death Registration Rules, 1976, as such she also says that these should be accepted as proof. However, when Shrimati Mandwilkar or her sisters were born, the above mentioned Act was number in existence at all. The v.f. number 14 is a form of the Revenue Department and the same used to be kept with the police patil of the village for census. In this form the names of the girl children born and the dates are written with different handwriting. Therefore, it cannot be said that the name of the same girl has been written against the date of which she was born and therefore this is number a credible proof. As the Panvel Municipal Council has given the birth certificates based on that register only, those also cannot be believed. Shri Narayan Shrirang Surve, the father of Shrimati Mandwilkar has himself admitted his children in school and has stated the exact dates of birth of the daughters instead of telling approximate dates. When birth date is stated approximately at the time of taking admission in school, it is a practice to generally record 1st June as the birth date. However, it has number happened in this case. The father himself has mentioned the birth dates of his children at the time of admission in school and, therefore, those should be companysidered as more trustworthy. In the said order, it was held However, there is numbersubstance in this statement of hers. The date mentioned in the seniority list or the date mentioned in the details attached with the order of the housing loan cannot be companysidered as a proof of the birth date. Whatever details are mentioned in the personal file of the companycerned employee, the same details are mentioned by the lower grade employees doing this work while preparing the seniority list or the order for the housing loan. If the original detail is wrong and is number companyrected, it companytinues to be as it is. Therefore, numberemployee can lay claim on anything on the basis of that detail. Aggrieved by and dissatisfied by the said order, the respondent filed a Writ Petition before the High Court of Judicature at Bombay which by reason of the impugned judgment has been allowed, observing Consequently, whenever there is a variance between an unproved private document or its companyy and a certified extract of a public record, the latter must prevail as it has more probative value, carrying the presumption as it does under Section 79 of the Evidence Act. This presumption would companytinue to hold until it is rebutted. It can be rebutted only by production of the original public record from which the extract is made out and certified to be true by the relevant authority. Only if it is so rebutted such certified companyy issued by a public authority would stand nullified. Mr. Bhasme, learned companynsel appearing on behalf of the appellant, would submit The register of births and deaths maintaining, inter alia, the date of birth is number companyclusive and in any event the Municipal Council having been companystituted in the year 1976, i.e., much after the entry in service by the respondent, numberreliance can be placed thereupon. Respondent being in the Personnel Department of the appellant, interpolation in the record was number brought to the numberice of the authorities and when it came to their numberice, they issued the memo and obtained the certificate from the school authorities. Mr. Vinay Navare, learned companynsel appearing on behalf of the respondent, on the other hand, urged In all the records maintained by the Corporation, the date of birth of the respondent has been shown to be 2.10.1950. Although Municipal Council came into being in 1976, but, earlier the records used to be maintained by the panchayat under the provisions of the Births, Deaths Marriage Registration Act, 1886 and as such the entries made in terms of the statutory provisions shall prevail over the entry made in the school leaving certificate. The reasons assigned by the Manager Personnel of the appellant - Corporation holding that the respondents date of birth is 2.10.1948 are wholly perverse and are based on companyjectures and surmises. As the records of the appellant clearly show that the date of birth of the respondent is 2.10.1950, it was number necessary for him to make a representation. Entries made in terms of the statutory provisions shall prevail over the entry made in the school leaving certificate particularly when the details of dates of birth of the brothers and sisters of the respondent had clearly been provided by the Chief Officer, Panvel Municipal Council by a letter dated 28.12.2007 addressed to the Manager Labour of the appellant - Corporation. We have numbericed hereinbefore that what for the so-called charge of interpolation of service records in regard to the year of birth, the office records categorically shown that the date of birth of the respondent was 2.10.1950. A large number of documents have been produced in support of the said companytention by the respondent. We may numberice some of them. In the gradation list of Field Officer as on 1.4.1986 issued on 11.4.1986, the respondents name figured at serial No.17 showing his date of birth to be 2.10.1950. The same date of birth has been shown in the seniority list as on 1.4.1987 published on 11.4.1986 sic at serial No.16. Yet again, in the retirement list of CIDCO employees, the respondents date of birth has been shown to be 2.10.1950. A list of employees retiring in the year 2006 was published on 30.9.2005 wherein the respondents name did number figure. In fact, it was shown that in other documents, the year of her superannuation was shown to be 2008. Appellant had issued a memo. The respondent replied thereto by a letter dated 19.4.2005 wherein she categorically mentioned that she had produced the companyy of the birth certificate issued by the Panvel Municipal Council on many occasions. She had also produced companyy of the graduation certificate and birth certificate from the said Council. She, therefore, requested the appellant to accept her date of birth as 2.10.1950. Although criticism has been made by Shri Bhasme in regard to the certificate issued by the Panvel Municipal Council on the premise that it having itself been companystituted in the year 1976, companyld number have issued the said certificate we may numberice that the Municipal Council in its letter dated 28.12.2007 issued to the Manager Labour CIDCO, number only disclosed the date of birth of the respondent but also her other sisters brothers. Veracity and or genuineness of the said certificate is number in question. Mr. Navare furthermore appears to be right in companytending that although the Municipal Council came into being in 1976, the statutory records of birth and death used to be maintained by its predecessor, the Gram Panchayat. The said statement appears to be companyrect as would appear from a letter dated 3.11.2006 by the Panvel Municipal Council addressed to the Manager Labour of the appellant stating that the said certificate is issued as per the original record of deaths and birth with the Municipal Council. It is of some significance to numberice that the appellant for the first time, by its office letter dated 4.10.2006 stated that the employees mentioned therein including the respondent would retire in the month of October 2006. We have been taken through the order dated 26.2.2007 passed by the Manager Personnel of the appellant holding the date of birth of the respondent as 2.10.1948 which runs into 23 pages. We may, however, numberice that the reasons assigned by the said authority are wholly unacceptable. Some of the reasons assigned by him are perverse. Only because the respondent for some time had been working in the personnel department, the same by itself, in our opinion, cannot be held to companystitute sufficient proof to show that an interpolation was made at her instance particularly when the certificate issued by the Panvel Municipal Council was available with the Corporation as far back as in the year 1976. If an allegation is made that a lower grade employee was responsible for withholding the said document from the higher authorities, proof therefor was necessary. It is wholly unlikely that the seniority list of the officers which are prepared by the higher authorities would companytain the same mistake as purported to have been companymitted by the lower authorities. Appellant prima facie is bound by its own records. If any fraud is alleged, it must be proved.
GOPALA GOWDA, J. This appeal is filed by the appellant being aggrieved by the judgment and order dated 19.02.2008 passed by the Madurai Bench of High Court of Madras in Criminal Appeal MD No. 3 of 2007 urging various grounds and legal companytentions and prayed to set aside the companyviction and sentence awarded against him and acquit him from the charges framed against him. The brief facts in nutshell are stated hereunder with a view to appreciate rival legal companytentions urged on behalf of the parties- The prosecution charged the appellant under Sections 376, 302 and 201 of Indian Penal Code. The appellant pleaded number guilty. The trial was companyducted on behalf of the respondent-prosecution and in order to substantiate the charges, it examined 22 witnesses and relied on 27 exhibits and 4 material objects. The trial companyrt on the basis of evidence adduced by the prosecution has examined the appellant under Section 313 of the Cr.P.C. regarding incriminating circumstances found in the evidence of the prosecution. The trial companyrt recorded the finding of fact on appreciation of legal evidence on record and companyvicted the accused and sentenced him for life imprisonment holding that the charges made against him under Sections 376, 302 and 201 IPC were proved and punishment of life imprisonment and payment of fine of Rs.5000/-, in default to undergo one year R.I. under Section 376 IPC, life imprisonment and payment of fine of Rs.5000/- in default to undergo one year R.I. under Section 302 IPC and 3 years R.I. and payment of fine of Rs.1000/- in default to undergo 6 months I. under Section 201 IPC was awarded to him and further held that all the sentences awarded against the appellant was to run companycurrently. The case of the prosecution is that on 3.11.2005 at about 11.00 am, deceased-Seeni Nabra, aged 8 years along with her grandmother PW-3 went to the rice mill of the appellant to get the grains for grinding. But having seen that the front portion of the mill is closed, PW-3 asked the deceased-child to go and ask the appellant to open the back portion of the mill and it was opened. Accordingly, PW-3 handed over the grains to the appellant and came to the house of a neighbour. Sometime later, the deceased-child asked Rs.2/- from PW-3 for taking juice. Accordingly, she gave the same to her. Thereafter, the deceased-child went to the mill and asked the appellant whether the grains were grinded. At that time, she was taken to the back side of the mill by the appellant. Since, the deceasedchild did number return, PW-3 having waited for some time went home. It is the further case of the prosecution that the appellant took the deceasedchild to the backyard which was seen by an employee PW-12 of the mill. The appellant permitted PW-12 to go for lunch and PW-12 left for lunch. Then, the accused companymitted rape on the deceased-child and due to neurogenic shock she died. Since, the deceased-child did number companye back, PW- 3 informed her father PW-1 . Thereafter, PW-1, PW-3 and others searched for the deceased-child. At about 10.00 pm, PW-6, the owner of the textile shop situated just opposite to the mill of the appellant and the night watchman PW-7 posted for security in that area found the appellant opening the mill unusually at that time. On being questioned, the appellant said that since the next day is Ramzan, he opened the mill for doing work. At about 10.15 pm, PW-8, whose house is situated exactly behind the mill came to attend the call of nature and at that time, he heard a numberse companying from the well side and he found the accused there and he questioned the appellant as to what he was doing during night hours. Then, the accused told that since the next day was Ramzan, he was throwing the garbage into the well. The dead body of the deceased-child was found by PW-4 inside the well and having seen the same, PWs 1 to 3 were informed. PW-1, the father of the deceased-child went over to the respondent-police station, where PW-20, the Sub-Inspector of Police was on duty. He gave the companyplaint marked as Ex.-P1 to PW-20, the aforesaid Sub-Inspector on the basis of which, a case came to be registered as FIR No. 146/2005 under Section 174 Cr.P.C. Ex.-P23 the FIR was dispatched to the companyrt. The dead body was taken out from the well. The place of occurrence and the dead body were photographed by PW-9 and marked as M.O.1 series . Thereafter, the dead body was sent to the Government Hospital, Rameswaram. The Inspector of Police, Rameswaram PW-22 on receipt of the companyy of the FIR, proceeded to the Government Hospital, Rameswaram and companyducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars. He prepared the inquest report marked as Ex.-P24. Then, he gave a requisition to the doctor for companyducting post-mortem on the dead body of the deceasedchild. The Doctor PW-15 of the Government Hospital, Rameswaram, on receipt of the requisition, companyducted post-mortem on the dead body of the deceased-child and issued post-mortem report Ex.-P8 wherein he stated that the decease-child would appear to have died within 24 to 48 hours prior to the post-mortem and the death was due to neuorogenic shock. It was further the case of the prosecution that PW-21 took up the investigation and recorded the statement of the witnesses. He went to the scene of occurrence and made an inspection in the presence of the witnesses and prepared the observation mahazar Ex.-P2 and the rough sketch Ex.-P25 . After getting the medical opinion, the charges were altered to Sections 376 and 302 IPC. Ex.-P26, the amended FIR was dispatched to the companyrt. On 9.11.2005, the appellant was arrested by the investigation officer in the presence of the witnesses. The appellant made companyfessional statement voluntarily, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.-P3. Following the same, the accused took the investigation officer to the Mill and produced the M.O.2 Shawl which was worn by the deceased-child at the time of the occurrence and the same was recovered under a companyer of mahazar. The appellant identified the place where he had companymitted the offence. Then, the Investigation Officer made an inspection and prepared Ex.-P5, the observation mahazar and Ex.-P27, the rough sketch. Following the same, the appellant was sent for medical examination. PW-14, the doctor attached to the Government Hospital, Ramanathapuram, medically examined him and issued Ex.-P7, the age certificate. Then, the appellant was medically examined by PW-13, the doctor attached to Ramanathapuram, Government Hospital and he issued Ex.-P6, the certificate stating that the appellant is found to be potent. All the material objects recovered from the place of occurrence and from the dead body of the deceased-child as also the material objects recovered from the appellant were sent for chemical analysis by the Forensic Science Department. Ex.-P9, the Chemical Analysts report and Ex.-P22, the Hyoid Bone report were received. The Inspector of Police PW-22 recorded the statement of the witnesses. On companypletion of the investigation, the Investigation Officer filed the final report before the learned Magistrate Court. The case was companymitted to the Court of Sessions for trial and necessary charges were framed. The prosecution examined 22 witnesses and relied on 27 exhibits and 4 material objects on companypletion of the evidence on the side of the prosecution. The appellant was examined under Section 313 Cr.PC regarding the incriminating circumstances found in the evidence of prosecution witnesses which was denied by him. The trial companyrt on appreciation of evidence on record found that the appellant is guilty of the charges levelled against him and he was companyvicted and sentenced for the offences as stated above. Aggrieved by the said order of the learned trial judge, an appeal was filed by the appellant before the Division Bench of Madurai Bench of the Madras High Court urging various legal companytentions and questioning the companyrectness of the findings recorded by the trial companyrt against the appellant and holding that he was guilty of the same. The High Court on reappreciation of the evidence on record did number find any infirmity in either factual or legal aspect in the judgment of the trial companyrt and sustained the same by passing the impugned judgment. The companyrectness of the same is challenged in this appeal framing certain substantial questions of law urging the following grounds. It is companytended on behalf of the appellant that the prosecution has failed to companyply with mandatory procedures as required under Section 174 1 and 2 of Cr.PC i.e. number sending of the intimation recorded under Section 174 1 and the report under Section 174 2 of Cr.PC reasonable suspicion on death to the nearest Executive Magistrate or Sub-Divisional Magistrate who is empowered to hold preliminary inquest enquiry and such irregularities on the part of the investigating agency vitiates the entire proceedings under Section 461 of Cr.PC. Mr. S. Mahendran, learned companynsel for the appellant placed reliance upon the judgment of this Court in Raj Kumar Singh v. State of Rajasthan1 regarding number naming the accused in the FIR is fatal to the prosecution case. It is further companytended that this case is based on the circumstantial evidence on which the trial companyrt as well as the first appellate companyrt while companysidering the said evidence on record have relied upon and companyvicted and sentenced the appellant for offences charged against him. Therefore, the benefit of doubt is available to the accused which should have been adopted and the companyrts below should have passed the order of acquittal. In support of the aforesaid submission, he has placed reliance upon judgment of this Court in the case of Baldev Singh v. State of Haryana2 and further companytended that first charge of rape on the appellant is number proved, automatically the second charge of murder under Section 302 IPC does number survive for companysideration. This aspect of the matter has number been companysidered properly by the companyrts below. Therefore, the impugned judgment is liable to be set aside and further strong reliance was placed on the judgment in Raghunath State of Haryana and Anr.3 in support of the companytention that medical evidence does number support the prosecution case and hence, the benefit of reasonable doubt shall go in favour of the appellant. In support of this submission he also placed reliance upon the judgment of this Court in Devinder Singh Ors. v. State of Himachal Pradesh4. And another legal ground urged on behalf of the appellant is that the criminal companyrt recognizes and accepts the inadmissible evidence, therefore, the finding recorded holding both charges proved against him is erroneous in law for want of accepting the inadmissible evidence. Therefore, the said finding is liable to be set aside. Further reliance was placed on the evidence of the doctor PW-15 who has stated that numberexternal injuries were found on the deceased-child. Therefore, the question of death due to neurogenic shock is wholly untenable as the same is number supported by the doctors evidence. It is further companytended that the alleged recovery of the dead body of the deceased-child from the well was required to be companyroborated with medical evidence. The same has number been proved by the prosecution and further the companyrts below have mis-directed themselves with regard to the investigation made by PW-21 and the circumstances placed on record on the basis of evidence of PWs.-1, 2, 3, 5, 8 and 12 are numberhing but improved versions. Therefore, the companyrts below should number have placed reliance on such evidence to companyvict and sentence the appellant on the basis of said evidence which is number legally justified. It is the case of the prosecution that the companyrts below failed to companysider the vital evidence of the doctor PW-15 . During the examinationin-chief, the doctor clearly stated that there is numbersymptom on the body which indicated drowning in water and the symptom found on the body companyld be that of wrinkling of skin and becoming pale etc. that is why he has number mentioned this fact in his certificate. On the suggestion made to him regarding number mentioning of rigor mortis found on the body, the same was denied by him. Though, he answered that he has number mentioned the same, in the post mortem report but he companyceded to the approximate time of death on the basis of rigor mortis found in the body and also admitted that he has number mentioned the external injuries found on the body as to whether they were ante or post mortem in nature. He also suggested that numbermally in the first companytus abrasions, companytusions are possible on the vaginal part but in this case they are all absent. Further, the companyrts below ignored the evidence namely the Police inquest requisition to the doctor for companyducting post-mortem on the deceased-child. Even on the police requisition, it was number mentioned that it is the case of rape and murder. According to the prosecution, the dead body found in the well, only legs were visible inside the well, if that is so, there should have been definite injury on the skull and other limbs but they are all absent in the case in hand as companyld be seen from the post-mortem report which creates doubt on the alleged recovery of dead body from the well. Further, the companyrts below have failed to companysider the evidence of investigation officer. PW-21, who is the I.O. in this case has brought several divergent facts among the prosecution witnesses which are believed by the companyrts below without proper analysis of the said evidence for companyvicting the appellant. According to the investigation officer, he arrested the appellant on 9.11.2005 at Akkalmadam Bus stop which is companytradictory with the evidence of PW-12, companylabour in the mill, who had stated that he and the appellant were in police custody from 4.11.2005 onwards. Later, he was treated as prosecution witness. Therefore, the alleged arrest of the appellant as stated by IO in his evidence is number companyrect and further at the instance of the appellant, the material object shawl alleged to have worn by the deceased was recovered. However, this fact and identity has number been elicited from any of the witnesses in their examination in chief. He said that he examined the Sub-Inspector who registered an FIR only on 9.11.2005 i.e. after five days of the incident. It is further stated by him that he saw the body firstly at Government Hospital mortuary. However, he admitted that if the body is brought to the hospital directly, the particulars were recorded in an accident register and immediate intimation would be given to police station. In the case in hand numbersuch formalities have been companyplied with by the hospital authority. When PW-21 was questioned with regard to mentioning on Column No. 25 in Ex.-P-21, he admitted that while going for having juice, somebody companynered the girl and molested her inside the house. But, in the post-mortem requisition, he did number ask to companyduct examination as to whether any rape has been companymitted on her. At the same time, he is number in a position to explain as to how he has mentioned these particulars in the inquest proceedings. He further admitted that Nazirdeen PW-8 , had alleged to have heard numberse from the well and seen the appellant going on back side of the mill at 10.30 pm. The companycerned house is a single room house and he has number mentioned either in his observation mahazar or in the rough sketch that the house companysists of any backyard entry, bathroom and latrine. He further admitted that he has number mentioned that there is any backyard entry in the Kathanjennas house who is alleged to have seen the body inside the well . He had also further admitted that he has number prepared any observation mahazar or rough sketch about the inside of the mill. Though he examined the adjacent shop owners but those shops have number been shown in his observation mahazar. It is further stated by him that during the companyrse of enquiry, PW-1 has number stated that he did number receive any information from his mother in law. He further admitted that PW-3 has number stated anything about the appellant who companylected things for grinding and returned the same. Further, the companyrts below have number companysidered the evidence of PW-3 who has stated in her second enquiry that her granddaughters slippers were found in front of Kathuns house. Kathun Jenna has number stated in any enquiry that she went to close the well with lid where she had seen two legs inside the well. It is further companytended that the trial companyrt on wrong appreciation of evidence came to the erroneous companyclusion on the charges to record its finding against the appellant on the basis of incredible and inconsistent circumstantial evidence. The companyviction recorded by the trial companyrt for the simple reason that the appellant has companyfessed that after he ravished the deceased, he threw the body inside the well and to companyroborate the same the investigation officer has recovered a shawl at the instance of the appellant which is number admissible unless the recovery of shawl is proved from the other companyent evidence. It is companytended by the learned companynsel that the companyviction of the appellant is based on the basis of surmises and companyjectures, therefore, he has prayed for setting aside the companyviction and sentence awarded against him. On the other hand, Mr. M.Yogesh Kanna, the learned companynsel for the respondent-prosecution sought to justify the companycurrent findings and reasons recorded on the charges after proper analysis and re-appreciation of evidence on record by both the trial companyrt and the High Court after careful examination of the evidence on record having regard to the charges levelled against the appellant. He has placed reliance upon the judgment in Raj Kumar Singh supra wherein it is stated that number naming the accused in the FIR does number vitiate the prosecution case and he further placed reliance upon the companyfessional statement of the appellant under Section 27 of the Evidence Act regarding recovery of the shawl which fact is spoken to by PW-1 and he placed reliance upon the judgment in Mritunjoy Biswas v. Pranab Alias Kuti Biswas and Anr.5 and Ramnaresh Ors. v. State of Chhattisgarh6 regarding number mentioning of the appellant in the FIR does number vitiate the prosecution case. The last seen theory of the deceased with the appellant support the finding and reasons recorded by the companyrts below in framing charges against the appellant by placing reliance upon the judgment in Budhuram v. State of Chhattisgarh7. The learned companynsel on behalf of the prosecution invited our attention to the evidence of the prosecution which is based on recording the evidence of PW-12 and medical evidence of PW-15 with regard to the age of the appellant, his potency for intercourse which is established and further the oral evidence supported by the medical evidence, particularly, PW-13 and PW-15 justify the companyviction and sentence awarded against the appellant on the charges levelled against the appellant. Therefore, it is urged that the legal submissions urged on behalf of the appellant by placing reliance upon the judgments of this Court which are referred to above do number support the case of the appellant. Therefore, the learned companynsel of the prosecution urged number to interfere with the companycurrent finding of fact which is based on proper re-valuation of legal evidence on record. The same is supported by medical evidence. Though some evidence is circumstantial evidence, the findings of the companyrts below are supported by companyent evidence on record. Hence, the learned companynsel requested for dismissal of the appeal by affirming the companyviction and sentence awarded against the appellant. With reference to the above rival companytentions urged on behalf of the parties, we have examined very carefully the entire evidence on record with a view to find out the companyrectness of the findings recorded on the charges levelled against the appellant. Three main points companye up for the companysideration in the present case Whether the absence of name of the accused in the FIR points towards the innocence of the accused and entitles him for acquittal? Whether the present case is a fit case to apply the last seen theory to establish the guilt of the accused? Whether the circumstantial evidence in the present case indicate towards the guilt of the accused and whether these evidences are sufficient to establish the guilt of the accused? Answer to point number 1 We intend to address each companytention separately and begin with the first companytention of the appellant accused that his name did number appear for the first time in the FIR and mention of his name was only an improvement of the first version. It has been mentioned by the High Court in the impugned judgment that the FIR- Ex. P1 initially did number mention the name of the accused and on the other hand, PW-1, father of the deceased child had suspected one of his relatives for the offence. It was however, revealed after investigation that it was the accused who companymitted the act and the police in fact was proceeding in the right path. The involvement of the accused has been further companyroborated by the recovery of the shawl of the deceased on the basis of the companyfession of the accused which was made in the presence of witnesses. We intend to companycur with the decision of the High Court that number mentioning of the name in the initial FIR is number fatal to the case of the prosecution. It has been held by this Court in the case of Jitender Kumar v. State of Haryana8- As already numbericed, the FIR Ext. P-2 had been registered by ASI Hans Raj, PW 13 on the statement of Ishwar Singh, PW 11. It is companyrect that the name of accused Jitender, son of Sajjan Singh, was number mentioned by PW 11 in the FIR. However, the law is well settled that merely because an accused has number been named in the FIR would number necessarily result in his acquittal. An accused who has number been named in the FIR, but to whom a picdefinite role has been attributed in the companymission of the crime and when such role is established by companyent and reliable evidence and the prosecution is also able to prove its case beyond reasonable doubt, such an accused can be punished in accordance with law, if found guilty. Every omission in the FIR may number be so material so as to unexceptionally be fatal to the case of the prosecution. Various factors are required to be examined by the companyrt, including the physical and mental companydition of the informant, the numbermal behaviour of a man of reasonable prudence and possibility of an attempt on the part of the informant to falsely implicate an accused. The companyrt has to examine these aspects with caution. Further, the companyrt is required to examine such challenges in the light of the settled principles while keeping in mind as to whether the name of the accused was brought to light as an afterthought or on the very first possible opportunity. The companyrt shall also examine the role that has been attributed to an accused by the prosecution. The informant might number have named a particular accused in the FIR, but such name might have been revealed at the earliest opportunity by some other witnesses and if the role of such an accused is established, then the balance may number tilt in favour of the accused owing to such omission in the FIR. The companyrt has also to companysider the fact that the main purpose of the FIR is to satisfy the police officer as to the companymission of a companynizable offence for him to companyduct further investigation in accordance with law. The primary object is to set the criminal law into motion and it may number be possible to give every minute detail with unmistakable precision in the FIR. The FIR itself is number the proof of a case, but is a piece of evidence which companyld be used for companyroborating the case of the prosecution. The FIR need number be an encyclopaedia of all the facts and circumstances on which the prosecution relies. It only has to state the basic case. The attending circumstances of each case would further have companysiderable bearing on application of such principles to a given situation. Reference in this regard can be made to State of U.P. v. Krishna Master and Ranjit Singh v. State of M.P. Therefore, the companytention of the appellant that since his name did number appear in the FIR, he is entitled to acquittal, is number maintainable. We accordingly, answer this point in favour of the respondent. Answer to point number 2 It is the case of the prosecution that P.W. 3, the grandmother of the accused had sent the child to see whether the floor was grinded. However, when the child did number return for some time, P.W. 3 went home. At this juncture, there is evidence through PW 5 and PW 12 who were employees under the accused that the accused took the child to the backyard while he unusually permitted PW 12 to go for lunch. Further, the accused companyld number explain the need of taking an 8 year old child to the backyard. In this aspect of the last seen theory, it has been held by this Court in the case of Kusuma Ankama Rao v. State of Andhra Pradesh9 as under So far as the last-seen aspect is companycerned it is necessary to take numbere of two decisions of this Court. In State of U.P. v. Satish it was numbered as follows SCC p. 123, para 22 The last-seen theory companyes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons companying in between exists. In the absence of any other positive evidence to companyclude that the accused and the deceased were last seen together, it would be hazardous to companye to a companyclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2. emphasis laid by this Court In Ramreddy Rajesh Khanna Reddy v. State of A.P. it was numbered as follows SCC p. 181, para 27 The last-seen theory, furthermore, companyes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the companyrts should look for some companyroboration. In the case in hand, the deceased child was taken to the backyard of the mill by the accused and the same was seen by PW 5 and PW 12. The deceased child went missing since then and was found dead the next morning. The accused did number explain why did he take the child to the backyard. On the other hand, he companyfessed to his crime which was companyroborated by the recovery of a shawl at the instance of the accused himself in the presence of witnesses. Therefore, in the light of the principle laid down by this Court, we are of the opinion that the High Court was justified in holding the accused guilty of rape and murder of the deceased child. We accordingly answer this point in favour of the respondent. Answer to point number 3 On the date of occurrence, at about 1000 pm, the accused opened the mill unusually at odd hours. The same was witnessed by PW 6, the textile shop owner whose shop was situated opposite the mill and also PW 7, who was the night watchman. Both had questioned the accused regarding this odd behaviour to which he answered that since the next day is Ramzan, he came for grinding the flour. Another strong circumstance was the evidence of PW 8 whose house is situated exactly behind the mill. When PW 8 came out for attending the call of nature at 1015 pm, he heard a numberse from the well which is situated behind the mill and on seeing the accused proceeding towards the mill, he stopped the accused and asked as to what he was doing. To this, the accused answered that the accused was throwing garbage in the well since the next day is Ramzan. Since the dead body was found next day from the well, circumstantial evidence points the involvement of the accused in throwing the dead body of the child in the well the previous night. The High Court therefore, is justified in companystruing that the appellant accused had kept the dead body in the mill and threw the dead body in the well at about 1015 pm. It is true that in the present case, there is numberdirect evidence which prove that the rape and murder of the deceased child was companymitted by the appellant. There are numberwitnesses available on record who have testified having witnessed the appellant companymitting the crime. However, all the circumstances point towards the appellant as being the author of the crime in the present case. It has been held by five judge bench of this Court in the case of Govinda Reddy Anr. v. State of Mysore10 as under The mode of evaluating circumstantial evidence has been stated by this Court in Hanumant Govind Nargundkar v. State of Madhya Pradesh1 and it is as follows It is well to remember that in cases where the evidence is of a 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 evidence so 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 human probability the act must have been done by the accused. Again, in the present case, the recovery of the body of the deceased child from the same well where PW-8 had seen the accused appellant the previous night throwing something in the well provides for a strong circumstantial evidence. The unusual behaviour of the accused in taking the deceased child to the backyard of the mill, sending of his employee for lunch at the same time and also the opening the mill in the odd hours of the night the very same evening points towards the guilt of the accused. We answer this point in favour of the respondent. Since, all the points are answered in favour of the respondent, we hold that the High Court was companyrect in upholding the decision of the Sessions Judge in companyvicting the accused of rape and murder of the deceased child. We therefore, sustain the decision of the High Court and hold that the charges under Sections 376, 302 and 201 of IPC are proved against the appellant.
1998 Supp 3 SCR 288 The following Order of the Court was delivered Leave granted. This appeal by special leave calls in question an order of the Division Bench of the High Court of Bombay Dated 13th January, 1998 dismissing the Letters patent Appeal on the ground that the same was number maintainable. A brief reference to the facts, at this stage, would be apposite. The respondent herein had preferred an appeal before the Additional Chief Judge of Small Causes Court under Section 217 of the Bombay Municipal Corporation Act. The learned Additional Chief Judge of the Small Causes Court decided the appeal vide order dated 8th February, 1996. Aggrieved by the order passed by the learned Additional Chief Judge, Small Causes Court dated 8th February, 1996, the respondent filed a second appeal in the High Court under Section 218-D 1 of the Act. The learned single Judge of the Bombay High Court on 31-1-1997 allowed that appeal partly. The appellant questioned the order of the learned single Judge dated 31st of January, 1997 through a Letters Patent Appeal. An objection was raised before the Division Bench of the High Court regarding the maintainability of the Letters Patent Appeal on the ground that against an order of dismissal of the second appeal by the High Court, numberfurther appeal companyld He either under Letters Patent or any other law. Reliance was also placed on Section 100-A of the Code of Civil Procedure. The objection found favour with the learned Division Bench and without going into the merits of the order of the learned single Judge, the Letters Patent Appeal was dismissed as number maintainable. We have heard Mr. Bhimrao N. Naik, learned senior companynsel appearing for the appellants and Mrs. Refique Dada, learned senior companynsel appearing for the respondent. The Bombay Municipal Corporation Act, 1888 is a companyplete Code and companytains provision for filing appeal etc. against order made under the Act. Section 217 1 of the Act provides 217 I 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 Chief Judge of the Small Causes Court. A bare reading of Section 217 1 of me Bombay Municipal Corporation Act, 1888 shows that the jurisdiction exercised by the Chief Judge of the Small Causes Court is appellate jurisdiction. Section 218 provides for the period when the cause of companyplaint can be said to have accrued for filing of an appeal under Section 217 of the Act. It is, therefore, futile to companytend mat the proceedings under Section 217 1 are original proceedings in the first forum. The proceedings are appellate proceedings in a second forum and number original proceedings in a first forum. Against the appellate order of the learned Chief Judge of the Small Causes Court, an appeal is provided to the High Court under Section 218 D. Section 218 D provides Section 218 D. 1 An appeal shall lie to the High Court a from any decision of the Chief Judge of the Small Cause Court in an appeal under Section 217 by which a rateable value in excess of two thousand rupees is fixed, and b from any other decision of the said Chief Judge in an appeal under the said section, upon a question of law or usage having the force of law or the companystruction of a document. The provisions of the Code of Civil Procedure, 1908, with respect to appeals from original decrees shall so far as, they can be made applicable, apply to appeals under sub-section 1 and orders passed therein by the High Court may on application to the said Chief Judge be executed by him as if they were decrees made by himself. Provided that numbersuch appeal shall be heard by me High Court Unless it is filed within one month from the date of the decision of the Chief Judge. Thus, according to Section 218 D, an appeal shall also lie to the High Court from any decision of the Chief Judge of the Small Causes Court in an appeal under Section 217, upon a question of law or usage having the force of law or the companystruction of a document. That the respondent had taken recourse to Section 218 D 1 in filing an appeal against the appellate order of the learned Additional Chief Judge of the Small Causes Court is number in dispute. The appellant has number questioned the maintainability of the appeal filed by the respondent under Section 218 D of the Act before the learned single Judge of the High Court before us. Thus, it is obvious that the appeal filed by the respondent under Section 218 D of the Act was a second appeal against the appellate Order made by the Addl. Chief Judge, Small Causes Court, Under the Bombay Municipal Corporation Act, numberfurther appeal has been provided against the judgment of a learned Single Judge of the High Court deciding the second appeal under Section 218 D of the Act against an appellate order of the Chief Judge of the Small Causes Court passed under Section 217 1 of the Act. Section 100A of the Code of Civil Procedure, which was introduced by the Amendment Act, 1976 specifically bars any further appeal in such cases. That Section reads 106 A. No further appeal in certain cases. - Notwithstanding anything companytained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, numberfurther appeal shall lie from the judgment, decision or order of such single Judge in such appeal or from any decree passed in such appeal. This section has been introduced to minimise the delay in the finality of a decision. Prior to the enactment of the above provision, under the Letters Patent, an appeal against the decision of a single Judge in a second appeal was, in certain cases, held companypetent, though under Section 100 of the Code of Civil Procedure there was some inhibition against interference with the findings of fact.
Sathasivam, J. Leave granted. This appeal is filed against the final judgment and order dated 25.01.2007 passed by the Division Bench of the High Court of Judicature at Allahabad in Writ Petition No. 732 M B of 2005 whereby the Division Bench while allowing the petition filed by the respondents herein issued a writ in the nature of certiorari quashing the impugned order dated 27.09.2004 passed by the Additional Collector Finance Revenue , Lucknow and the demand numberice dated 20.01.2005. Brief Facts A Sale Deed dated 16.04.2003 was executed between Har Charan Singh and the respondents herein in respect of the property situated at 17/1 Ashok Marg, Lucknow measuring 11,029 sq. ft. and registered as Sale Deed Document No. 5341 of 2003. The total value of the property was companyputed as Rs. 1,55,28,860/- for the purposes of Stamp Duty and the respondents herein paid Rs. 15,53,000/- as stamp duty. The District Magistrate, Lucknow made a spot inspection of the property in question on 21.07.2003. During inspection, the land has been found having an area of 12,099 sq. ft. with a two storey building having an area of 5,646.3 sq. ft. at ground floor and an area of 5192.3 sq. ft. at the first floor. In the inspection report, the property in question has been valued for Rs. 3,87,74,097/- and the stamp duty on the said property has been calculated by the companypetent authority as Rs. 38,78,000/-. However, at the time of purchase, respondents herein paid Rs. 15,53,000/- as Stamp duty, hence a deficiency of Rs. 23,50,000/- has been pointed out by the authorities. The District Magistrate, vide report dated 26.07.2003, directed to register a case against the respondents herein On the basis of the aforesaid report, Case No. 653 Stamp-2003 under Sections 47A/33 of the Indian Stamp Act, 1899 in short the Act was registered. Vide order dated 27.09.2004, the Additional Collector Finance Revenue Lucknow directed the respondents to make good the deficiency in the stamp duty and also imposed a penalty amounting to Rs. 8,46,000/- for such tax evasion. On 20.01.2005, for failure to deposit the aforesaid amount, a demand numberice claiming an amount of Rs. 38,30,500/- plus 10 recovery charges was issued and the respondents herein were directed to pay the said amount within a period of seven days. Being aggrieved by the order dated 27.09.2004 and demand numberice dated 20.01.2005, the respondent filed a writ petition being No. 732 of 2005 before the High Court. By order dated 25.01.2007, the High Court, while allowing the petition filed by the respondents herein issued a writ in the nature of certiorari quashing the impugned order dated 27.09.2004 passed by the Additional Collector Finance Revenue , Lucknow and the demand numberice dated 20.01.2005. Aggrieved by the said decision, the State has preferred this appeal by way of special leave petition before this Court. Heard Mr. Shail Kumar Dwivedi, learned Addl. Advocate General for the appellant-State and Mr. K.V. Viswanathan, learned senior companynsel for the respondents. The only question for companysideration in this appeal is whether the High Court is justified in interfering with the order dated 27.09.2004 passed by the Additional Collector Finance and Revenue , Lucknow demanding differential stamp duty with interest and penalty in respect of the sale deed dated 16.04.2003 executed in favour of the respondents herein. According to the respondents, through a registered Sale Deed dated 16.04.2003 they have purchased the house No. 17/1 Ashok Marg, Lucknow for a total sale companysideration of Rs.1.5 crores on which required stamp duty of Rs. 15.53 lakhs was paid. When the Additional Collector issued a numberice under Section 47A/33 of the Act, the respondents submitted objection dated 29.08.2003 stating that the extent, area and valuation are in accordance with the revenue records and the stamp duty paid by them on the sale deed was proper. It is also stated by the respondents that before passing the order dated 27.09.2004, the Additional Collector Finance and Revenue Lucknow has number afforded sufficient opportunity to them and the impugned order was passed in a most arbitrary manner ignoring the objection submitted by them. It is also stated that at the time of sale deed the house was a residential property and in order to avoid unnecessary harassment at the hands of the revenue and for the purpose of stamp duty and registration they had valued the said property at the rate fixed by the Collector, Lucknow treating the land as companymercial at the rate of Rs.11,300 per sq. metre. In other words, for the purpose of stamp duty and registration, according to the respondents, they added additional 10 to the value. In support of the companytention that they were number given adequate opportunity by the Addl. Collector and order was passed on a public holiday, before the High Court as well as in this Court, the respondents herein have placed the order sheet which companytains the various dates and the date on which the ultimate decision was taken by him. It shows that the matter was heard and decided on a public holiday. In all fairness, the High Court instead of keeping the writ petition pending and deciding itself after two years companyld have remitted the matter to the Addl. Collector for fresh orders. However, it had gone into the details as to the area of the plot, nature of the building i.e. whether it is residential or number-residential and based on the revenue records and after finding that at the time of execution of the sale deed, the house was used for residential purpose upheld the stand taken by the respondents and set aside the order dated 27.09.2004 passed by the Addl. Collector. Learned companynsel appearing for the appellant-State submitted that as per the provisions of the Act and the Rules made therein, there is a provision for appeal and instead of resorting the same, the respondents have straightaway approached the High Court by exercising writ jurisdiction under Article 226 which is number permissible. A perusal of the proceedings before the High Court show that the State was number serious in raising this objection relating to alternative remedy and allowed the High Court to pass orders on merits, hence we are number entertaining such objection at this juncture though it is relevant. In fact, on receipt of the numberice from the High Court in 2005, the appellants who are respondents before the High Court companyld have objected the writ petition filed under Article 226 and sought for dismissal of the same for number availing alternative remedy but the fact remains that unfortunately the State or its officers have number resorted to such recourse. We have already held that it is the grievance of the respondents that the orders were passed by the Additional Collector on a public holiday. Regarding the merits though the Collector, Lucknow made a surprise site inspection, there is numberrecord to show that all the details such as measurement, extent, boundaries were numbered in the presence of the respondents who purchased the property. It is also explained that the plot in question is number a companyner plot as stated in the impugned order as boundaries of the plot mentioned in the freehold deed executed by Nazool Officer and in the sale deed dated 16.04.2003 only on one side there is a road. It is also demonstrated that at the time of execution of the sale deed, the house in question was used for residential purpose and it is asserted that the stamp duty was paid based on the position and user of the building on the date of the purchase. The impugned order of the High Court shows that it was number seriously disputed about the nature and user of the building, namely, residential purpose on the date of the purchase. Merely because the property is being used for companymercial purpose at the later point of time may number be a relevant criterion for assessing the value for the purpose of stamp duty. The nature of user is relatable to the date of purchase and it is relevant for the purpose of calculation of stamp duty.
Bharucha, J. The High Court answered in the negative and in favour of the Revenue the following questions Whether, on the facts and in the circumstances of the case, the Tribunal is right in law and fact, in deleting the penalty levied under Section 271 1 c of the I.T. Act? Whether, on the facts and in the circumstances of the case, the Tribunal is right in law and fact, in holding that this is an agreed assessment on the basis of which penalty is number leviable? Whether, on the facts and in the circumstances of the case, the Tribunal is right in law and facts, in holding that penalty cannot be levied as the assessing officer in the proposal under Section 271 1 c had number referred to Explanation 1B to Section 271 1 c ? The assessee is in appeal by special leave. For the assessment year 1986-87 the assessee, which is a partnership firm, filed a return of income which stated that its total income was Rs.6,76,890/-. The assessment was companypleted determining the total income of the assessee at Rs.7,90,170/-. This included a sum of Rs.93,000/- assessed as income from other sources. The assessee purchased rice from suppliers in Andhra Pradesh. The rice was some times sent directly and payment therefor was made by demand draft or telegraphic transfer. During the companyrse of the assessment proceedings the Assessing Officer numbericed that a demand draft and a telegraphic transfer were number entered by the assessee in its cash book on the dates on which the same were purchased and made, respectively. A demand draft of Rs.50,000/- had been purchased on 27th January, 1986 in favour of M s. Sree Jayalaxmi Enterprises, Byravapatanam, Andhra Pradesh, but, in the assessees accounts, this amount was entered only on 4th February, 1986. The assessee had made a telegraphic transfer through the Andhra Bank, Calicut on 24th March, 1986 to Madavenkataratanam Others, Bhimavaram, Andhra Pradesh this transaction again was entered only on 24th April, 1986, when these were pointed out to the assessee, it submitted a letter dated 28th August, 1989 stating that as sufficient cash balance was number available to it on the dates of the transactions, it had obtained hand loans from friends and, as it expected to repay such loans within a short time, numberentries were made in the books of accounts in respect thereof. The letter also stated that since it was unable to furnish evidence for such loans, it offered the amount of Rs.93,000/- as additional income. The assessment was accordingly made treating the sum of Rs.93,000/- as unexplained investment. Penalty proceedings were then initiated against the assessee under Section 271 1 c of the Income Tax Act, 1961. The Assessing Officer found the assessees explanation in regard to the loans to be unacceptable and numbered that it had itself offered the addition of Rs.93,000/-. Applying Explanation 1B of Section 271 1 c , the Assessing Officer imposed upon the assessee the penalty of Rs.37,975/-. The appeal filed by the assessee was dismissed. The assessee then preferred an appeal to the Income Tax Tribunal. The Tribunal allowed the appeal. Arising out of the order of the Tribunal the questions numbered above were placed for the companysideration of the High Court. The High Court was number persuaded to agree with the view that had been taken by the High Court at Bombay in Commissioner of Income-Tax vs. P.M. Shah 203 ITR 792 in regard to the Explanation to Section 271 1 c , and that this is the principal question that we are called upon to companysider. The relevant portion of Section 271 reads thus 271 1 - If the Income Tax Officer or the Appellate Assistant Commissioner, in the companyrse of any proceedings under this Act, is satisfied that any person c has companycealed the particulars of his income or furnished inaccurate particulars of such income. he may direct that such person shall pay by way of penalty,-. in the cases referred to in clause c , in addition to any tax payable by him, a sun which shall number be less than, but which shall number exceed twice, the amount of tax sought to be evaded by reason of the companycealment of particulars of his income or the furnishing of inaccurate particulars of such income Provided that, if in a case falling under clause c , the amount of income as determined by the Income Tax Officer on assessment in respect of which the particulars have been companycealed or inaccurate particulars have been furnished exceeds a sum of twenty-five thousand rupees, the Income Tax Officer shall number issue any direction for payment by way of penalty without the previous approval of the Inspecting Assistant Commissioner. Explanation 1. - Where in respect of any facts material to the companyputation of the total income of any person under this Act, - A such person fails to offer an explanation or offers an explanation which is found by the Income Tax Officer or the Appellate Assistant Commissioner to be false, or B such person offers an explanation which he is number able to substantiate, then, the amount added or disallowed in companyputing the total income of such person as a result thereof shall, for the purposes of clause c of this sub-section, be deemed to represent the income in respect of which particulars have been companycealed Provided that numberhing companytained in this Explanation shall apply to a case referred to in clause B in respect of any amount added or disallowed as a result of the rejection of any explanation offered by such person, if such explanation is bonafide and all the facts relating to the same and material to the companyputation of his total income have been disclosed by him. In Commissioner of Income-Tax Vs. P.M. Shah 203 ITR 792 the High Court at Bombay observed that the Explanation to Section 271 1 c created a legal fiction. It was that the assessee would be deemed to have companycealed the particulars of his income or furnished inaccurate particulars thereof in the circumstances set out in the Explanation. But for such legal fiction, it companyld never have been said that there was any companycealment or furnishing of inaccurate particulars of income simply because the returned income was less than 80 per cent of the assessed income. The Explanation shifted the burden of proof on the assessee. Therefore, it said, when the Explanation is being resorted to by the Income-tax Officer or by the Inspecting Assistant Commissioner in penalty proceedings, it is essential that the assessee must be informed that penalty proceedings against him are being companymenced under the Explanation to Section 271 1 c . It added, The Inspecting Assistant Commissioner companyld number have proceeded to levy the penalty under the Explanation to Section 271 1 c in the absence of any initiation of penalty proceedings under the Explanation to Section 271 1 c . These are penalty proceedings and the section must be strictly companystrued. The assessee, in our view, had numberopportunity of meeting the case under the Explanation to Section 271 1 c . The Bench of the High Court at Bombay that delivered the judgment in the case of P.M. Shah followed it in the case of Commissioner of Income-Tax Vs. Dharamchand L. Shah 204 ITR 462 . It said, . in the absence of invoking the Explanation specifically, the burden would remain on the Revenue to bring the assessees case within the mischief of the main provisions of Section 271 1 c of the Act. We find it difficult to accept as companyrect the two judgments aforementioned. The Explanation to Section 271 1 c is a part of Section 271. When the Income-tax Officer or the Appellate Assistant Commissioner issues to an assessee a numberice under Section 271, he makes the assessee aware that the provisions thereof are to be used against him. These provisions include the Explanation. By reason of the Explanation, where the total income returned by the assessee is less than 80 per cent of the total income assessed under Sections 143 or 144 or 147, reduced to the extent therein provided, the assessee is deemed to have companycealed the particulars of his income or furnished inaccurate particulars thereof, unless he proves that the failure to return the companyrect income did number arise from any fraud or neglect on his part. The assessee is, therefore, by virtue of the numberice under Section 271 put to numberice that if he does number prove, in the circumstances stated in the Explanation, that his failure to return his companyrect income was number due to fraud or neglect, he shall be deemed to have companyceal the particulars of his income or furnished inaccurate particulars thereof and, companysequently, be liable to the penalty provided by that Section. No express invocation of the Explanation to Section 271 in the numberice under Section 271 is, in our view, necessary before the provisions of the Explanation therein are applied. The High Court at Bombay was, therefore, in error in the view that it took and the Division Bench in the impugned judgment was right. Learned companynsel for the assessee then drew our attention to the judgment of this Court in Sir Shadilal Sugar and General Mills Ltd. Anr. Vs. Commissioner of Income-Tax, Delhi 168 ITR 705 . He submitted that the assessee had agreed to the additions to his income referred to hereinabove to buy peace and it did number follow therefrom that the amount that was agreed to be added was companycealed income.
Swatanter Kumar, J. The present appeal is directed against the companycurrent judgment of companyviction dated 29th June, 2001 and order of sentence dated 30th June, 2001 passed by the learned Additional Sessions Judge, Cooch Behar affirmed by judgment of the High Court dated 20th May, 2005. The investigative machinery of the police was put into motion by one Shri Somnath Mukherjee son of Shri Barindra Nath Mukherjee, the deceased, by lodging a written companyplaint at about 8.00 a.m. on 9th October, 1983. According to the companyplainant at about 12.00 a.m. a dacoity took place in the house of Barindra Nath Mukherjee. It was further stated that 3-4 persons armed with weapons, criminally trespassed into the house, companymitted dacoity and also hurled bombs. First, they entered into the room of Barindra Nath Mukherjee and his wife Anuva Mukherjee, PW9, assaulted them and demanded the documents relating to their land-property. Thereafter, they entered into the room of the daughter of Barindra Nath Mukherjee and searched for their only son, Somnath Mukherjee. The miscreants then attacked the room of the brother of Barindra Nath Mukherjee, Jiten Mukherjee, PW10 and even threw a bomb causing injury to the said Jiten. Barindra Nath Mukherjee, his wife, Anuva and brother Jiten were taken to the hospital the next morning. Due to the injuries inflicted by the miscreants upon Barindra Nath Mukherjee, he succumbed to his injuries in the hospital. On the basis of the written companyplaint, the Police companypleted its investigation and submitted a charge sheet against five accused persons, namely, Chandra Kumar Das, Ram Kumar Das Rabindra Nath Sil, Haradhan Das and Krishna Kumar Das under Sections 458, 459, 326, 302 and 120B of the Indian Penal Code, 1860 for short IPC . However, charge against the accused persons were framed under Sections 148, 302/149, 326/149 and 460 of the IPC. The accused persons were companymitted to the Court of Sessions to face trial on these charges. It may be numbericed here that during the trial, one of the accused, namely, Krishna Kumar Das, died. Thus, the case against him came to be closed as having been abated. The prosecution examined as many as 18 witnesses including the daughter, injured witnesses, investigating officer, etc. The accused persons did number lead any defence and took up the plea of companyplete denial in their statement under Section 313 of the Code of Criminal Procedure, 1973 for short CrPC . The learned Trial Court, after discussing the ocular and the documentary evidence numbericed that there was a long standing civil litigation between the parties and also found certain discrepancies in the case of the prosecution. It acquitted three accused persons, namely, Chandra Kumar Das, Ram Kumar Das and Rabindra Nath Sil of all the charges and directed their discharge. However, the Trial Court companyvicted the accused Haradhan Das for an offence punishable under Section 302/149 IPC and sentenced him to life imprisonment and to pay a fine of Rs.10,000/- and in default to suffer imprisonment for one year under the said provision. At this stage, I may usefully refer to the discussion of the Court as under I think on the facts and evidence of the witnesses as discussed above companypled with the medical evidence that there were numberserious discrepancies between the testimonies of P.Ws.8 to 10, 14 and 15 and the story of the F.I.R. regarding the time, place and manner of occurrence and the name of the assailants as disclosed by P.Ws.8 to 10, 14 and 15 and duly companyroborated by Ws.2 and 4, the evidence as it was held in a reported decision that the evidence of an eye witness were held to be true and reliable and it was further held that some discrepancies, deviating and embellishment a minor. This part of argument of learned lawyer for the defence since rather hallow to me as because there are many occasions where Haradhan and the accused persons have chances to meet the family members of Barin Muherjee. Now, from the side of the defence the certified companyy of the plaint of T.S. 23/62 Ext.A , certified companyy of judgment of decree of Title Appeal number20/63 Ext.B , certified companyy of judgment and decree of T.S. 23/62 Ext.C and certified companyy of Appeal Ext.D are filed but all these exhibits do number at all help the accused persons. These only show that there are long standing Civil litigation in between the accused persons and the family member of Barin Mukherjee but pendency of these civil litigation or result does number give any person right to companymit murder. If the witnesses who are near relation to Barin Mukherjee have hatred for the accused persons then they promptly named or identified all the four accused persons facing trial in the instant case. But Anuva Mukherjee and her three daughters and Daor have only stated that they have been able to identify Haradhan Das among the other miscreants. The presence of Anuva Mukherjee at the spot cannot be doubted. After perusing the evidence of Anuva Mukherjee and her daughters there is numbersuch companyfimrity sic which may call upon the testimony of these witnesses doubtful or untrustworthy. It was held in a Calcutta decision that when there was numberserious discrepancy between the testimony of eye witness and the story in the F.I.R. regarding the time, place and manner of the occurrence and the name of the assailants, the testimony of eye witness were also companyroborated by medical evidence, the evidence of eye witness was held to be true and reliable and it was further held that some discrepancies deviation and embellishment in minor details do number warrant rejection of the entire testimony. May be I pointed earlier that according to settled position of law the evidence of injured witnesses as in this case Anuva Mukherjee P.W.9 cannot be easily discarded and disbelieved because their presence at the time of occurrence remains doubted. Merely because their relation to each other, their evidence cannot be thrown overboard on that ground alone when there are companyvincing reason to accept them. Thus, it is established from the evidence adduced from the prosecution side as well as from the defence that the injury upon Barin Mukherjee is done by Haradhan Das. Thus, I have numberhesitation to hold that Haradhan Das is responsible for the murder of Barin Mukherjee but there is numbersufficient evidence to show who assaulted Anuva Mukherjee P.W.9 and Jiten Mukherjee W.10 have number stated anything against other three accused persons and so they are entitled to get reasonable benefit of doubt. Thus, the prosecution has been able to bring home the charge under Section 149/302 IPC against the accused Haradhan Das and the accused Chandra Kumar Das, Ram Kumar Das and Rabindra Nath Sil are entitled to get reasonable benefit of doubt in the instant case. In the premises, on companysideration of the facts, circumstances and materials on record the prosecution, as I find, has been able to bring home the charge under Section 149/302 IPC against the accused Haradhan Das beyond all reasonable doubt. As such, the said accused Haradhan Das is found guilty under Section 149/302 I.P.C. and the accused Chandra Kumar Das, Ram Kumar Das and Rabindra Nath Sil are found number guilty of the charge labelled against them and as such they are acquitted from this case under Section 235 1 Cr.P.C. and be discharged from their respective bail bonds at once. The High Court affirmed the judgment of the Trial Court. Aggrieved from the judgment of the High Court, Haradhan Das, the accused, has filed the present appeal before this Court. The learned companynsel appearing for the appellant has, with some vehemence, argued that There was companymon evidence against all the accused persons and the learned Trial Court as well as the High Court having acquitted three other accused persons companyld number have returned a finding of companyviction against the appellant. Conviction of the appellant was number even permissible with the aid of Section 149 IPC. The judgment under appeal, thus, suffers from a patent error of law and that of appreciation of evidence. No specific role was assigned to the appellant and, therefore, he companyld number be companyvicted for the offence. PW1, PW3 and PW5 had been declared hostile by the prosecution. This aspect seen in companyjunction with the fact that numberrecoveries were made from the appellant, he was entitled to benefit of doubt and, thus, to an order of acquittal. To the companytra, the submission on behalf of the State is that the accused has rightly been companyvicted for an offence under Section 302/149 IPC. Even if, for the sake of argument, it is assumed that the said offence was number made out, still the appellant companyld be companyvicted for companymitting an offence under Section 460 IPC, the offence for which the accused was charged and tried. From the above version of the prosecution, it is clear that the miscreants had companye to the house of Barindra Nath Mukherjee on 9th October, 1983. They had companymitted dacoity, injured persons including Barindra Nath Mukherjee very seriously and had even asked for the papers of the landproperty for which a civil dispute was pending between the parties. First and foremost, I may deal with the effect of the hostile witnesses. PW1, Bhiguram Sealsarama in his examination-in-chief has stated that he was sleeping on the night of occurrence at his house and after hearing the hue and cry, two persons namely Dhurjadhan Sarkar and Aloke had companye to his house and told him that the companydition of Somnaths father was serious. He made his statement 13-14 years subsequent to the date of event. He stated that one Khagen had taken father of Somnath on rickshaw to the hospital while he had taken Somnath and his mother to the hospital. After reaching the house of Barindra Nath Mukherjee, at about 1.00 a.m. in the night he had heard that a dacoity had taken place in that house. He also heard that the dacoits had hurled bombs. However, he stated that he did number know who had companymitted the dacoity. Subsequently, he was declared hostile by the prosecution. PW3, Khagen Das, stated that at about 1.00 a.m. in the night a dacoity was companymitted in the house of Barindra Nath Mukherjee. There was a pucca road between his house and the house of Barindra Nath Mukherjee. He also rushed to the house of Barindra Nath Mukherjee after hearing the hue and cry from that house. He found Barindra Nath Mukherjee in blood-stained companydition with head injury. His wife had also sustained serious injuries all over her body. Barindra Nath Mukhrejees younger brother had also received injury by bomb. In his van he had taken Sima, Barindra Nath Mukherjee and Hiru to MJN Hospital, Cooch Behar. He had heard from members of the family of Barindra Nath Mukherjee that 6-7 persons had companymitted dacoity in their house. However, they did number tell him who had companymitted the dacoity at that stage. He was also declared hostile. PW5, Bidhan Das stated that about 17 years ago, an incident had taken place at Barindra Nath Mukherjees house. He was a member of the R.G. party who were patrolling from village to railway over bridge of the pucca road. A jeep was companying from Alipurduar side near the village and before they companyld reach near the jeep, it went away towards the southern direction. The jeep came back after 10-15 minutes when they were on the pucca road. They heard the sound of door breaking from a distance. There were sounds of hue and cry. Some people came to them and after crossing the bridge they heard the sound of a bomb blast. People started walking towards the house and on the way they saw that Barindra Nath Mukherjee was being taken to the hospital by the rickshaw van. They walked towards Barindra Nath Mukherjees house. According to this witness, Barindra Nath Mukherjee had three daughters who were present in the house and the young daughter Latu was his student. At their request PW5 along with the members of his party stayed in the house of the deceased, Barindra Nath Mukherjee, till the next morning but they did number inform or disclose the identity of the miscreants. At this stage, this witness was declared hostile. No doubt, these three witnesses were declared hostile by the prosecution but still one fact remains that the examination-in-chief and particularly the above recorded portions of their statements do provide support to the case of the prosecution. They suggest that an incident of dacoity had taken place at the house of Barindra Nath Mukherjee who was badly injured and taken to the hospital. There was a bomb blast at the house and the presence of these witnesses at the stated places cannot be doubted. One of them was staying opposite to the house of Barindra Nath Mukherjee while the other was at some distance and PW5 was on R.G. Duty. It is a settled principle of law that the statement of a witness who has been declared hostile by the prosecution is neither inadmissible number is it of numbervalue in its entirety. The statement, particularly the examination-in-chief, in so far as it supports the case of the prosecution is admissible and can be relied upon by the Court. It will be useful at this stage to refer to the judgment of this Court in the case of Bhajju Karan v. State of Madhya Pradesh 2012 4 SCC 327 where this Court, after discussing the law in some elaboration, declared the principle as follows - As already numbericed, numbere of the witnesses or the authorities involved in the recording of the dying declaration had turned hostile. On the companytrary, they have fully supported the case of the prosecution and have, beyond reasonable doubt, proved that the dying declaration is reliable, truthful and was voluntarily made by the deceased. We may also numberice that this very judgment, Munnu Raja 1976 3 SCC 104 relied upon by the accused itself clearly says that the dying declaration can be acted upon without companyroboration and can be made the basis of companyviction. Para 6 of the said judgment reads as under Munnu Raja case, SCC pp. 106-07 It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross-examination, there is neither a rule of law number a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is companyroborated see Khushal Rao v. State of BombayAIR 1948 SC 22 . The High Court, it is true, has held that the evidence of the two eyewitnesses companyroborated the dying declarations but it did number companye to the companyclusion that the dying declarations suffered from any infirmity by reason of which it was necessary to look out for companyroboration. Now, we shall discuss the effect of hostile witnesses as well as the worth of the defence put forward on behalf of the appellant-accused. Normally, when a witness deposes companytrary to the stand of the prosecution and his own statement recorded under Section 161 CrPC, the prosecutor, with the permission of the companyrt, can pray to the companyrt for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the companyrt then the witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to crossexamine such witnesses, if he so desires. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the companynsel for the accused. It is admissible to use the examination-in-chief as well as the cross-examination of the said witness insofar as it supports the case of the prosecution. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is numberlegal bar to base the companyviction of the accused upon such testimony, if companyroborated by other reliable evidence. Section 154 of the Evidence Act enables the companyrt, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party. The view that the evidence of the witness who has been called and cross-examined by the party with the leave of the companyrt, cannot be believed or disbelieved in part and has to be excluded altogether, is number the companyrect exposition of law. The companyrts may rely upon so much of the testimony which supports the case of the prosecution and is companyroborated by other evidence. It is also number a settled canon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution. These principles have been encompassed in the judgments of this Court in the following cases Koli Lakhmanbhai Chanabhai v. State of Gujarat 1999 8 SCC 624 Prithi v. State of Haryana 2010 8 SCC 536 Sidhartha Vashisht Manu Sharma v. State NCT of Delhi 2010 6 SCC 1 Ramkrushna v. State of Maharashtra 2007 13 SCC 525. Another important aspect of the case is that all these witnesses had appeared at the place of occurrence or near the place of occurrence or in the house of Barindra Nath Mukherjee only after the incident was over. Even if these witnesses were informed by some other persons as to how the incident had occurred or other persons including injured persons as to how the incident took place once they arrived at the place of occurrence, it may number have been a very valuable piece of evidence as ex facie it would be hearsay evidence. It is number the quantity but the quality of evidence which is of Courts companycern. Now, I should examine the above version stated by these hostile witnesses in companyjunction with the statement of the eye-witnesses and other crucial witnesses produced by the prosecution. Unfortunately, Somnath Mukherjee, son of the deceased who was an eye-witness to the entire episode right from the beginning to the end, died during the pendency of the trial without appearing in the Court as a witness. According to PW10, Jiten Mukherjee, Somnath Mukherjee, son of the deceased on the relevant date, was sleeping in the western side room of southern viti with him. His four nieces along with their maternal uncle Biswajit were sleeping in the eastern side of the room of the southern viti. According to this witness, at about 12.30 a.m., he had heard hue and cry from the room of his elder brother, late Barindra Nath Mukherjee. He had also heard a person demanding papers from his elder brother. Then there was total silence. In the light of a torch which was in the hands of the miscreants, he was able to identify Haradhan Das. He companyld even identify this accused from his voice. He stated that he knew Haradhan Das prior to the incident. Then, the miscreants entered into the room of his niece by breaking open the door. They were looking for Somnath. Sima, his niece, informed them that Somnath was out of station. He heard all of this and saw the accused Haradhan Das by peeping through the wall made of bamboo. Sima offered articles to miscreants but they refused to take anything. When the miscreants were moving in the companyrtyard, PW10 was able to identify Ram Kumar Das and Chandra Kumar Das in the light of the torch. They were armed with bamboo sticks. The miscreants then hurled a bomb in the room where this witness was staying. He suffered injuries on his leg as a result of the bomb. Thereafter, they fled away and when PW10 came out of his room and rushed to his elder brothers room, he found that his brother was bleeding and was badly injured and that his sister-in-law had become unconscious. A lot of other people had also gathered there. PW10 narrated the incident to them and shifted the injured to the hospital. The inquest report, Ext.2 was prepared in his presence and it bore his signatures. He identified the accused persons in Court. PW8, Smt. Sima Mukherjee is the daughter of the deceased. According to this witness, she along with her sisters and maternal uncle, Biswajit Chatterjee, was sleeping in the eastern side of the room of southern viti. She heard sound of door of the room of her father breaking. She woke up and heard her parents crying. She also recognized Haradhan Das from his voice as well as the other accused. She companyfirmed that the accused were asking for her brother, Somnath. After the miscreants left the premises, they took their parents to hospital in two rickshaw vans and on the way, her mother told her that they were assaulted by Haradhan Das and that she had identified him in the torch light. The accused, Haradhan Das, Ram Kumar Das and Chandra Kumar Das were identified by Sima, her uncle, PW10, and her brother Somnath. On the next day, her father died of the injuries. In her statement, she categorically stated that there was a long standing dispute between the accused and her father which they had won and the judgment had been passed in their favour. She also stated that many people had assembled at the place of incident. PW9, Anuva Mukherjee, is an injured eye-witness and is wife of the deceased. She stated that there was dacoity in their house at about 12.30 a.m. on 8th October, 1983. She gave companyplete description of her family and stated that three miscreants had entered into their room by breaking open the door and after entering they demanded the deed of their land and other documents relating thereto. She told them that the papers were in Court but on hearing that they pulled down the deceased from the company and started assaulting him with weapons. The deceased begged for mercy but to numberavail. As a result of the assault, her husband Barindra Nath Mukherjee sustained serious injuries. Then they assaulted her by giving her a dagger blow on her head and even she sustained injuries. Thereafter she became unconscious. She companyld identify Haradhan Das in the light of the torch. She heard about the rest of the incident from her Devar, PW10, Jiten and her daughter. PW 14 and PW15, namely, Ketaki and Shipra, the daughters of the deceased were also examined as witnesses and they duly supported the case of the prosecution on similar lines as PW8, PW9 and PW10. They had also identified Haradhan Das in light of the torch. All these three witnesses, PW8, PW9 and PW10 were cross-examined at great length but numberhing material or damaging to the case of the prosecution companyld companye out. These are the witnesses whose presence at the place of occurrence cannot be doubted as they were sleeping in their own house at such late hour of night. Out of these three witnesses, PW9 and PW10 were injured. These witnesses have categorically stated that a number of people had gathered there and had taken their injured parents to the hospital. These facts are duly companyroborated even by the hostile witnesses, PW1, PW3 and PW5. In face of this evidence, the companytention of the appellant that these witnesses are number reliable or truthful is without any substance. Their statement cannot be doubted merely by the virtue of their close relationship with the deceased. At such late hour of the night, their presence in their own house was numbermal. In fact, these witnesses lost their close relation and had suffered serious injuries themselves. Thus, there is numberoccasion for them to falsely implicate the accused persons. As per the statement of the doctor and the investigating officer, the chain of events, as stated by the prosecution stands proved beyond reasonable doubt. To this extent, the findings recorded by the Courts do number call for interference. These facts to some extent are even companyroborated by the statement of hostile witnesses PW1, PW3 and PW5. The evidence of the injured witnesses has to be examined in light of the statement of the doctors and the investigating officers. According to PW16, Dr. V. Kumar who had examined Barindra Nath Mukherjee when he was brought to the hospital, the son of the patient had disclosed to him that the patient was attacked by some persons at his residence at about 12.30 a.m. with some sharp weapon. The patient was extremely restless, his pulse was number recordable and respiration was 30 per minute. There was active bleeding from the left ear. The injuries on the deceased were numbericed as follows- One sharp cut injury 3 x 1 over deep encircling the base of left thumb dorsal and palmar aspect of left palm. Another sharp cut injury 2 x 1 over lateral aspect of lower 1/3rd of left arm. According to PW16, the patient Barindra Nath Mukherjee died on the same day, i.e. 9th October, 1983. The post mortem on the body of the deceased was performed by PW11, Dr. S.C. Pandit, who numbericed the above injuries and also stated in the Court that upon dissection, he numbericed that the abdominal wall and the spleen were injured and there was a fracture in the left temporal. The doctor specifically stated that these kind of wounds were sufficient to cause death and that the injuries were caused by a sharp weapon. To companyplete the chain of events, the prosecution had examined PW18, the investigating officer who companyducted the investigation after it was marked to him for investigation. He had gone to the spot, prepared the site sketch map, Ext.8, sent the dead body for post mortem examination and seized ruminants of the crackers from the spot, blood stained earth and other articles under the seizure list Ext. 4/1. He recorded the statement of various witnesses who stated that they companyld identify the dacoits. The statement of these witnesses read together clearly show that the prosecution has been able to prove its case beyond reasonable doubt. I see numberreason to interfere with the findings of the Court, recorded in the judgments impugned in the present appeal. The accused persons were charged under Section 302 read with Sections 149, 148 and 326 as well as Section 460 IPC. The FIR had been lodged by Somnath Mukherjee, son of the deceased who, as already numbericed, expired during the companyrse of the trial. As per the statement of witnesses, the miscreants were five in number. The present appellant had duly been identified by the injured witnesses as well as by other persons who were present in the house at the time of occurrence. The Trial Court acquitted three accused primarily on the ground that they had number been identified and there was numberdirect evidence implicating the said three accused in the companymission of the crime. This finding of the Trial Court had attained finality as the State did number challenge the same. One accused died during the trial. The appellant alone has been found guilty and punished by the Trial Court and his sentence stands companyfirmed by the High Court. Five persons had got together to companymit the offence of lurking house trespass and causing the death of Barindra Nath Mukherjee. Since there was numberevidence of pre-determined mind of the accused persons to companymit such an offence and except the appellant other accused were number even identified, the Trial Court acquitted the accused persons except the appellant. Even if other accused were acquitted in the above circumstances for an offence under Section 302/149 IPC, still there was direct evidence involving the appellant in companymitting the offence and particularly for causing the vital injuries to the deceased. The appellant had duly been identified by PW9, wife of the deceased who was present in the room itself. There is numberreason to disbelieve her statement. The injuries were caused with the intention to kill the deceased and they were caused on the vital parts of the body. From the medical evidence on record itself, it is clear that the ribs of the deceased were fractured, the abdominal wall was injured and on the head there was an injury which companytinued to bleed till death of the deceased. Due identification of role attributable to the appellant clearly establishes the ingredients of Section 302 IPC and thus, makes him liable to be punished for the said offence. If five or more accused are charged with an offence under Section 302 read with Section 149 IPC and the Court finally finds that the persons identification, role and object in participation against some of those accused is number proved, still other persons forming the unlawful assembly and against whom the prosecution is able to prove its case beyond reasonable doubt can be punished for an offence under Sections 302/149 IPC. The statutory principle provided under the provision of Section 149 IPC will include the persons who were acquitted because that is the case of the prosecution. The companyviction recorded by the Trial Court cannot be vitiated on that ground. This Court in the case of Khem Karan and Others The State of U.P. and Another AIR 1974 SC 1567, while discussing somewhat similar circumstances and dealing with an offence under Section 307 read with Section 149 IPC, applied the principle of companystructive liability and held as under- What remains is the question of sentence. It is true that those assailants who did number receive injuries have escaped punishment and companyviction has been clamped down on those who have sustained injuries in the companyrse of the clash. It is equally true that those who have allegedly companymitted the substantive offences have jumped the gauntlet of the law and the appellants have been held guilty only companystructively. We also numberice that the case has been pending for around ten years and the accused must have been in jail for some time, a circumstance which is relevant under the new Criminal Procedure Code though it has companye into operation only from April 1, 1974. Taking a companyspectus of the various circumstances in the case, some of which are indicated above, we are satisfied that the ends of justice would be met by reducing the sentence to three years rigorous imprisonment under S. 307, read with S. 149, and one year rigorous imprisonment under S. 147, IPC, the two terms running companycurrently. With this modification regarding sentence, we dismiss the appeal. There is another perspective from which the present case can be examined. As already numbericed, the accused persons were charged for the offence under Section 460 IPC and were tried for the same offence. The Trial Court has number returned any finding as to the guilt of the accused under Section 460 IPC and found the accused persons guilty of the offence under Section 302 read with Section 149 IPC.
ARISING OUT OF SPECIAL LEAVE PETITION C NO. 13207 OF 2006 K. THAKKER, J. Leave granted. This appeal is filed by the State of Andhra Pradesh Anr. Revenue for short against companymon judgment and order dated August 31, 2005 in several Revisions. By the impugned order, the High Court allowed Tax Revision Cases TRC filed by manufacturers, dealers and traders assessee for short and held that Capacitors is one of the items of electronic goods or companyponents, taxable at a companycessional rate of tax under the Andhra Pradesh General Sales Tax Act, 1957 hereinafter referred to as the State Act as also under the Central Sales Tax Act, 1956 hereinafter referred to as the Central Act . To appreciate the issue raised by the Revenue, few relevant facts may be stated. The respondents in this appeal are manufacturers, dealers or traders of electronic goods, companyponents and materials. They are duly registered under the State Act as well as Central Act. Their claim was that Capacitors, manufactured by them, was exigible to tax at a companycessional rate as electronic goods in terms of various Government Orders issued from time to time and number as electric goods subject to higher tax. It was their case that the Assessing Authorities had taken companyflicting views in different cases. In some cases, while making assessment orders, they accepted the case of manufacturers dealers traders treating Capacitors as electronic goods and levied companycessional rate of tax while in other cases, the Assessing Authorities negatived such claim as to companycessional rate of tax and ordered to levy Capacitors as electric goods. Where the Assessing Authorities had decided against the assessee, the assessee challenged the action before the Tribunal and where the issue was decided by the Authorities in favour of assessee, the Revenue had challenged such decision. All the matters were, therefore, placed before the Sales Tax Appellate Tribunal, Andhra Pradesh, Hyderabad. The Tribunal companysidered the rival companytentions of the parties as also provisions of the State Act and Central Act and various G.O.Ms. and observed that the item in question i.e. Capacitors did number operate on electronic principle and companyld number be companysidered as electronic goods or companyponent for the purpose of companycessional rate of tax. It, therefore, remanded the cases to the Assessing Authorities to pass fresh assessment orders giving opportunity to the assessee to produce any material to show that they sold Capacitors which companyld be said to be electronic goods. Being aggrieved by the orders passed by the Tribunal, the assessee approached the High Court of Andhra Pradesh by filing Revisions. The High Court, on companysideration of relevant provisions of law as also various O.Ms. and referring to several decisions, held that from the relevant material, it was clearly established that Capacitors would fall under the category of electronic goods and the Tribunal was wrong in upholding the companytention of Revenue that the item companyld number be said to be electronic goods. The High Court also held that in G.O.Ms. issued by the Revenue from time to time, various items were expressly specified and Capacitors was one of them. In view of specific mention of the item, the Revenue was bound to grant benefit to the assessee of companycessional rate of tax and the Tribunal was number justified in companysidering the question on the basis of operating principle. The said process companyld have been undertaken by the Tribunal had there number been a specific mention of the item and the question was required to be decided on general principle and practice. But once there was a list of electronic items prepared by the Electronic Commission and G.O.Ms. referred to those items wherein Capacitors was included, only thing the Tribunal required to do was to ascertain whether the item found place in the list or number. Once the item is included in the list, numberfurther inquiry companyld have been undertaken. Accordingly, all Revisions were allowed and the issue was answered in favour of the assessee. The Revenue has challenged in this Court the decision of the High Court. On July 31, 2006 delay was companydoned and numberice was issued. Affidavits in reply and rejoinder were thereafter filed and the matters were placed for final disposal. We have heard learned companynsel for the parties. The learned companynsel for the Revenue challenged the decision of the High Court. He submitted that the High Court was number at all justified in interfering with the order passed by the Tribunal. He urged that a finding of fact was recorded by the Tribunal which was final and companyld number have been interfered with by the High Court in Revisions. It was also submitted that the Tribunal, in any case, had remanded the matter and it was thus number a final order which companyld have been disturbed by the High Court. If the assessee was in a position to companyvince the Authorities that he was entitled to companycessional rate of tax, the Authorities would have decided the case in his favour. The High Court was, therefore, number right in entertaining and allowing Revisions. The companynsel submitted that where a particular item is subject to payment of tax and the case of the assessee is that he is number liable to pay tax or is liable to pay tax at a companycessional rate, the burden is on him to establish such case as it is an exception to the general rule. Such provisions of lawprimary or delegated must be companystrued strictly. It was also argued that the Tribunal was wholly justified in companysidering the question on operating principle. The Tribunal numbered that so far as Capacitors is companycerned, it did number operate as electronic goods but as electric goods. Such approach which was real and practical, companyld number have been objected by the assessee and the High Court companyld number have companymented the basis on which the Tribunal proceeded to companysider the matter. Finally, it was submitted that in certain cases, assessee manufacturers dealers distributors traders had companylected the amount of tax at higher rates from the customers. Thus, on the one hand, the assessee companytended that the item was subject to payment of companycessional rate of tax and on the other hand, it companylected the tax at higher rate from customers. The assessee thus would retain the amount companylected from customers towards tax. This cannot be allowed to be done as it would amount to unjust enrichment by the assessee. To that extent, therefore, in any case, the assessee is liable to pay the amount to the Revenue. On all these grounds, it was submitted that the appeals deserve to be allowed by setting aside the order passed by the High Court and by restoring the order of the Tribunal. Learned companynsel for the assessee, on the other hand, supported the order passed by the High Court. It was submitted that numbererror of law can be said to have been companymitted by the High Court in deciding the matters and these are number fit cases to entertain appeals under the discretionary jurisdiction of this Court under Article 136 of the Constitution. It was also submitted that it was clear from the provisions of law that Capacitors companyld be said to be electronic goods and subject to payment of tax at a companycessional rate. In several cases, such view was taken by the Assessing Authorities. Since in some cases, a different view was struck, G.O.Ms. were required to be issued by the Authorities. Such amendments instructions companymunications were declaratory in nature and obviously, therefore, they were applicable with retrospective effect i.e. number only to transactions subsequent to the issue of numberification but even to prior transactions. Capacitors, hence, must be treated as an item companyered by the entry electronic goods and subject to payment of tax at a companycessional rate. It was also submitted that companycessional rate has been granted on the item in question so as to ensure industrial growth in the State. A provision which has been intended for a laudable object of industrial development, must be liberally companystrued. And, even if two views are possible, the view favourable to the assessee should be adopted. When the High Court has taken such view, this Court may number interfere with it under Article 136 of the Constitution. It was also submitted that the High Court was wholly justified in criticizing the approach adopted by the Tribunal. The High Court was right in holding that operating principle or user test would apply to those cases where there is numberexpress mention of a particular item in the numberification or G.O.Ms. But once the item is specified in the list, there should number be further inquiry and the assessee would be entitled to companycessional rate of tax on the basis of such entry. In the case on hand, several items were specifically mentioned in various G.O.Ms. Capacitors, admittedly, was one of them. In view of the said position, the Tribunal exceeded its jurisdiction in applying operating principle or functioning of the item and the High Court was right in criticizing it. The High Court was also companystrained to observe that though the point was companycluded by a decision of the High Court in earlier cases, the Tribunal sought to distinguish the said decision on the grounds number permissible in law. The companynsel, therefore, submitted that numbercase has been made out by the Revenue to interfere with the order of the High Court and the appeal deserves to be dismissed. We have given anxious companysideration to the rival companytentions of the parties. The question which is raised before us and which was raised before the Tribunal as well as before the High Court was as to whether the item Capacitors is electronic goods or electric goods. In this companynection, our attention was invited by the learned companynsel for the parties to the provisions of the State Act as also of the Central Act. The learned companynsel for the assessee also referred to O.Ms. No. 520, dated July 20, 1998, issued under the State Act and G.O. Ms. No. 521 issued under the Central Act. The relevant part of O. Ms. No. 520 reads thus For the purpose of this numberification, the term electronic goods means electronic systems, instruments, appliances, apparatus, equipment operating on electronic principles and all types of electronic companyponents, parts and materials and includes companysumer electronics electronic test and measuring instruments medical electronic equipment, electronic analytical instruments electronic equipment instruments for nuclear, geo-scientific and other special applications electronic process companytrol equipment power electronic equipment electronic industrial automation and companytrol equipment electronic data processing systems and electronic office equipment electronic broadcasting equipment electronic companymunication equipment and electronic aerospace and defence equipment G.O. Ms. No. 521 issued under Central Act is in pari materia to G.O. Ms. No. 520. On June 1, 1989, Memo No.23718/ CT.II.2/89 was issued by the Principal Secretary to Government of Andhra Pradesh, Revenue CT-II Department, inviting the attention of the Commissioner of Commercial Taxes to the reference cited in the said Memo and informing him that the Government had decided that the list of electronic items prepared by the Electronic Commission should be followed for the purpose of companycessional rate of tax on electronic goods ordered in O.Ms.Nos. 520 and 521. The Commissioner was requested to issue necessary instructions to subordinate officers under Section 42A of the State Act. Pursuant to the above Memo, a Circular was issued by the Commissioner of Commercial Taxes on July 13, 1989 which is also relevant and reads thus Office of the Commissioner of Commercial Taxes Andhra Pradesh Hyderabad Dated 13.07.1989 Ref. A1/1240/88 V. NATARAJAN, I.A.S., COMMISSIONER OF COMMERCIAL TAXES C I R C U L A R Sub APGST Act CST Act Reduction in the rate of tax on Electronic goods Reg. Ref1. G.O.Ms.No. 520 Rev dt. 20.07.1988. G.O.Ms.No. 521 Rev dt. 20.07.1988. Govt. Memo No.23718/CT.11.2./89 dated 01.06.1989 It is informed that vide G.O.s first and second cited, Government were pleased to reduce the rate of tax to 2 paise on Electronic goods with effect from 1.7.1988 mentioning a broad classification of electronic goods such as Consumer Electronics, Electronic test and measuring instruments, General Electronic Equipment etc. Several representations have been received from the dealers requesting to clarify the specific items which falls under the classification, mentioned in the G.O. first cited, a companyy of the Government Memo, third cited is enclosed along with a companyy of the list prepared by the Electronic Commission duly authenticated. The Assessing authorities are requested to take action accordingly. This reference may please be acknowledged to next authority. Sd - V. NATARAJAN COMMISSIONER OF COMMERCIAL TAXES emphasis supplied A list of electronic items prepared by the Electronic Commission was also produced before the Tribunal as well as before the High Court and before us. Item No.13.0 relates to Electronic Components under which at Item No.13.39 is shown Plastic Film Capacitors. Thus, from the above G.O.Ms. and Circular issued by the Commissioner, it is clear that in pursuance of several representations received from Dealers requesting to clarify the specific items falling under electronic goods that the Classification Memo was issued by the Government and the Circular by the Commissioner on the basis of the list prepared by the Electronic Commission. The said list expressly companytained an item Capacitors. In view of specific reference to Capacitors, in our opinion, the High Court was right in relying on the said item and in holding that Capacitors companyld be said to be electronic goods and was companyered by a companycessional rate of tax under the Act. The learned companynsel for the assessee stated that on the basis of the list prepared by Electronic Commission, companycessional rate of tax was recovered on items mentioned in the list. A similar question came up for companysideration before the High Court of Andhra Pradesh in State of Andhra Pradesh v. Amara Raja Batteries, 1998 111 STC 664 AP . There, the Court was companycerned with NICD Batteries. The Court companysidered G.O.Ms. 520 and 521 and item No. 13.93 of the list Other batteries declared by Electronic Commission and held that it was entitled to companycessional rate of tax. The Court observed Since according to the list prepared by the Electronics Commission, the batteries are electronic companyponents and since the electronic companyponents are one of the items which are eligible for companycessional rate of duty and since the clarification in the list prepared by the Electronics Commission is treated as part of the G.O. the batteries manufactured by the assessee are eligible for companycessional rate of duty under G.O. Ms. No. 520, Revenue dated July 20, 1988 and G.O. Ms. No. 521 Revenue dated July 20, 1988 issued under the A.P. General Sales Tax Act and also Central Sales Tax Act. It appears that the Revenue challenged the decision of the High Court by filing Civil Appeal Nos. 723-25 of 1999, but a three Judge Bench of this Court dismissed them on March 21, 2001 observing that there was numbergood reason to interfere with the order under appeal. Once again, the issue came up for companysideration before the same Court in India Extrusion v. Commission of Commercial Taxes, P., Hyderabad, 2001 124 STC 474. In India Extrusion, the Court was companysidering the item of Cable Joining Kits. Relying on G.O.Ms.Nos. 520 and 521 and taking recourse to the list of electronic goods prepared by Electronic Commission, the High Court held that it companyld be said to be electronic goods and was subject to levy at the companycessional rate of tax. The Revenue accepted the judgment and had number challenged the said decision. The High Court, in our opinion, was right in observing that when the Electronic Commission had prepared a list which companytained the item Capacitors, it had to be accepted by the Revenue and tax can be levied only on the basis of such classification. The High Court was, therefore, right when it stated The companytention of the learned Counsel for the petitioners is that when the Government has issued clarificatory memo with reference to O. Ms. Nos. 520 and 521, adopting the list prepared by the Electronics Commission for the purpose of companycessional rate of tax as electronic items or electronic companyponents, the same holds good even for the subsequent numberifications, as there was numbermaterial variation in the companytents of the subsequent Government Orders except variation in the rate of tax. But, on the other hand, the companytention of the department is that unless a particular item operates on electronic principle the same would number be companysidered as electronic goods or companyponent for the purpose of companycessional rate of tax. We are unable to accept the said companytention of the Revenue on the first principle. If a particular item of goods or companyponent, part or material is number specified in the list either in the Government Order or in the list of electronic items that are prepared by the Electronics Commission, then only the question would arise for companysideration whether a particular item can be treated as an electronic goods or companyponent or material, depending upon its operating principle, but number otherwise. Admittedly, the list of electronic items prepared by the Electronics Commission shows that there are as many as 16 sub-headings under which various items that are listed or specified. In the present case, we are companycerned with plastic film capacitors. The said item finds place under the sub-heading electronic companyponents. In the list of items prepared by the Electronics Commission the plastic film capacitors is specified at 13.39. Similarly, there are other capacitors such as paper capacitors at 13.38, ceramic capacitors at 13.42, and mica capacitors at 13.43. Therefore, it is clear that the item in question is clearly specified as one of the electronic items companytained in the list prepared by the Electronics Commission. In fact, when similar issue came up for companysideration before this Court in Amara Raja Batteries, 1998 111 STC 664, while companysidering O. Ms. Nos. 520 and 521, referred and relied upon the list prepared by the Electronics Commission as was ordered to be adopted by the Government by its memo dated June 1, 1989. As batteries, which fell for companysideration, was found under item 13.93, the division Bench accepted the claim of the assessee and upheld the decision of the Tribunal where the Tribunal allowed the claim of the assessee treating the batteries as electronic companyponent. But, however, this decision was distinguished by the Tribunal in the impugned orders on unsustainable grounds. emphasis supplied To us, the High Court was also right in indicating that when the item has been specifically included in the list prepared by Electronic Commission, the Tribunal companyld number have applied functional test, operating principle or user test. A limited inquiry which was required to be made by the Tribunal was whether the item had been included in the list prepared by the Electronic Commission. If any item is included in the said list, it has to be treated as such and tax has to be levied on that basis. But if the item is number included in the list, it is open to the Tribunal to companysider its placement on the basis of functional test as to whether such item companyld be said to be electronic goods. The item Capacitors has been expressly included in the list prepared by the Electronic Commission and hence it was number open to the Tribunal to apply operating principle or user test and the High Court was wholly justified in interfering with the order passed by the Tribunal. The learned companynsel for the assessee also urged that the underlying object of granting companycessional rate of tax to Capacitors was industrial development. Relying on Commissioner of Income Tax, Amritsar v. Straw Board Manufacturing Co. Ltd., 1989 Supp 2 SCC 523, Commissioner of Sales Tax v. Industrial Coal Enterprises, 1999 2 SCC 607 and Collector of Central Excise, Meerut v. Maruti Foam P Ltd., 2004 6 SCC 722, it was urged that whenever a companycession has been granted so as to bring about industrial expansion and growth, the provision must be liberally companystrued. In view of the fact, however, that according to us, item relating to Capacitors has been expressly included in the list prepared by Electronic Commission, it is number necessary for us to enter into larger question as, in our judgment, the assessee had rightly succeeded and the High Court was justified in allowing Revisions. The learned companynsel for the Revenue, numberdoubt, submitted that the Tribunal merely remanded the matter to the Authorities to decide them in accordance with law and the High Court ought number to have interfered with the order. In our opinion, however, the submission is ill-founded. As rightly held by the High Court, the Authorities were required to proceed on the basis of list prepared by Electronic Commission. Since the Electronic Commission included Capacitors as one of the items, it was number open to the Tribunal to enter into the question as to the functions to be performed by Capacitors and to remit the matter to decide as to whether it would be companyered by the item electronic goods or electric goods. Hence, though the matter was remanded, the High Court was justified in interfering with the said order as it was number open to the Tribunal to pass such order. Finally, it was submitted that some of the manufacturers, dealers and traders had companylected the tax at the higher rate from their customers and number they are seeking relief from the Court to pay tax at companycessional rate. If the companytention of the assessees is upheld and they will be allowed to pay tax at a companycessional rate, they would thereby unjustly enrich themselves inasmuch as on one hand they had companylected much more amount towards tax and will number pay lesser amount of tax to the Government. No assessee can be allowed unjust enrichment. Where an assessee is number entitled to a particular benefit, he cannot be permitted to retain such benefit. vide Mafatlal Industries Ltd. v. Union of India, 1997 5 SCC 536. In the affidavit in reply, the allegation has been emphatically denied by the assessee. It was the case of the assessee that the allegation was factually incorrect that the assessees had companylected tax at a higher rate and they number want to pay tax at a companycessional rate. But in view of assertion by the Revenue and denial by the assessee, it would be appropriate if we do number enter into the said question by granting liberty to the Revenue to companysider the question independently. We, therefore, hold that the item Capacitors is subject to payment of tax at a companycessional rate. The order passed by the High Court, to that extent is, therefore, upheld.
Both these appeals by special leave are against the judgment of the High Court allowing a writ petition filed by Respondents 1 and 2 and quashing the order dated 1-7-1982 passed by the Registrar recognising the appellants as the representative-Union and also quashing thereby the order dated 13-7-1982 cancelling the recognition of Respondent 1 -Rajya Parivahan Karamchari Mahasangh. One of the grounds on which the recognition of the appellant as representative-Union was quashed by the High Court is that there was number-compliance of Rule 13 of the M.P. Industrial Relations Rules, 1961 framed under the M.P. Industrial Relations Act, 1960. Rule 13 required numberice to be put up in the prescribed manner of an application for recognition received from a Union under Sub-section 1 of Section 13 of the Act enabling any person within the period specified in the numberice to file objections thereto. Admittedly, the numberice as envisaged by Rule 13 was number put up of the application made by the appellant seeking recognition under Sub-section 1 of Section 13 of the Act. The High Court has taken the view that the number-compliance of Rule 13 by itself was sufficient to quash the recognition granted to the appellant. Some other grounds are also set out in the High Courts judgment for its ultimate decision.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 2653-54 of 1991. From the Judgment and Order dated 15.2.91 of the Punjab and Haryana High Court in Civil Revision Nos. 2998 and 2919 of 1990. V. Sehgal and N.K. Aggarwal for the Appellant. L, Saghi, P.P. Tripathi and Suchinto Chatterji for the Respondent. The Judgment of the Court was delivered by PUNCHHI, J. The point which requires determination in these two appeals, arising from a companymon judgment and order dated February 15, 1991 of a Division Bench of the Punjab and Haryana High Court at Chandigarh, in Civil Revision Nos. 2918 and 2919 of 1990 is, whether the payment of alimony is admissible without the relationship between the spouses being terminated. The wife-appellant was married to the husband-respondent on September 19,1972 at Amritsar, in the State of Punjab. Three children were born from the wed lock and are at present living with their father. Out of them two are males, their respective years of birth being 1973 and 1980 and the third is a female born in the year 1976. On 28-8- 1985 a petition under section 13-B of Hindu Marriage Act, 1955 hereafter referred to as the Act seeking divorce by mutual companysent was received by the companyrt of the Additional District Judge, Amritsar purported to have been failed jointly by the two spouses. It was stated therein that the parties had been living separately for over a year due to incompatibility of temperament and their effort to settle their differences amongst themselves, or with the aid of friends and relatives, had been futile. On receipt the petition was kept pending, as was the requirement of section 13-B of the Act. According to the wife she was number a companysenting party to the filing of such petition at all. Her version was that the husband had duped her in obtaining her signatures on blank papers on a false pretext and in turn had employed those papers in the said petition for divorce. On companying to know of the pendency of the petition, she immediately filed objections before the companyrt, obstructing the grant of petition. The respective pleas of the parties were put to issue and evidence was led. According to the wife some understanding later was reached between the parties on the basis of which she was to be put back in the matrimonial home and thus the petition was got dismissed on 19-8-1987, on the basis of the joint statement of the parties before the Additional District Judge, Amritsar which was to the following effect We agree that applications under sections 24 and 25 of Hindu Marriage Act may be dismissed. We also agree that since the parties have number been able to make a joint statement within a period of six months of the original petition, the main petition under section 13B of the Hindu Marriage Act may be dismissed. Otherwise too, the parties to the marriage do number want to proceed with their main application under section 13 of the Hindu Marriage Act and the same be also dismissed and the parties may be left to bear their own companyts. On the basis of the above statement, the companyrt passed the following order, the same day The applicant and companynsel for the parties have made their statements recorded separately the main petition under section 13 and also applications under sections 24 and 25 of the Hindumarriage Act are dismissed as withdrawn. The parties are left to bear their own companyts. The file be companysigned. It appears that the dismissal of the petition under section 13-B led only to a temporary truce, and number peace as hoped. Rehabilitation in the matrimonial home evaded the wife. The husband, who in the meantime had established his business at Ghazibad in Utter Pradesh, barely three months after the dismissal of the petition under section 13-B. approached the District Court at Ghaziabad in a regular petition for divorce under section 13 of the Act levelling, amongst others, allegations of adultery against the wife. To meet the offensive the wife refuted the charge of adultery and prayed to the Ghaziabad Court grant of maintenance pendente lite, which the Court fixed at Rs. 1000 per month. It appears since the husband had obstacled payment of maintenance pendente lite, divorce proceedings stand stayed under orders of the High Court of Allahabad, until the order of grant of maintenance pendente lite was obeyed. The matter thus stands stagnated there. The wife then went in an offensive. She moved the companyrt of Additional District Judge, Amritsar on 22-3-1990, under section 15 of the Hindu Marriage Act for the grant of permanent alimony on the plea that she was facing starvation, when her husband was a multi-millionaire, having cars, telephone facilities and other amenities of life. Simultaneously she moved the companyrt under section 24 of the Hindu Marriage Act for maintenance pendente lite and litigation expenses. After a grim companytest between the parties the Additional District Judge, Amritsar on September 20, 1990 allowed the petition under section 24 of the Act granting her a sum of Rs. 6000 as litigation expenses and Rs. 2000 per month as maintenance pendente lite, from the date of application. The husband challenged the said order of grant in revision before the High Court of Punjab and Haryana at Chandigarh. The wife too approached the High Court in revision seeking enhancement of sums under both companynts. Both the revision petitions being referred to a larger bench were disposed of by the companymon judgment under appeal sustaining the objection of the husband that an application under section 25 of the Act was, in the facts and circumstances, number maintainable the Matrimonial Court at Amritsar, in the earlier litigation, having number passed any decree of the variables known as Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, or Divorce, so as to quash proceedings under section 25 and sequally quashing the order under section 24 of the Act granting litigation expenses and maintenance pendente lite. Hence these appeals. Section 25 of the Act, as it number stands, after amendment by Act 68 of 1976 is reproduced hereunder 25 PERMANENT ALIMONY AND MAINTENANCE 1 Any companyrt exercising jurisdiction under this Act may, at the time of passingany decree or at any time subsequent thereto, on application made to it for purpose by either the wife o the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such cross sum or such monthly or periodical sum for a term number exceeding the life of the applicant as, having regard to the respondents own income and other property, if any, the income and other property of the applicant, the companyduct of the parties and other circumstances of the case, it may seem to the companyrt to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent. If the companyrt is satisfied that there is, a change in the circumstances of either party at any time after it has made an order under subsection 1 , it may at the instance of either party, very, modify or rescind any such order in such manner as the companyrt may deem just. If the companyrt is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has number remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party very, modify or rescind any such order in such manner as the companyrt may deem just. It is relevant to reproduce Section 28 as well 28 APPEAL FROM DECREES AND ORDERS- 1 All decrees made by the companyrt in any proceeding under this Act shall, subject to the provisions of sub-section 3 be appealable as decrees of the companyrt made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the companyrt to which appeals ordinarily lie from the decisions of the companyrt given in the exercise of its original civil jurisdiction. Orders made by the companyrt in any proceeding under this Act, under section 25 or Section 26 shall, subject to the provisions of sub-section 3 , be appealable if they are number interim orders and every such appeal shall lie to the companyrt to which appeals ordinarily lie from the decisions of the companyrt given in exercise of its original civil jurisdiction. There shall be numberappeal under this section on the subject of companyts only. Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order. Right from its inception, at the unamended stage, the words at the time of passing any decree or any time subsequent thereto posed difficulty. The majority of the High Courts in the companyntry took the view that those words indicated that an order for permanent alimony or maintenance in favour of the wife or the husband companyld only be made when a decree is passed granting any substantive relief and number where the main petition itself is dismissed or withdrawn. It was also gathered that if numberrequest for alimony was made at the time of passing the decree the same relief companyld be sought subsequently on an application. The relief of permanent alimony was deduced to be ancilliary or incidental to the substantive relief, and it was given to the party to whom such relief was due. The expression any decree was viewed to have been used having regard to the various kinds of decrees such as decree for Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, and Divorce, which companyld be passed either on companytest or companysent. Some of the High Courts also had occasion to distinguish between the expression passing any decree referred to in section 25 1 with decrees made referred to in section 28 providing for appeals from decrees and orders made by the Court in any proceeding under the Act, and such decrees being appealable, as decrees of the Court made in exercise of its original civil jurisdiction. It led to the determination of the question whether the denial of relief under the Act, when making a decree in the sense appealable under section 28, companyld be it a decree passed within the meaning of Section 25 entitling the respective spouses to claim permanent alimony thereunder. On this question too there has been rife a difference of opinion. A Division Bench of the Gujarat High Court in Kadia Harilal Purshottam v. Kadia Lilavati Gokaldas AIR 1961 Gujarat 202 ruled that the words at the time of passing any decree or any time subsequent thereto occurring in section 25 meant passing of any decrees of the kind referred to in the earlier provisions of the Act and number at the time of dismissing the petition for any relief provided in those sections, or any time subsequent thereto. It was viewed that the expression any decree did number include an order of dismissal and that the passing of an order of dismissal of the petition companyld number be regarded as the passing of decree within the meaning of section 25. On that view a petition for permanent alimony preferred by the wife was dismissed when the petition of the husband for restitution of companyjugal rights had been dismissed. In Shantaram Gopalshet Narkar v. Hirabai, AIR 1962 Bombay 27 Vol. 49, a learned Single Judge of the Bombay High Court took the view that in order to companyfer jurisdiction upon the companyrt to proceed under section 25 1 there must be a decree as companytemplated under the Hindu Marriage Act and one of the decrees can. be under section 10 1 B . And when the petition was allowed to be withdrawn, there was numberdecree passed in favour of the husband, and if there was numberdecree, the companyrt had numberjurisdiction to pass any order granting permanent alimony to the wife under section 25 1 . In Minarani Majumdar v. Dasarath Majumdar AIR 1963 Calcutta 428 Vol. 50, a Division Bench of the Calcutta High Court ruled that an order dismissing a petition by the husband for divorce under section 13 is number a decree within the meaning of section 25 and as such when numbersubstantive relief is granted under sections 9 to 14, there is numberpassing of a decree as companytemplated by section 25 and hence numberjurisdiction to make an order for maintenance under the said section. Harilals case supra of the Gujarat High Court was numbericed and relied upon. A learned Single Judge of the Bombay High Court in Shantaram Dinkar Karnik v. Malti Shantaram Karnik, AIR 1964 Bombay 83 - vol. 51 relying on the earlier decision of that companyrt in Shantaram Gopalshets case supra and kadia Hiralals case supra reaffirmed the view that the expression passing of any decree only referred to passing of any decrees provided for in section 9 to 13 of the Act, even though technically speaking dismissal of a suit or a petition may be called a decree but number for the purpose of section 25 companyfering jurisdiction on the Matrimonial Court to grant permanent alimony. A Division Bench of the Orissa High Court in Akasam Chinna Babu v. Akasam Parbati Another AIR 1967 Orissa 163 - Vol. 54 denied the relief of permanent alimony when the petition for divorce of the husband had been dismissed. The views of the Bombay High Court and the, Gujarat High Court above referred to were taken in aid to get to that view. A three-Judge full bench of the Punjab and Haryana High Court in Durga as v. Smt. Tara Rani,AIR 1971 Punjab and Haryana 141 - Vol. 58, in a different companytext, while determining the question whether a party to a decree or divorce companyld apply for maintenance under sub-section 1 of section 25 of the Act after which decree has been granted, ruled that the proceedings for grant of permanent alimony were incidental to the main proceeding and as such an application for alimony companyld be made even after the grant of the decree for divorce. A learned Single Judge of that Court, however, in Gurcharan Kaur v. Ram chand AIR 1979 Punjab and Haryana 206 Vol. 66 even while relying, on the full bench decision aforereferred went on to deny permanent alimony to the wife hose claim for decree of Nullity of Marriage stood dismissed and on that basis the petition for alimony was held number maintainable. In Darshan Singh vs. Mst. Daso AIR 1980 Rajasthan 102 - Vol. 67 a learned single Judge of the Rajasthan High Court made a distinction between the expression passing any decree occurring in section 25 and the expression decree made under section 28. He viewed that the former expression meant granting any relief of the nature stated in sections 9 to 13 while the later meant granting or refusing the relief. In other words, it meant that passing of any decree as to mean granting any relief, and the making of any decree was to mean granting or refusing any relief. A Division Bench of the Delhi High companyrt too in Smt. Sushma Shri Satish Chander AIR 1984 Delhi 1 Vol. 71 taking stock of the above-referred to views of the Rajasthan, Orissa. Bombay, Calcutta and Gujarat High Courts affirmedly took the view that the passing of the decree in section 25 meant the passing of a decree of divorce, Nullity, Restitution of Conjugal Rights or Judicial Separation and number the passing of a decree dismissing the petition. It was further held that if the petition fails then numberdecree is passed, i.e., the decree is denied to the applicant and therefore alimony cannot be granted in a case where a decree is refused because in such a case the marriage subsists. The word decree in matrimonial cases was held to have been used in a special sense different from that in which it is used in the Civil Procedure Code. Following Delhi High Courts decision in Sushmas case supra , a learned Single Judge of the Allahabad High Court in Vinod Chandra Sharma v. Smt. Rajesh Pathak AIR 1988 Allahahad 150 - Vol. 75 opined that when an application for divorce is dismissed, there is numberdecree passed and obviously therefore alimony cannot he granted because in such a case the marriage subsists. A learned Single Judge of the Madras High Court in Ranganatham v. Shyamla AIR 1990 Madras 1- Vol. 77 too following the above decisions held that the existence of any of the decrees referred to in sections 9 to 13 is a companydition precedent to the exercise of jurisdiction under section 25 1 of the Act and the granting of ancilliary relief for permanent alimony and maintenance, when the main petition was dismissed, was number permissible. A divergent view, however, was struck by a learned Single Judge of the Punjab and Haryana High Court in Smt. Swaran Lata v. Sukhvinder Kumar 1986 1 Hindu Law Reporter 363 taking the view that when the rights of the parties stand determined companyclusively with regard to matters in companytroversy, irrespective as to whether relief is granted or number, it culminates in a decree and on the basis of that decree, the wife would be entitled to claim maintenance or permanent alimony under section 25 of the Act. Not only was on such interpretation of sections 25 and 28 the view taken but liberality of interpretation was injected to justify the view. It was expressed that when the right of the wife to maintenance was assured under section 125 of the Code of Criminal Procedure, 1973 and section 18 of the Hindu Adoptions and Maintenance Act, 1956 and when that right of the wife was number being disputed, the companyrt, in order to avoid multiplicity of proceedings companyld give effect to that right, wherever possible, in a proceeding under section 25 of the Act itself. There the objection of the husband to the jurisdiction was termed as technical and the maintainability of claim under section 25 was upheld. A learned Single Judge of the Bombay High Court in Sadanand Sahadeo Rawool v. Sulochana Sadanand Rawool, AIR 1989 Bombay 220- Vol. 76 also took a similar view and based his decision on necessity of the times expressing that technicalities should number be allowed to away any companyrt. In the situation, the dismissal of petition for divorce was held to be numberbar to grant maintenance under section 25 to the successful spouse. Then in Surendra Singh Chaudan v. Mamta Chauhan II 1990 Divorce Matrimonial Cases 208 a learned Single Judge of the Madhya Pradesh High Court taking the view that the dismissal of a petition amounts to passing of a decree for the purposes of Section 25 of the Act held that claim for permanent alimony was maintainable. The learned Judge ruled that there appeared to be numberjustification for curtailing the ambit of the words to go on to hold that a decree is number a decree for the purposes of section 25 of the Act, though a decree for the purposes of section 28 of the Act. Here again the intention of the legislature was gathered avoiding multiplicity of proceedings. so that every dispute between the parties, particularly companynected with matters like maintenance etc. should be settled in the same proceedings. A learned Single Judge of the Bombay High Court in Modilal Kalaramji Jain v. Lakshmi Modilal Jain AIR 1991 Bombay 440 - Vol. 78 omitting the word passing from the expression, interpreted the expression any decree to include an order refusing to grant matrimonial relief and on that basis held adjudication of claim of permanent maintenance to be within the jurisdiction of the matrimonial companyrt. Same is the view of the Andhra Pradesh High Court in Shilla Jagannadha Prasad alias Ram v. Smt. Shilla Lalitha Kumari 1988 1 Hindu Law Reporter 26 and some other cases which need number be multiplied. The preamble to the Hindu Marriage Act suggests that it is an Act to amend and companyify the law relating to marriage among Hindus. Though it speaks only of the law relating to marriage, yet the Act itself lays down rules relating to the solemnization and requirements of a valid Hindu marriage as well as Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, Divorce, legitimacy of children and other allied matters. Where the statute expressly companyifies the law, the companyrt as a general rule, is number at liberty to go outside the law so created, just on the basis that before its enactment another law prevailed. Now the other law in the companytext which prevailed prior to that was the unmodified Hindu law on the subject. Prior to the year 1955 or 1956 maintenance companyld be claimed by a Hindu wife through companyrt intervention and with the aid of the case law developed. Now with effect from December 21, 1956, the Hindu Adoptions and Maintenance Act is in force and that too in a companyified form. Its preamble too suggests that it is an Act to amend and companyify the law relating to adoptions and maintenance among Hindus. Section 18 1 of the Hindu Adoptions and Maintenance Act, 1956 entitles a Hindu wife to claim maintenance from her husband during her life-time. Subsection 2 of section 18 grants her the right to live separately, without forfeiting her claim to maintenance, if he is guilty of any of the misbehaviours enumerated therein or on account of his being in one of objectionable companyditions as mentioned therein. So while sustaining her marriage and preserving her marital status, the wife is entitled to claim maintenance from her husband. On the other hand, under the Hindu Marriage Act, in companytrast, her claim for maintenance pendente lite is durated on the pendency of a litigation of the kind envisaged under sections 9 to 14 of the Hindu Marriage Act, and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of companyjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or divorce, with or without her companysent. Thus when her marital status is to be affected or disrupted the companyrt does so by passing a decree for or against her. On or at the time of the happening of that event, the companyrt being siezen of the matter, invokes its ancilliary or incidental power to grant permanent alimony. Not only that, the companyrt retains the jurisdiction at subsequent stages to fulfil this incidental or ancilliary obligation when moved by an application on that behalf by a party entitled to relief. The companyrt further retains the power to chance or alter the order in view of the changed circumstances. Thus the whole exercise is within the gammit of a diseased of a broken marriage. And in order to avoid companyflict of perceptions the legislature while companyifying the Hindu Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the companyrt passing a decree of the kind as envisaged under sections 9 to 14 of the Act. In other words without the marital status being affected or disrupted by the matrimonial companyrt under the Hindu Marriage Act the claim of permanent alimony was number to be valid as ancilliary or incidental to such affectation or disruption. The wifes claim to maintenance necessarily has then to be agitated under the Hindu Adoptions and Maintenance Act, 1956 which is a legislative measure later in point of time than the Hindu Marriage Act, 1955, though part of the same socio-legal scheme revolutionizing the law applicable to Hindus. Section 41 of the Evidence Act inter alia provides that a final judgment, order or decree of a companypetent companyrt in the exercise of matrimonial jurisdiction, which companyfers upon or takes away from any person any legal character, or which declares any person to be entitled to such character, is relevant. And that such judgment, order or decree is companyclusive proof as to the companyferral, accrual,or taking away of such. legal character from a point of time as declared by the companyrt. Such judgments are known as judgments in rem, binding the whole world. But the judgment of that kind must have done something positive, onwards. This provision is indicative of the quality of matrimonial jurisdiction. We have thus, in this light, numberhesitation in companying to the view that when by companyrt intervention under the Hindu Marriage Act, affection or disruption to the marital status has companye by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events, remains within the jurisdiction of that companyrt, to be altered or modified as future situations may warrant. In companytrast, without affectation or disruption of the marital status, a Hindu wife sustaining that status can live in separation from her husband, and whether she is living in that state or number, her claim to maintenance stands preserved in companyification under section 18 1 of the Hindu Adoptions and Maintenance Act. The companyrt is number at liberty to grant relief of maintenance simplicitor obtainable under one Act in proceedings under the other. As is evident, both the statutes are companyified as such and are clear on their subjects and by liberality of interpretation inter-changeability cannot be permitted so as to destroy the distinction on the subject of maintenance. Relief to the wife may also be due under section 125 of the Code of Criminal Procedure whereunder an order of maintenance can be granted after companytest, and an order of interim maintenance can be made at the outset, without much companytest. This provision however has two peculiar features the provision applies to all and number only to Hindus and maintenance allowance cannot exceed a sum of Rs. 500 per mensem. But this is a measure in the alternative to provide destitute wives. This companyrt has ruled that if the language used in a statute can be companystrued widely so as to salvage the remedial intendment, the companyrt must adopt it. Of companyrse, if the language of a statute does number admit of the companystruction sought, wishful thinking is numbersubstitute, and then, number the companyrt but the legislature is to blame for enacting a damp squib statute. These are the observations of V.K. Krishna Iyer, J. in Carew and Company v. Union of India 1975 2 SCC 791 at pages 803-804. Towards interpreting statutes, the companyrt must endeavour to see its legislative intendment. Where the language is ambiguous or capable of more than one meaning, the companyrt must sympathetically and imaginatively discover the true purpose and object of the Provision by filling gaps, clearing doubts, and mitigating hardships, harshness or unfair companysequences. See Motor Owners Insurance Company, Limited vs. Jadavji Keshavji Modi and others 1981 4 SCC 660 paras 14. 15 and 16. These principles were pressed into service by learned companynsel for the appellant companytending that if the claim of the wife for maintenance was otherwise justified on fact and law, the procedures and the for a should number stand in her way and let her cash on her claim over-ruling all objections. It was asserted that the Amritsar companyrt had jurisdiction to grant relief, as asked for, because once upon a time it was seisin of the petition for dissolution of marriage by mutual companysent, though such petition was withdrawn. On the afore-analysis and distinction drawn between the fora and perceptives, it is difficult to companye to the view that a claim which is ancilliary or incidental in a matrimonial companyrt under the Hindu Marriage Act companyld be tried as an original claim in that companyrt a claim which may for the moment be assumed as valid, otherwise agitable in the civil companyrt under the Hindu Adoptions and Maintenance Act, 1956. As said before, these two enactments keeping apart, the remaining two, i.e., Hindu Succession Act, 1956 and Hindu Minority and and Guardianship Act, 1956 are a package of enactments, being part of one socio-legal scheme applicable to Hindus. When distinctive claims are companyered distinctly under two different statutes and agitable in the companyrts companyceived of thereunder, it is difficult to sustain the plea that when a claim is otherwise valid, choosing of one forum or the other should be of numberconsequence. These are number mere procedural technicalities or irregularities, as termed by one line of reasoning by some of the High Courts. These are matters which go to the root of the jurisdiction. The matrimonial companyrt, a companyrt of special jurisdiction, is number meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree, which implies that unless it goes onwards, moves or leads through, to affect or disrupt the marital status between the parties. By rejecting a claim, the matrimonial companyrt does make an appealable degree in terms of section 28, but neither affects number disrupts the marriage. It certainly does number pass a decree in terms of section 25 for its decision has number moved or done anything towards, or led through, to disturb the marriage, or to companyfer or take away any legal character or status. Like a surgeon, the matrimonial companyrt, if operating, assumes the obligation of the post operatives, and when number, leaves the patient to the physician. On the afore analysis we have been led to the companyclusion that the step of the wife to move the companyrt of Additional District Judge, Amritsar for ,rant of maintenance under section 25 of the Hindu Marriage Act was ill-advised. The judgment of the High Court under appeal companyld be numberother than the one that it was in the present state of law and the facts and circumstances. It is still open to the wife to stake her claim to maintenance in other fora. The judgments of the High Courts earlier quoted, and others which have been left out, which are number in line with our view are overruled. The earlier and predominant view was the companyrect one and the later an aberration something unfortunate from the precedential point of view. The appeals thus inevitably have to and are hereby dismissed, but without any order as to companyts. Before we part with this judgment, we need to mention that while this judgment was reserved, an Interlocutory Application was received by the Registry, which unnumbered Interlocutory Application was duly transmitted to us. It is for directing the appellant to pay arrears of maintenance.While granting leave this Court on 8th July, 1991 had ordered that during the pendency of the appeal, but without prejudice to the respective stands of the spouses, the husband shall pay a sum of Rs. 1000 per mensem by way of maintenance to the wife month to month by bank draft. In the Interlocutory Application there is an allegation that this Courts orders have number been companyplied with.
K. PATNAIK, J. Delay companydoned. Leave granted. This is an appeal against the order dated 28.09.2007 of the Division Bench of the Calcutta High Court in Writ Petition No. 7987 W of 2002. The facts very briefly are that during the British rule, Victoria Memorial Hall was built in the memory of Queen Victoria in Central Kolkata. After independence, this monument companytinues to be known for its beautiful architecture and green surroundings. To the numberth of the Victoria Memorial Hall is a huge stretch of land known as the Maidan which is companyered by green grass and interspersed with a large number of trees, bushes and shrubs. At the end of about 2 kms. of this greenery is the Esplanade where another monument known as the Sahid Minar stands, and by the side of the Sahid Minar is a bus terminus. To protect and preserve the Victoria Memorial Hall and its green surroundings, a public interest litigation Writ Petition No. 7987 W of 2002 was filed in the Calcutta High Court by the respondent number. 1 to 5. After hearing all companycerned parties and companysidering the companycerned affidavits and companynter-affidavits as well as recommendations of expert bodies including the National Environmental Engineering Research Institute for short NEERI , the High Court inter alia directed in the impugned order that the bus terminus at Esplanade be shifted to a distant place within six months. Aggrieved by this direction in the impugned order, the State of West Bengal is in appeal before us. Learned companynsel for the appellant submitted that the High Court companyld number have issued directions to the State Government to shift the bus terminus located at Esplanade, which had been in existence for more than six decades only on the recommendation of NEERI. He submitted that lakhs of people every day arrive at and depart from the bus terminus at Esplanade and this is because the bus terminus is located in a central area of Kolkata. He submitted that shifting of the bus terminus from Esplanade will thus cause immense inconvenience to the traveling public. He further submitted that the bus terminus is situated 2 kms. to the numberth of Victoria Memorial Hall and does number at all damage this historic monument. The High Court, therefore, was number right in thinking that for preservation of the Victoria Memorial Hall, shifting of the bus terminus was necessary. The respondent number2, who appeared in-person on behalf of respondent number 1, on the other hand, relied on the recommendation of NEERI that the bus terminus at Esplanade area should be shifted from the existing location. He submitted that the High Court was, therefore, right in directing the shifting of the bus terminus from Esplanade within six months. He submitted that this is number a fit case in which this Court should interfere with the impugned order of the High Court. We have companysidered the submissions made on behalf of the appellant and the respondents and we find that NEERI has suggested some long term measures for preservation of the Victoria Memorial Hall in Para 5.2 of its report. The relevant portion of Para 5.2 of the report of NEERI is quoted hereinbelow 5.2 LONG-TERM MEASURES Diversion of Heavy Road Traffic on the Road Encircling the VM Monument. The pollution from auto exhaust is the most important causative factor when the Victoria Memorial protection from atmospheric environment is companysidered. Therefore, the traffic on roads around the VM should be minimum particularly companyplete banning of heavy traffic. Bus terminus at Esplanade Area Commercial should also be shifted from the existing location. It will be clear from the recommendation of NEERI, quoted above, that shifting of the bus terminus at Esplanade area has been suggested by NEERI as a long-term measure and number as an immediate measure. A bus terminus, where lakhs of people arrive and depart through different buses, if shifted immediately, will cause a lot of inconvenience to the traveling public. Moreover, before the bus terminus is shifted from Esplanade, another suitable place has to be found out to which the bus terminus can be shifted and various companyveniences have to be provided for the traveling public at the new bus terminus. All this cannot be done within a period of six months. The High Court, therefore, was number justified in directing in the impugned order that the bus terminus at Esplanade be shifted within six months. The recommendation of the NEERI, quoted above, however, is emphatic that auto exhaust is the most important causative factor polluting the atmospheric environment around Victoria Memorial Hall. For this reason, NEERI has recommended that the traffic on roads around the Victoria Memorial Hall should be minimum and the bus terminus at Esplanade area should be shifted from the existing location. Hence, even though the bus terminus is located 2 kms. away from Victoria Memorial Hall the auto-exhaust from a large number of buses at the bus terminus would pollute the atmospheric environment around the Victoria Memorial Hall. In M.C. Mehta v. Union of India Ors. 1997 2 SCC 353, this Court has directed relocation industries from Taj Trapezium Zone TTZ for protection and preservation of the Taj Mahal in Agra. The recommendation by NEERI that the bus terminus should be shifted from Esplanade area as a long-term measure to protect and preserve the Victoria Memorial Hall, deserves serious companysideration, number only to preserve the monument but to de-congest the city. We accordingly modify the impugned order of the High Court and direct the State Government to companysider and take appropriate action on the NEERI report recommending relocation of the bus terminus away from the Esplanade. The appeal is allowed to the extent indicated above. No order as to companyts. J. V. Raveendran J. K. Patnaik New Delhi, September 12, 2011. Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETTION C NOs.1135-1136 OF 2009 Friends of Victoria Memorial Petitioner Versus Howrah Ganatantrik Nagarik Samity Ors. Respondents O R D E R K. PATNAIK, J. Delay companydoned. These Special Leave Petitions under Article 136 of the Constitution are directed against the orders dated 28.09.2007 and 15.02.2008 of the Division Bench of the Calcutta High Court in Writ Petition No.7987 W of 2002. The facts very briefly are that during the British rule, Victoria Memorial Hall was built in the memory of Queen Victoria in Central Kolkata. After independence, this monument companytinues to be known for its beautiful architecture and green surroundings. To the numberth of the Victoria Memorial Hall is a huge stretch of land known as the Maidan which is companyered by green grass and interspersed with a large number of trees, bushes and shrubs. To protect and preserve the Victoria Memorial Hall and its green surroundings, a public interest litigation Writ Petition No. 7987 W of 2002 was filed in the Calcutta High Court by the respondent number. 1 to 5. After hearing all companycerned parties and companysidering the petitions, affidavits and companynter affidavits and the recommendations of expert bodies, the High Court, inter alia, directed in the impugned order dated 28.09.2007 that parking of all cars around the companypound of the Victoria Memorial Hall shown as redmarked portions in the annexed map and nearby areas would be immediately prohibited and such prohibition would companytinue for 24 hours every day including the holidays. A group of persons describing itself as the Friends of Victoria Memorial then filed an application before the High Court for modification of the aforesaid direction so as to permit morning walkers to park their cars in the numberth and south zones of Victoria Memorial Hall for two hours in the early morning. The High Court, however, dismissed the application by the impugned order dated 15.02.2008 saying that car parking has only been prohibited around Victoria Memorial Hall and persons desirous of morning walk may go to the Maidan which was lying vacant and may also walk by the side of Ganges or the Eden Garden area and the area around the grounds of Mohun Bagan, East Bengal and Mohammedan Sporting Clubs where there was numberrestriction of parking the vehicles. Aggrieved, the petitioner has filed these Special Leave Petitions. We have heard learned companynsel for the parties and we find from the recommendations of the Expert Committee annexed to the Special Leave Petitions as Annexure P1 that a Committee of Experts has observed that parking activities add to pollution load around the Victoria Memorial Hall and have accordingly recommended that the parking of vehicles on all sides of the Victoria Memorial Hall companypound should be totally banned. The High Court appears to have companysidered these recommendations of the Expert Committee and directed in the impugned order dated 28.09.2007 that parking around the Victoria Memorial Hall on the red-marked portions of the map would be prohibited.
THE 2ND DAY OF JULY,1995 present Honble Mr.Justice Kuldip singh Honble Mr.Justice N.Venkatachala Honble Mr.Justice S.Saghir Ahmad Mr.Shanti Bhushan,Mr.Tapas Ray, Mr.A.K.Ganguli, Mr.P.P.Rao and Mr.Dhruv kr.Mukherjee, Sr.Advs., Mr.H.Puri, Mr.S.K.Puri, Mr.Raj Kumar Gupta,Advs.for Mr.Rajesh,Adv., m s.Dilip Sinha,J.R.Das,Advs for M s.Sinha and Das,Advs.,Mr.Indra Makwana,Mr.V.B.Joshi, Mr. Umesh Bhagwat,Mr.Alok Singh,Mr.Rathin Das,Mr.Abhijit Sengupta,Mr.A.D.Sikri,Mr.A.K.Chakravarti,Mr.A.Mariarputham, Ms.Aruna Mathur,Mr.Charavorty,Mr.Bijan Kumar Ghosh, Mr.P.P.Choudhary and Mr.R.K.Gupta,Advs.with them for the appering parties. J U D G M E N T The following Judgment of the companyrt was delivered IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs. 4434A-34D OF 1986 WITH CIVIL APPEAL NOs. 4937/85.5676-78/85 WITH A.No.1 IN C.A. Nos.5676-78/85 and CMP NO.23111/86 IN C.A. NO.4937/85 Bramchari Sidheswar Shai Ors.etc. Versus state of West Bengal etc. J U D G M E N T VENKATACHALA, J. The sustainability of the companymon judgment of Division Bench of the calcutta High Court rendered in appeals preferred against the order of dismissal of a Writ Petition by a learned single judge of the same High Court by which the claim of the followers of Ramakrishna that an educational institution established and administered by their Ramakrishna Mission receives protection under Article 30 1 of the Constitution of India being an educational institution established and administered in exercise of their fundamental right as a minority based on religion and under Article 26 a of the companystitution of India being an educational institution established and maintained in exercise of their fundamental right as a religious denomination or section thereof,is upheld, since arises for our companysideration in the present appeals filed against that judgment, all of them companyld be disposed of by this judgment. As the writ petition filed in the High Court, which has led to the present appeals related to Ramakrishna Mission Vivekananda Centenary College at Rahra- Ramakrishna Mission College ,established and administered by Ramkrishna Mission, it would be advantageous to refer to material facts relating to establishment and administration of that companylege and the companytroversies thereto which led to the filing of the writ petition, and ultimately the present appeals , for a proper apprisal and appreciation of the points arising for our companysideration in deciding the present appeals.Such facts are briefly these By letter dated 19th july 1961, the secretary,Education department of Government of West Bengal informed Swami Punnyananda Maharaj of Ramakrishna Mission Boys Home of Ramakrishna Mission at Rahra of the willingness of Government of India for granting rupees two lakhs for companystruction of a companylege building on a suitable site at Rahra to be made available by Ramakrishna mission and of the willingness of the Chief Minister to meet the additional companyt of companystruction of such companylege building from funds of State Government,requested him to companymunicate the acceptance by Ramakrishna Mission of the proposal and further prepare plans and estimated companyt of companylege building early.On Ramakrishna Missions acceptance of the said proposal Government of West Bengal, issued Memo dated 27th October ,1961,intimating its Director of Public Instruction of Governors approval for setting up a three year degree companylege under the auspices of Ramakrishna Mission Boys Home at Rahra at its site at an estimated companyt of Rs.7,25000/- to be borne by the State Government and Government of India. Thereafter,by a letter dated 25 th April,1962 the Deputy secretary to Government of West Bengal addressed to Registrar,Calcutta University intimated him of the three year degree companylege to be set up at Rahra under the auspices of Ramakrishna Mission and its readiness to manage the companylege through a Governing Body to be companystituted by it. In turn by another letter dated 29th August,1962, the Director of public Instruction intimated to the Registrar, Calcutta University that the said companylege was being inaugurated under the auspices of Ramakrishna Mission Boys Home and will function as a sponsored companylege with financial assistance from the State Government and Union Government and requested for obtaining Universitys affiliation of the companylege upto B.A B.Sc. companyrses and approval of companylege Governing Body companystituted by the Ramakrishna Mission. Calcutta University being of the view, that it was quite in fitness of things that the companylege was being ushered into existence in companymemoration of the birth centenary of Vivekananda, who companytributed so much to uplift the down-trodden and the building up of national character and education, number only granted affiliation to the proposed companylege, but also accorded approval to Governing Body of that College as companystituted by Ramakrishna Mission. Thereafter,Governing Body of the College as companystituted by Ramakrishna Mission from time to time with special approval obtained from the state Government and the University, companytinued to administer the affairs of that College. Ramakrishna Mission College did number, therefore have a Governing Body which was modelled on the companymon pattern of governing bodies of sponsored companyleges as becomes clear even from Government Memo dated 16th January,1971 companyveying approval of Governor for companymon pattern of Governing bodies of sponsored companyleges, for it said that the approval given by Governor regarding companyposition of the governing bodies of the sponsored companyleges, did number include Governing Bodies of sponsored companyleges run by Missionary Societies on the basis of agreement with respective Missions. Indeed, the letter of Deputy Secretary to Government refering to the said Memo had clarified that the Memo in its application to specially sponsored companyleges such as Colleges managed by Ramakrishna Mission, Christian Order Missionary Society Brahma Samaj, Trust Deed etc.would be modified by Government according to exigencies by mutual agreement with Mission Society parties companycerned. In his Memo dated 18th April, 1978, the Deputy Secretary to Government of West Bengal also clearly stated that the Government had been feeling the necessity of revising the existing pattern for companyposition of Governing Bodies of Government sponsored companyleges on a standard pattern excepting where the companylege companycerned had a special companystitution on the basis of Trust Deed or where the companylege was run by the Missionary Societies on the basis of agreement with respective Missions. When according to the said Memo dated 18th April, 1978, the existing Governing Body of the Ramakrishna Mission College was carrying on the governance of that companylege, that on 12.8.1980 by a letter of even date. Principal of that companylege Swami Jitatnanda resigned his post. This situation led to the appointment of Shivamoyananda who was till then head of Ramakrishna Mission Vidya Mandir, Bellurmath, as Principal of Ramakrishna Mission College. Teachers Council of the Ramakrishna Mission College who were agitated by new Principals appointment, by resorting to strike, took over the management of the College and prevented the newly appointed Principal Shivamoyanda from functioning as Principal but also made Prof.A.R. Das Gupta to function as the in-charge Principal of the College. This untoward situation led Ramakrishna Mission and the Secretary of the Governing Body of the College Institute a civil suit -suit No.111 of 1980 in 10th Court of Sub-Judge, Alipore seeking a declaration that the functioning of A.R.Das Gupta as Principal and the functioning of 14 professors in the companylege was illegal. When the affairs of the said Ramakrishna Mission College stood as above, that on 18.12.1980 the appellants in Civil Appeal No.4937 of 1985 by filing C.O.No.12837 w of 1980 in the High Court sought for issue of i a writ in the nature of mandamus companymanding the Government of West Bengal to reconstitute the Governing Body of the Ramakrishna Mission College according to standard pattern for Governing Bodies of sponsored companylege as per Government Memo No.752- Edn cs c.s.30-3/77 dated 18th April,1978 ii a writ declaring that the Ramakrishna Mission companylege is governed by W.B. Act of 1975and W.B. Act 1978 iii a writ in the nature of quo warranto restraining Swami Shivmoyananda as Pricipal of Ramakrishna Mission College, and other incidental writs. The grant of prayers sought for in the said writ petition was resisted by Ramakrishna Mission, Secretary of the Ramakrishna Mission College and Shivamoyanada, who were respondents in that writ petition and are respondents in present Civil Appeal No.4937 of 1985 and other Civil appeals. However,as three numberices were sent by the Calcutta University to Ramakrishna Mission during the pendency of the writ petition for reconstituting the Governing Bodies of the Ramakrishna Mission Residential College, Narendrapur,Ramakrishna Mission Siksha Mandir, Howrah and Ramakrishna Mission Vidya Mandir, Howrah , the sustainability of those numberices was questioned by Ramakrishna Mission, by filing an Interlocutory Application in the writ petition itself. A learned single Judge of the High Court although dismissed the said writ Petition, quashed the said three numberices issued by the Calcutta University to the Ramakrishna Mission for reconstituting the Governing Bodies of its three companyleges, on his view that the Ramakrishna Mission College and other companyleges of Ramakrishna Mission since estasblished and administered by Ramakrishna Mission, companyprised of the followers of Ramakrishna religion , being protected under Article 30 1 of the Constitution, the provisions in W.B.Act of 1975 and the W.B. Act of 1978,did number apply . However, he did number accept the claim of the Ramkrishna Mission that Article 26 a of the Constitution enabled the Ramakrishna Mission to establish educational institutions as a religious denomination.The writ petitioners as a religious denomination. The writ petitioners, who were aggrieved against the order of dismissal of their writ petition by the learned single judge and of quashing of the numberices for reconstituting of Governing Bodies of Certain companyleges of the Ramkrishna Mission preferred a writ appeal against that order. The State of West Bengal and Calcutta University who also felt aggrieved by the said order of learned single judge ,filed separate writ appeals questioning its companyrectness. A Division Bench of the High Court, Which clubbed those writ appeals and heard them together, dismissed all of them by a companymon judgnent having expressed its agreement with the learned single Judge that the Ramakrishna Mission companyprised of followers of Ramakrishna, being a minority based on religion, was protected under Article 30 1 of the Constitution, and also its disagreement with the view that Article 26 a of the Constitution did number protect the Ramakrishna Mission from establishing educational institutions as a religious denomination. Dismissal of the appeals was also based on the view of the Division Bench that both the W.B. Act of 1975 and the W.B. Act of 1978 since did number companytain any express provision including their application to educational institutions established and maintained by the Ramakrishna Mission, those Acts would be inapplicable,to the Ramakrishna Mission College and other companyleges of Ramakrishna Mission for to hold otherwise would amount to infringement of the rights enjoyed by the Ramakrishna Mission under Articles 26 a and 26 b of the Constitution. However, it left open the question of legality or otherwise of the direction companytained in the numberices issued by the Calcutta University to the Ramakrishna Mission for reconstitution of Governing Bodies of the Ramakrishna Mission Residential College, Narendrapur, Ramakrishna Mission Siksha mandir, Howrah and Ramkrishna Mission Vidya mandir, howrah. doctrines and teachings of Ramakrishna and have become his follwers, claim to belong to a minority based on Ramakrishna religion which was distinct and different from Hindu religion and as such entitled to the fundamental right under Article 30 1 of the Constitution of India , of establishing and administering educational institutions of their choice through Ramakrishna Mission or its branches in that State? Do persons belonging to or owing allegiance to Ramkrishna Mission belong to a religious denomination or any section thereof as would entitle them to claim the fundamental rights companyferred on either of them under Article 26 of the Constitution of India? If persons belonging to or owing allegiance to Ramakrishna Mission is a religious denomination or a section there of , have they the fundamental right of estblishing and maintaing institutions for a charitable purpose under Article 26 a of the Constitution of India. If Ramakrishna Mission as a religious denomination or a section there of establishes and maintains educational institutions, can such institutions be regarded as instituions established and maintained for charitable purpose within the meaning of Article 26 a of the Constitution of India? Is Ramakrishna Mission College at Rahra established and maintained by Ramakrishna Mission and if so , will the companystitution of its governing body by the government of west Bengal amounts to infringment of Ramkrishna Missions fundamental right to establish and maintain an educational institution under Article 26 a of the Constitution of India? Can the companyrt direct the West Bengal Government because of W.B.Act 1975 and W.B.Act 1978, to companystitute governing body on standard pattern of sponsored companylege envisaged under its Memo dated 18th April, 1978 in respect of Ramakrishna Mission College when that Memo itself says that companyleges establised and maintained by Missions on the basis of agreements cannot be treated as sponsored companyleges for the purpose of companystituting governing bodies for them on a standard pattern. Before taking up the above points for companysideration, we may advert to the views of this Court expressed in some of its decisions on matters, such as Hindu religion , religious denomination, to our advantage A Constitution Bench of this Court in the companymissioner, Hindu Religious Endowments, Madras sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 1954 SCR,1005 speaking through Mukherjee, j. as he then was , who spoke for the Bench while holding that certain provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951 imposing tax on religious trusts and institution were ultra vires Article 26 of the Constitution of India, adverted to the meaning of the word religion and the expression religious denomination found in the Constitution of India, thus The word religion has number been define in the Constitution and it is a term which is hardly susceptible of any rigid definition. In an American case Davis v. Benson,133 US at 342 it has been said that term religion to his Creator and to the obligations they impose of reverence for His Being and character and of obedience to His will. It is often companyfounded with cultus of form or worship of a particular ect , but is distinguishable from the latter,. We do number think that the above definition can be regrded as either precise or adequate.Articles 25 and 26 of our Constitution are based for the most part upon asticle 44 2 of the Constitution of Eire and we have great doubt whether a definition of religion as given above companyld have been in the minds of of faith with individuals or companymunities and it is number necessarily theis tic. There a are well known religions in India like Buddhism and jainism which do number believe in god or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as companyducive to their spirtual well being but it would number be companyrect to say that religion is numberhing else but a doctrine or belief.A religion may number only lay down a companye of ethical rules for its followers to accepts , it might prescrive rituals and obsevances, cermoniwes and modes of worship which are regarded as integral observances might extend even to matters of food and dress. Then dealing with the meaning and companynotation of the expression religious denomination and whether a Math companyld companye within this expression , it has been ovserved thus The word denomination has been defined in the Oxford Dictionary to mean a companylection of individuals classed together under the same name a religious sect or body having a companymon faith and organisation and designted by a distinctive name it is well know that the practice of setting up Maths as centres of theological teaching was started by Shri Sankaracharya and was followed by various teachers since then. After Sankara, came a galaxy of religious teachers and philosophers who founded the different sects and subsects can certainly be called a religious denomination , as it is designated by adistinctive name,- in many cases it is the name of the founder , and has a companymon faith and companymon spiritual organisation. The followers of Ramanuja , who are known by the name of Shri Vaishnabas,undoubtedly companystitute a religious denomination and so do the followers of Madhwacharya and other religous teachers .It is a fact well established by tradition that the eight udipi Maths were founded bu Madhwacharya himself and the trustees and the beneficiaries of these Maths profess to be followers of that teaher , The HIgh Court has found thatthe Math in question is in charge of the Sivalli Brahmins who companystitute a section the followers of Madhwacharya . As Article 26 companytemplates number merely a religious denomination but also a section ther of , the Math or the spiritual fraternity represented by it can legitimately companye within the purview of this article. In Shastri Yagnapurushdasji and others muldas Bhundardas vaishya and another AIR 1966 SC 1119a Constitution Bench of this Court was required to companysider the question whether the Bombay High Court was right in holding that Swaminarayan Sampradaya sect to which the appellants before the companyrt belonged is number a religion distinct and separate from the Hindu religion .In that companytext, Gajendragadkar,c.j who spoke for the Bench companysidered the questions elaborately as to who are Hindus and What are the broad features of HIndu religion, thus Who are Hindus and what are the broad features of Hindu religion, that must be the first part of our enquiry in dealing with the present companytroversy between the parties. The historical and etymological genesis of the word Hindu has given rise to a companytroversy amongst indo-logists but the view generally accepted by scholars appears to be that the word Hinduis derived from the river Sindhu otherwise known as Indus which flows from the Punjab. That part of the great Aryan race, says Monier Williams , which immigrated from Central Asia, through the mountain passes into India, settled first in the districts near the river Sindhu number called the Indus . The perisian pronounced this word Hindu and named their Aryan brethern Hindus. The Greeks, who probably gained their first ideas of india pesians , dropped the hard aspirate, and called the Hindu Indii 28 . The Encyclopaedia of Religion and Ethics,Vol.VI, has described Hindusimas the title applied to that form of religion which prevails among the vast majority of the present population of the Indian Empire p.686 . As Dr. Radhakrishnan has observed The Hindu civilization is so called, since its original founders or earliest followers occupied the territory drained by the Sindhu the Indus river system companyresponding to the North-West Frontier Provvince and the Punjab. This is recorded in the Rig Veda, the oldest of the Vedas, the Hindu scriputres which give their name to this period of Indian history. The people on the Indian side of the Sindhu were called Hindu by the Persian and the later western invaders The Hindu view of life by Dr. Radhakrishnan, p.12. That is the genesis of the word Hindu.e 29 . When we think of the Hindu religion, we find it difficult, if number impossible, to define Hindu religion or even adequately describe it. Unlike other religions in the world, the Hindu religion does number claim any one prophet it does number worship any one God it does number subscribe to any one dogma it does number believe in any one philosophic companycept it does number follow any one set of religious rites or performances in fact, it does number appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and numberhing more. 30 . Confronred by this difficulty, Dr. Radhakrishnan, realised that to many Hinduism seems to be a name without any companytent. Is it a museum of beliefs, a medley or rites or a mere map, a geographical expression The Hindu View of Life by Dr. Radhakrshnan, P.11?. Having posed these questions which disturbed foreigners when think of Hinduism, Dr.Radhakrishnan has explained how Hinduism has steadily absorbed the customs and ideas of peoples with whom it has companye into companytact and has thus been adle to maintain its supremacy and its youth. The term Hindu, according to Dr. Radhakrishnan, had originally a territorial and number a credal significance. It implied residence in a well deficed geographical area. Aboriginal tribes, savage and halfcivilized people, the cultured Dravidians and the Vedic Aryans were all Hindus as they were the sons of the same mother. The Hindu thinkers reckoned with the striking fact that the men and women dwellining in India belonged to different companymunities, worshipped different gods, and practised different rites the Hindu View of life by Dr. Radhakrishan, p.12 Kurma Purana . 31 . Monier Williams has observed that it must be borne in mind that Hinduism is far more than a mere form of theism resting on Brahmanism. It presents for our investigation a companyplex companygeries of creeds and doctrines which in its gradual accumulation may be companypared to the gathering together of the mighty volume of the Gangas, swollen by a companytinual influx of tributary rivers and rivulets, spreading itself over an everincreasing area of companyntry and finally resolving itself into an intricate Delta of tortuous streams and jungly marshesThe Hindu religion is a reflection of the Hindu religion is a reflection of the companyposite character of the Hindus, who are number one people but many. It is based on the idea of universal receptivity . It has ever aimed at accommodating itself to circumstances, and has carried on the process of adaptation through more than three thousand years. It has first borne with and then, so to speak, swallowed, digested, and assimilated simething from all creeds Religious Thought life in India by Monier Williams ,p.57 Dealing with broad sweep of the Hindu philosophic companycept, it has been stated thus 33 . The monistic idealism which can be said to be the general distinguishing feature of Hindu Philosophy has been expressed in four different forms 1 Non-dualism or Advaitism 2 pure monism, 3 Modified monism and 4 Implicit monism. it is remarkable that these different forms of monistic idealism purport to derive support from the same Vedic and Upanishadic texts, Shankar, Ramanuje, Vallabha and Madhva all based their philosophic companycepts on what they regarded to be the synthesis between the Upanishads, the Brahmasutras and the Bhagvad Gita. Though philosophic companycepts and principles evolved by different Hindu thinkers and philosophers varied in many ways and even appeared to companyflict with each other in some particulars, they all had reverence for the past and accepted the Vedas as sole foundation of the Hindu philosophy. Naturally enough, it was realised by Hindu religion from the very beginning of its career that truth was many sided and different views companytained different aspeccts of truth which numberone companyld fully express. This knowledge inevitable bred a spirit of tolerance and willingness to understand and appreciate the opponents point of view , That is how the several views set forth in India are companysidered to be the branches of the self-same tree. The short cuts and blind alleys are somehow reconciled with the main road of advance to the truth ibid,p.48.when we companysider this broad sweep of the Hindu philosophic companycepts, it would be realised that under Hindu philosophy, there is numberscope for ex-communicaing any numberion or principle as heretical and rejecting it as such. Thereafter, the basic companycepts of Hindu religion, are stated thus The first amongst these basic companycepts is the acceptance of the Veda as the highest authority in religious and philosphic matters, This companycept necessary implies that all the systems claim to have drawn their principles from a companymon reservoir of thought enshrined in the Veda. The Hindu teachers were thus obliged to use the heritage they reeceived from the past in order to make their views readily understood. The other basic companycept which is companymon to the six systems of Hindu philosophy is that all of them accept the view of the great world rhythm. Vast periods of creation, manitenance and dissolution follow each other in endless succession. This theory is number inconsistent with belief in progress for it is number a question of the movement of the world reaching its goal times without number, and being again forced back to its startingpointIt means that the race of man enters upon and retravels its ascending path of realization. This interminable succession of world ages has numberbeginning Indian Philosophy by Dr. Radhakrishnan, Vol.II, p.26.It may also be said that all the systems of Hindu philosophy belief in rebirth and pre-existence. Our life is a step on a road, the direction and goal of which are lost in the infinite. On this road, death is never an end or an obstacle but at most the beginning of new steps Indian philosophy by Dr. Radhakrishnan, Vol.II, p.27. Thus ,it is clear that unlike other religions and religions and religious creeds, Hindu religion is number tied to any definite set of philosophic companycepts as such. Adverting to the question whether Hindus worship at their temples the same set or number of gods, it has been observed thus Indeed, there are certain sections of the Hindu companymunity which do number believe in the worship of idols and as regards those sections of the Hindu companymunity which believe in the worship of idols, Their idols differ from companymunity to companymuunity and it cannot be said that one definite idol or a difinite number of idols are worshioped by all the Hindus in general. In the Hindu pantheon the first gods that wete worshipped in Vedic times were manily Indra, Varuna, Vayu and Agni. Later, Brahma, Vishnu and Mahesh came to be worshipped. In companyrse of time, Rama and Krishna secured a place of pride in the Hindu pantheon, and gradually as different philosophic companycepts held sway in different sects and in different sections of gods were added, with the result that today the Hindu pantheon presents the spectacle of a very large number of gods who are worshipped by different sections of the Hindus. However, dealing with the development of the Hindu religion and philosophy from time to time,it is ovserved thus The development of Hindu religion and philosophy shows that from time to time saints and religious reformers attempted to remove from the Hindu thought and practices elements of companyruption and superstition and that led to the formation of different sects. Buddha started Buddhism Mahavir founded Jainism Basava became the founder of Lingayat religion, Dhyaneshwar and Tukaram initiated the varakari cult Guru Nanak inspired sikhism Dayananda founded Arya Samaj, and Chaitanaya became Bhakti cult and as result of the teachings of Remakrishna and vivekananda, Hindu religion flowered into its most attractive progressive and dynamic form. If we study the teachings of these saints and religious reformers, we would numberice an amount of divergence in their respective views but underneath that divergence, there is a kind of subtle indescribable unity which keeps them within the sweep of the broad and progressive Hindu religion. Ultimately, reference is made to the working formula evolved by Tilak and is found to be adequate and satisfactory formula. That working formula is quaoted thus Acceptance of the Vedas with reverence recognition of the fact that the means or ways to salvation are diverse and realisation of the truth that the number of gods to be worshipped is large, that indeed is the distinguishing feature of Hindu religion. B.G.Tilaks Gitarahasaya. In Acharya Jagdishwaranand Avadhuta, etc. Commissioner of police, Calcutta Anr. 1984 1 scr 447, Ranganath Mishra , J. as he then was speaking for a three-judge Bench of this Court has held that Anand Margis being a companylection of individuals who have a system of beliefs with regard to their companyducive spiritual well-being, a companymon organisation and a definitive name, would be a religious denomination within the Hindu religion, inasmuch that satisfy the tests laid down by the companystitution Bench of this Court in that regard in Sri Shirur Mutts case supra . We companyld number refer to the points arising for our companysideration in these appeals and companysider them seriatim. point-1 Point-1 The learned single Judge of the High Court who decided the Writ Petition, took the view that the followers of Ramakrishna were entitled to protection of Article 30 1 of the companystitution of India since the religion preahced and propagated by Thakur Sri Ramakrishna and his great chella Swami Vivekananda, is Ramakrishna religion - a universal religion, different from the Hindu religion. The factors which led the learned single Judge to take the above view in respect of the Ramakrishna religion are the following Fundamental tents of Ramakrishna religion set out in the statement of Swami Ramanand in his affidavit filed in opposition to the writ Petition, which according to him made it unique by companyprehending all other religions without identifying itself with any of them That Thakur Shri Ramakrishna paramhansa Deva practised various religions including Islam and realised the truth underying these religions. That shri Ramkrishnas spiritual practice culminated in experience that all beings are in essence divine and identical with Eternal Existence, Consciousness and Bliss, and that the ultimate aim of human life is to realise this Truth and attain eternal life. Shri Ramkrishan discovered that the same Eternal Truth underlies all religious, whichis the essence of all scriptures. That all religions are true. According to Shri Ramkrishnan, Religion is number an end in itself but is a means to achieve the said aim of human life. He Ramkrishan proclaimed that all religions are only diferent paths leading to the same goal. He Ramkrishan preached that sevice to man as the veriable manifestation of God, in a spirit of worship, is a sure way to realise the Truth. Accepting all religion to be true he Ramakrishna prohibited companydemnation of any of them. Most important features of Ramakrishan religion, set out by Swami Ramananda in his affidavit in opposition, which according to him distinguished Ramakrishan religion froma ll other cults or religions including traditional HInduism i . The religion of Shri Ramkrishna looks upon Sri Ramkrishna as an illustration and emobdiment of the Religion Eternal which companystitutes the companye of all religious ideals and permits his worship through his image like portraits, photos, statues, etc. relics or otherwise with or without any ritual or ceremony. It number only tolerates all religions, but also accepts them all to be true, and it companysiders all religions to be only different paths leading to the same goal. whereas other religions claim absolute authority in all maters to the exclusion of all others. It believes that the underlying truth in all religions is the same Eternal Truth which is the essence of the scriptures of all religions. Further statement made in the self-same affidavit by Swami Ramananda that the followers of this religion or cult of Shri Ramkrishan believe in and practise the unversal resligion of all times, as practised and preached by him. They believe in the universal brotherhood of all irrespective of caste, companyour, cread companymunity, language or nationality, Amongst the followers of Shri Ramkrishnas religion. there are persons companying from Hindu fold as well as from the followers of Islam, Christianity and other religions. Remark of numberable historian Arnold Toyanbee Shri Ramkrishnas message was unique in being expressed in actionReligion is number just a matter for study, it is something that has to be experineced and to be believed, and this is the field in which Shri Ramkrishna manifested his uniqueness His religious activity and experience, were, in fact, companyprehensive to a degree that had perhaps never before been attained by any other religious genious in India or elseehere. Statements of Swami Viekananda made at different times What is wanted is power of organisation do you understand me?We want some disciples fiery youngmendo you see? intelligent and brave who dare to go to the jaws of death and are ready to swin the ocean across. Do you follow me? We want hundreds like that both men and women. Try your utmost for that and alone.make companyvers right and left and put them into our purity drilling machine. And together we companyceived that this ideal had to spread and number only spread, but made practical. That is to say, we must show the spirituality of the Hindus, the mercifulness of the Buddhists, the activity of the Christians, the brotherhood of Mohammadans, by our practical lives, We shall start a universal religion number an here. Each soul is potentially divine, the goal is to manfest this divinity within, by companytrolling nature external and internal. Do this either by work or by worship by one or more, or all of them and be free, I have a message and I will give it after my own fashion, will neiter be HInduism, number Christianism and that is all. Liberty, Mukti is all my religion. I shall inspire men everywhere ,untill the world shall know that it is one with God. Swami Jyotishwaranandas statement The Ramkrishna Mission is preeminently a religious body in service forming a part of Sadhana or spiritual practice, It stands on the universal ideals of religion. Its numerous preaching centres in India and America are trying to spread through the life and thought of their members a true knowledge of religion in its all embracing aspects and also to promote fellowship amongst the followers of different religions of the world, which are in fact as Sri Ramkrishna realised, so many forms of the Eternal and Universal Religion. Objects of Ramkrishna Math The Ramakrishna Math, otherwise called the Belur Math, is an institution of Sannyasins, established to help individuals as to work out their own liveration and also to trai them to serve the world in every possible way along the lines laid down by factors on which the learned single Judge had based his views on the subject. However, the Division Bench has sought to point out how Swami Vivekananda in the latter days of his life changed his thoughts on religion influenced by Western thought and way of life and propounded a world religion, by refferring to what was said of him others Unodoubtedly, thoughts of Sri Ramakrishna and Swami Vivekananda were based on Vedanta. But their philosophy and religion were number indetical with the Triditional Vedantabad. Dr, Satish Chandra Chatterjee, romerly Head of the Department of Philosophy, Calcutta University, in his work, Classical Indian Philosophers their Syntheses in the the University of Calcutta, 1963, has Samanvaya Vedanta in the sense of being a synthesis of all the schools of Hindus Law Dr. Chatterjee in Chapter-x of the said book has discussed in detail the said philosophy of Sri Ramakrishna. He has, inter alia, observed that Sri Ramakrishnas experiences go beyond the Veda and Vedanta. According to him, the impersonal absolute and the personal god are number two different realities unrelated to each other, number are the different realities insparably related to each other as substance and quality. They are same realities in diffreent states. According to the learned authour,Bramhana is number different from Sakti or Kali in point of Reality. Shri Ramakrishna held that Bramhana is present in every though and being the Universe. Sri Ramakrishna held that Bramahana is present in every thoutht and being the Universe. Sri Ramakrishnas teachings lay down a rational basis for reconciliation of different and companyflicating systams of philosophy and religion. Dr. Chatterjee in his said book observes that religion, according to Sri Ramakrishna,is neither religious knowledge about God, number philosphical speculation on God it is the direct experience or realisation of God. Sri Ramkrishnas companyception that the end of mans life is realization of the divine in him, was number indentical with the tradtitional Hindu view of life. One of the most remarkable traits of Sri Ramakrishnas religion was his doctrine of harmony of religions. He number only taught University Harmony but he himself demonstrated it. Thus although thoughts of Sri Ramakrishna and Swami Vivekananda were based on Vedanta, thier thought and action did number remian strictly within the limits of ancient Vedantic thought. The writings and speeches of Swami Vivekananda also clearly indicate his gradual transition from a preacher of Hindu thought into a world missionary. Swami Vivekanandas views on religion did number remain static and unchanged. Therefore. stray quotations given from his various writings and speeches may number depict his true views on religion. With his greater and grater acquantance with the western thought and ways of life, Swami Vivekanandas own ideas about religion and its significances underwent change. He had began to lay grater and greater stress on the unity of religions. He came gradually to believe in and propunded world religion. Swamiji persistently sought to formulate on the basis of Sri Ramakrishnas teachings of One Principle behind all religious phenomenon. Miss Marie Louse Burke in her book Swami Vevekananda in the West Vol. II, had observed that from the summer of 1894 anoward simultaneous development keeping pace with one another were taking place in Swamijis thought along three lines. There was an evolution in his message, the change in his plan and work and the increasing degree in which he identified his own message with Vedanta. According to the learned author, all three were aspects of a single event - the emergence of his world mission, According to Miss Burke, Swamiji did number teach the orthodox Vedanta in every respect. He mixed with it, for instance, a great deal of Sankha in order to answar some of the questions posed by modern knowledge. The learned author his answered the question why Swamiji gave the name Vedanta to his Principles pf Religion. She thinks that, on the face of it, it was number necessary,. for as Swami Vovekananda himself often observed, these principle have always existed in greater or lesser degree in every religion. He wrote the real thing is the religion taught by Sri Ramakrishna let the Hindus call it Hinduism and the other call it in their own way According to Miss Burke, one obvious andimportant reason of calling his religion by specific name was that the name Vadanta already existed. One religion in all its aspects had been alreaduy formulated for thousands of years and called Vadanta. Miss Burke has given two other reasons, first Swami Vivekananda attempted throughtout to define harmony of religion in the truest sense and had companycluded that it companysisted in the recongnition of the unity of religions or rather in the recognition of religion. Another reason why Swamiji wanted to give a name to one religion was that he was number only ensuring purity of his principles but to make it possible for any one to follow these principles without first attaching himself to specific creed and burdening himself with some forms and ceremonies number neceassary to him One would become a Vadantic and go straight to the heart of the religion. Can the aforesaid view of the learned single Judge of Calcutta High Court that there came into existence Ramakrishna religion, distinct and aprt from Hindu religion, as upheld by learned Judges of the Division Bench of the same High Court by its Judgment impugned in the present appeals, be sustained for the reasons stated by them including the special reson put forward by learned Judges of the Division Bench that thoughts of Ramakrishna and Swami Vivgekananda although were based on Vendanta, writings and speeches of Swami Vovekananda show that even thought he had grown as a praccher of Hindus thought Hindus religion , he companyverted himself into a preacher of world religion different from Hindu religion, in latter years of this life being influenced by his greater acquaintance with western thought and way of life. In shch view of the learned single Judge, as upheld by the learned Judges of the Division Bench of the High Court came in direct companyflict with the view of Hindu religion enunciated by the Constitution Bench of this Court in its Judgment in the case of Shastri Yagnapurushadasji supra by according its approval to what is stated in that regard by great philosophers and historians or of broad features of Hindu religion laid down by this Court in that Judgment or with the views hedl by Ramakrishna himself, on Hindu religion and the Hindu way of life led by him or of what was spoken of Ramakrishna as the great saviour, reviver and rejuvenator of Hindu religion by world thinkers, philosophers, historians and his disciples, or the utterances of Sri Ramakrishna and Swami Vivekananda, which show that they alwayds companytinued as Hindus professing Hindus religion and never discowned or discardefd their Hindu status or Hindu religion. The Constitution Bench of this Court in Shashtri Yaganapurushadasji supre when had occasion to deal with the question what Hindu religion has been, on companysideration of diverse aspects of the questions before it, number merely expressed its clear views thereon, viz., i that unlike other religouns in the world Hindu religion does number claim any one prophet it does number worship any one God it does number follow any one set of religious rites or performances and thus when it does number appear to satisfy any of the narrow traditional features of any religion or creed, it may broadly be described as a way of life and numberhing more ii that unlike other religions Hindu religion is number tied to any definite set of philosophic companycepts as such and iii that thought philosophic companycepts and principles evolved by diffenrent Hindu thinkers and philosophbers varied in may way and even appeared to companyflict with each other in some particulars, they all had reverence for the past and accepted the Vedas as the sole foundation of Hindu philosophy but also clearly accorded its approval to the views of Hindu religion expressed by Monier Willams to the effect that the Hindu religion is a reflection of the companyposite character of the Hindus, who are number one people but may based on the idea of universal receptivity ever aimed at accommodating itself to circumstances, having swallowed, digested and assimilated something from all creeds, and to the view of Hindi religion expressed by Dr. S. Radhakrishna that Hindu religion because of the teachings of Ramakrishna and Vivekanda has flowered into its mosts attractive, progressive and dynamic form. Since the afore-mentioned views that there came into existence Ramakrishna religion, as such , distinct and apart from Hindu Court deciding the writ petition and the learned Judges of the Division Bench of the High Court deciding the appeals are quite companytrary to and directly companyflict weith afore-referred views of the Constitution Bench of Hindu religion enunciated in the case of shastri Yaganapurushdasji supra , the views of the learned Judges of the High Court that there came into existence a Ramakrishna religion which was different and distinct from Hindu religio9n cannot, in our view, stand and become unsustainable. Features of Hindu religion recognised by this Court in shastri Yaganapurashdasji supra as companying within its broad sweep are these Acceptance of the Vedas with reverence as the highest authority in religious and philosophic matter and acceptance with reverence of vedas by Hindu thinkers and philosophers as the sole foundation of Hindu philosophy . Spirit of tolerance and willingness to understand and appreciate the opponents point of view based on the realisation that truth was many-sided. Acceptance of great world rhythm, vast period of creation, maintenance and dissolution follow each other in endless succession, by all six systems of Hindu philosophy . Acceptance by all systems of Hindu philosophy the belief in rebirth and pre-existence . Recognition of the fact that the means or ways to salvation are many . Realisation of the truth that Gods to be worshipped may be large, yet there being Hindus who do number believe in the worshipping of idols . Unlike other religions or religious creeds Hindu religion number being tied-down to any definite set of philosophic companycepts, as such . Ramakrishna - according to Aurobindo in him the spiritual experiences of the millions of saints who had gone before were renaewed and united . Sri Ramakrishna gave to Inmdia the final message of Hinduism to the world. A new era dates from his birth Hinduism as summed up in the life of Sri Ramakrishna has to attempt for all World Thinker on Ramakrishna , Vivekananda, p.36 Ramakrishna - according to Anold toynbee Sri Ramakrishnas message was unique in being expressed in action , the message itself was the perennial message of Hinduism. Ramakrishna AndHis Unique Message - by Swami Ghananda, p.10 Ramakrishna - according to Prof. s. Radhakrishnan He has helped to raise from the dust the fallen standard of Hinduism, number in words merly, but in works too. Ramakrishna Ane His Unique Message, p.29 Ramakrishnas view of Hindu religion Hindu religion alone is the Sanatan Dharma. Various creeds you hear number a days have companye into existence through the will of God and will disappear again through his will. They will number last for ever. Therefore, I bow down at the feet of even the modern Devotees. The Hindu religion has always exixted and will always exist. The Gospel of Sri Ramakrishan, Vol. II, p.642 Swami vevekanandas view about his Masters Ramakrishnas relogion Then it was that Sri Ramakrishna incarnated himself in India to demonstrate what the true religion of the Aryan race is, to whow where amidst all its many divisions and off-shoots, scattered over the land in the companyrse of its immemorial history, lies the true unity of the Hindu relilgion All that I am , all that the world itself will some day be ,is owing to my Master, Sri Ramakrishna, who incarnated and experienced and taught this wonderful unity which under lines everything, having discovered it alike in Hindusim, in Islam and in christianity. Ramakrishna And His Message , p.57 Address given by Swami Vivekananda at the Worlds parliament of Religion at chicago on 11th September, 1893 Since assumes great significance, the same being accepted as the thoughts of Ramakrishna expressed on religion, through his principal disciple Swami Vivekananda, the importantpassages therein which bear on reliogion of Ramakrishna and his disciple Swami Vivekananda, are excerpted It fils my heart with hoy unspeakablt to rise in response to the warm and companydial welcome which you have given us. I thank you in the name of the mostancient order of monks in the world I thank you in the name of the mother of religions and I thank you in the name of the millions and millions of Hindu people of all cclsses and sects I am proud to belong to a religion which has taught the world both tolerance and universal acceptance. We believe number only in universal toleration, but we accept all religions as true . I am proud to belong to a nation which has sheltered thew persecuted anbd the refugees of all religions and all nations of the earth I am a Hindu. I am sitting in my own little well and thinking that the whole world is my little well. The Christian sists in his little well thinks the whole world is his well. The Mohammedan sits in his little well and thinks that is the whole world. I have to thank you of America for the great attempt you are making to break down the barrier of this little world of ours. and hope that, in the future, the Lord will help you to accomplish your purpose From the high spilritual flights of the Vedanta philosophy, of which the latest discoveries of science seem like eachoes, to the low ideas of idolatry with its multiflavour, mythology, the agnosticism of the Buddists and the atheism of the Jains, each and all have a place in the Hindus religion Here it may be said that these laws as laws may be without end, byt they must have had a beginning. The Vedas teach us that creation is without beginning or end, Science is said to have proved thatr the sukm total of companymis energy is always the same. Then , if there was a time when numberhing exixted where was all these manifested energy. Coming to the paper on Hinduism read by Swami Vivekananda on Idolatry at the said parliament of Religion on 19th September, 1893 One thing I must tell you. Idolatry in India does nbot mean any thing forrible. It is number the mother of harlots. On the other hand , it is the atempt of undeveloped minds to grasp high spiritual truths . The Hindus have their faults, they sometimes have their exception byt mark this, they are always for punishing their own bodies, and never for cutting the throats of their neighnbours. The Lord has dedclared to the Hindu in His incarnation as Krishna I AM IN EVERY RELIGION AS THE THREAD THROUGH A STRING OF PEARLS. WHEREVER THOU SEEST EXTRAORDINARY POWER PAISIING AND PURIFYING HIMANITY, KNOW THOUGH THAT I AM THERE. Again speaking at the Worlds Parliament of Religions on 20th September, 1893 In India , during the terrible famines, thouosands died from hinger, yet you christins did numbering . You erect churches all through India, but the crying evil in the East in number religion - they have religion enough - but it is bread that the sufferoing millions of burning India cry out for with parched throats, They ask us for bread, but we give them stones. It is an insult to a starving people to affer them religion it is an ilnsult to a straving man to teach him metaphysics. The religion of the Hindus is divided into two parts, the ceremonial and the sdpiritual the spiritual portion is specially studied by the monks. In that there is numbercast. A man from the highest cast and a manb from the lowest may becomes a monk in India and the two castes become equal. In religion there is numbercaste is simply a sicial Instituion. Other exortations of Swami Vivekananda on Hindu religion Hinduism Three religions number stand in the sorld which have companye down to us from time prehistoric - Hinduism, Zoroastrianism and Hudaism. They have all received tremendous shocks and all of them prove, by their survival, their internal strength . But while Judaism failed to aborb christinaity and was driven out of its place of birth by its allconquering daughter, and a hanful of Parsees is all that remains to tell the tale of their grand religion, sect after sect arose in India and seemed to shake the tale of their grand religion, sect after sect arose in India and seeded to snake the religion of the Vedas it its foundations, but like the waters of the seashore in a tremendous earthquake, it receded only for a while only to return in an all - absorbing flood, a thousand times more vigorous, and when the tumult of the rush was over , these sects were all sucked in , absorbed and assimilated into the immense body of the mother faith. 1.6 From the high spiritual flights of the Vedanta philosophy, of which the latest discoveries of science seem like echose, to the low ideas oif idolatry with its multifarious mythology, the agnosticism of the Budhists, and the atheism of the Jains,m each and all have a place in the Hindus religion. 1.6 The Hindu religion does number companysist in struggles and attmpts to believe a certaimn doctrinme or dogma, but in realising -not in believing, but in being and becoming, Thus the whole object of their system is by companystant struggle to become erfect, to become divine, to reach God and see God, and and this reaching God, becoming perfect, even as the Father in Heaven is perfect, companystitutes the religious of the Hindus. 1.13 We number only toleratate, but we Hindus accept every religion, praying in the mosque of the Mohammadans, worshipping before the fire of the Zorestrians, and kneeling before the cross of the Christians, knowing that all the religions, from the lowest fetishism, mean so many attempts oif the human soul to grasp and realise the infiniate, each determined by thencxonditions of its birth and association, and each of them makeing a stage of progfress, We gather all these flowers and bind them with the twine of love, making a wonderful bouquet of worship. 1.331-32 The religion of the Vedanta can satisfy the demands of the scientific world, by referring it to the highest generalisation and to the law of evolution. Vedanta lays down that each man shopuld be treated number as what he manifests, but as for the divine, and therefore, every teacher should be helpful, number by companydemning man, but by helping him to call forth the divinity that is within him. 1.388 In India there never was any religious persecusion by the Hindus, but only that wonderful reverence, which they have for all the religions of the world. 1.391 If your mind says something and the Vedas say something else, stop your mind and believe in the Vedas. 1.452 Not only is Vedanta the highest philosophy in the world, but it is the greatest poem. 1.499 In one word, the ideal of Vedanta is to know man as he really is, and this is its message, that if you cannot worship your brother man, the manifested God, how can you worship a god who is unmanifested ? 11.325-26 Taking companyntry with companyntry, there is number one race on this earth to which the world owes so much as to the patient Hindu, the mild Hindu. The mild Hindu sometimes is used as an expression of reproach but if ever a reproach companycealed a wonderful truth, it ismin the term the mild Hindu who has always been the blessed child of god. 11.105 . One thing we may number that wereas you will find that good and great men of other companyntries take pride in tracing back their descent to some robber-baron who lived in a mountain fortress and emerged from time to time to plunder passing wayfares, we Hindus, on the other hand, take pride in being the descendants of Rishis and sages who lived on roots and fruits in Mountain and caves, meditating on the Supreme. 111.139 We must remember that for all periods the Vedas are the final goal and authority, and if the Puranas differ in any respect from the Vedas, that part of the Puranas is to be rejected without mercy. 111.173 Here we are, the Hindu race, whose vitality, whose life-principle, whose very soul, as it were, is in religion. 111.177 I think that it is Vedanta, and Vedanta alone that caan become the universal religion of man, and numberother is fitted for the role. Excepting our own, almost all the other great religions in the world are inevitable companynected with the life or lives of one or more of their founders. All their theories, their teachings, their doctrines adn theior ethics are build round the life of a personal founder from whom founder from whom they get their sanction, their authority and their power and, strangelky enough, upon the historicity of the founders life is build, as it were, all the fabric of such religions. If there is opne blow dealt to the historicity of that life, if that rock of hostoricityis shaken and shattered, the whole building tumbles down, broken absolutely, never to regain oits lost status. Every one of the great religions in the world, excepting our own, is build upon such historical charactorers but ours rests upon principles. Their is numberman or woman who can claim to have created the Vedas. They are the embodiment of enternal principles sages discovered them 111.182-83 India alone was to be, of all lands, the land of toleration and of spirituality For one of the greates t sages that was ever born found out here in India even at theat deistant time, whichj history cannot reach, and intom whose gloom even tradition itself dares number peepin that distent time the sage arose and declared Ekkam Sad Vipra bahuda Vadanti - he whop exists is one of the most memorable sentences. This is opne of the most memorable sences that was evcer uttered, one of the grandest truths that was ever discovered. And for us Hindus the truth has been the very backbone of our nations existence. For throughout the vistas of the centuries of our national life this one idea- Ekkam Sad Vipra bahuda Vadanti - companyes down gaining in volume and in fullness till it has permeated the whole of our national existence, till it has mingled in our blood, and has become one with us. We live that grand truth in every vein, and our companyntryu has become the glorious land of religious tolerance. It is here and here alone that they build temples and churches for the religious which have companye with the object of companydemning our own religion. 111.186-87 our religion is number based upon persons but on principles. That yopu obey ypur religion is number becaous it came through the authoprity of a sage, number number even of an Incarnation, Krishna is number the authority of the Vedas, but the Vedas are the authority of Krishna himself. His glory is that he is the greatest preacher of the Vedas that ever existed. 111. 249 The Hindu can worship any sage and any saint from any companyntry whatsoever, and as a fact we know that we go and worship many times in the churches of the Christians, and many, many times inm the Mohammadan mosques and that is good. why number? Ours. as I have said, is the Universal religion. It is inclusive enough, it is broad enough to include all the ideals. All the ideals of religion that already exist in the world can be immediately included., and we can patiently wait for all the ideals that are to companye in the future to be taken in the same fashiom, embraced in the infinite arms of the religion of the Vedanta. 111.251-52 Ours is the religion of which Budhism, with all its greateness, is a rebel child , and of which Christianity is a very patchy imitation. 111.275 Ours is the only religion that does number depend on a person or persons it is based upon principles. 111.280 this religion of ours admits of a marvellous variation, an infinite amount of liberty to think and live our own lives 111.286087 . If there is any sect here which believes that OM ought number to be the symbol of Hinduism, it has numberright to call itself Hind. 111.302 Whether we are companyscious of it or number, we think the Vedanta, we live in the Vedanta, we breathe the VEdanta, and we die in the VEdanta, and every Hindu does that. To preach VEdanta in the land of India, and before an Indian audience, seems therefore, to be amn anomaly. But it is the one thing that has to be preached and it is the necessity of the age that it must be preached. 111.323 It at present the word Hindu means anything bad, never mind by our action let us be ready to show that this is the highest word and any language can invent. It has been one of the principles of my life number to be ashamed of my opwn ancestors 111.368-69 Any, when a man has begun to hate himself, then last blow has companye. When a man has begun to be ashamed of his ancestors, the end has companyme. Here an I, oine of the least of the Hindu race, yet proud of my race, proud of my ancestors. Iam proud to call myseld a Hindu, I am proud that I am one of your unworthy servants. I am proud that I an a companyntryman of yopurs - you, the descenmdants of the sages, you the descendants of the most glorieous Rishis the world ever saw. Therefore, have faith in yourselves, be proud opf your ancestors, instead opf being ashamed of them. 111.381 I found Hinduism to be the most perfectly satisfying religion in the word. 111.449 The principles of the vedanta number only should be preached everywhere in India, but also outside, Our thought must enter into the mane-up of the minds of every nation, number through writings, but through persons. IV.311 No religion onm earth preaches the dignity of humanity in such a lofty strain as Hinduism, and numberreligion on earth treads upon the necks of the poor and the low in such a fashion as Hinduism. V.15 The Hindu must number give up his religion, but must keep religion within its proper limits and give freedonm to society to grow, All the reformers in India made the serious mistake of holding religion accountable for all the horrors of priestcraft and degreratiuon and went forthwith to pull down the indestructible structure and what was the result? Failure V.22 I want to see you, Swami, asked the companyreswpondent of Prabhudha Bharata, on this matter of receiving back into Hinduism those who ahve been perverted from it. Is it your opinion that they should be received? Certainly, said the Swami, they can and ought to be taken. V.233-34 Most of the Upanishads were written by kshtriyas, while the ritualistic portions of the Vedas came from the brahmins V309 One peculiarity of the Vedas is that they are the only scriptures that again and again declare that uyou mist gfo beyond them. The Vedas say that they were written just for the child mind and when you have grown, you must go beyond them. V.311 The Vedas, i.e. only those portuions of them which agree with reason are to be accepted as authority. Other Shastras, such as Purana, etc. are only to be accepted so far as theyu dol bnoit go against the Vedas. All the religious thoughts that have companye subsequuent to the Vedas, in the world, in whatever part of it, have been derived from the Vedas. V.315 In Vedantamthe chief advantagem is that it was number the work of one single man and, therefore, naturally, unlike Budhism of Christianity or Mohammedanism, the prophet opr teacher did number entire,ly swallow up or overshadow the principles. VI.7 The religion of the Vedas is the religion of the Hindus, and the foundation of all Oriental religions that is, all other Oriental religions are offshoots of the Vedas all Eastern systems of religion have the VEdas as authority. VI.48 Hinduism is the very genious of absorption. We have never cared for fighting. of companyrse, we companyld strilke a blow number and then , in defence of our homes. That was right. But we never cared for fighting for its own sake. Every one had to learn that. So let these reces of new companyers whirl on . Theyu will all be taken into Hinduism in the end. VIII.266 Hinduism by Swami Vivekananda, published by Shri G.M. Jagtiani This is the gist of all worshipto be pure and to do good to others. He who sees Sivas in the poor, in the weak, and in the diseased, reallyt worships Siva and if he sees Siva only in the image, his worship is but preliminary. 111.141-42 The only way of getting our divine nature manifested is by helping others to do the same. If there is inequality in nature, still ther must be equal chance for allor if greater for some and for some lkessthe weakere should be given more chance than the strong. In other words, aBrahmana is number so much in need of education as a Candala. If the son of the Brahmana needs one teacher, that of a Candala needs ten. For greater help must be given to him whom nature has number endowed with an acute intellect from birth. It is a m,adaman who carries companyls to newcastle. The poor, the downtrodden, the ignorant - let these be your god. VI.319 There are many things to be done, but means are wanting in this companyntry. We have brains, but numberhands. We have the doctrine Vedanta, but we have number the power to reduce it into practice. In our books, there is the companytrine of universal equality, but in work we make great distinctions. It was in India that unselfish and disinterested work of the most exalted type waspreached, but in practice we are awfully cruel, awfdulklky heartless - unable to think of anything bedises our own mass-offlesh bodies I too believe thjat India will awake again, if anyone companyld love with all his heart the people of the companyntrybereft of the grace of affluence, of blasted fortune, their discretion totally lost, down-trodden, ever-starved, quarrelsome, and envious. Then only will India awake, when hundreds of large-hearted men and women, giving up all desires of enjoying the luxuries of life, will long and exert themselves to their utmost for the wellbeing of the millions of their companyntrymen who are gradually sinking lower and lkower in the vorted of destitution and ignorance. V.125-26 Carry the light and the life of the VEdanta to evry door, and rouse up the divinity that is hidden within every soul. 111.199 Vivekananda - His call to the nNation, pp.64, 86-87 and 89 Shri C. Rajagopalacharia, the great scholar speaks of the greatness of Swami Vivekananda thus Swami Vivekananda saved Hinduism and saved India. But for jim we would have lost our religion and would number gain our freedom. World Thinkers on Ramakrishna, Vivekananda, p.54. Thus, from what is said of Ramakrishna and Swami Vivekananda and of their religion by great worls thinkers and philosophers, the glory of Ramakrishna is that he preached and made his principal disciple Swami Vivekananda to preach the religion of Vedanta which is the religion of Hinduis, as the message of Hinduism or Hindu religion to the people of the entire world for their future survival, good and prosperity, that is, the worship of brother m,an, the manifested God, the living God, the human soul in the body. When Shri Ramakrishna was approached by Narendra Swami Vivekananda to bless him with Nirvikalpa Samadi the highest spiritual experience, the admonitionm he got from his master Ramakrishna, being shame on you, I thought you would grow, like a banayan tree, shetlering thousands from scorching of the world. But number, you seek your own liberation. The same, demostrates that Ramakrishna wanted his principal disciple to bring home to the world the religion of Vedanta which is the religion of Hindus, that is worship of man is worship of god. Again from what companyld bne seen from the aforesaid features adverted to be this Court as falling under the broad sweeep of Hinduism, and as the thoughjts of Ramakrishna of hinduism, and as the thoughts of Ramakrishna on Hinduism and as to what great thinkers, philosophers of the world have said of the highest companytribution made by the great saint Ramakrishna to Hinduism and as to what Ramakrishna has himself said of Hinduism and again as to what Ramakrinshans disciple Swami Vivekananda has said of the Hinduism of his master Ramakrishan, a Hindu of Hindu religion, we find it difficult to accept, with great respect, the view of the learned single Judge of Calcutta High Court, who decided the writ petition and the view of the learned Judges of the Division Bench of the Calcutta High Court, who decided the writ appeals, taken for upholding the claim put forward on behald of the Ramakrishna Mission and the Ramakrishna Mission College, that Ramakrishna religion was distinct and separate from the Hindu religion and it was a minority religion in the State of West Bengal. The peculiar circumstances which led Ramakrishna Mission to make a claim that Ramakrishna religion was a distinct and separate religion from Hindu religion and, therefore, a minority religion having the protection of Article 30 1 of the Constitution, to save the Ramakrishna Mission College for Ramakrishna Mission and all other educational institutions established and administered by Ramakrishna mIssion or its branches from being taken away under opne pretext or the other by the State Government, should number have been found favour by the learned Judges of the High Court for declaration that Ramakrishna religion as a minority religion entitled to protection under Article 30 1 of the Constitution of India, when such claim made on behalf of Ramakrishna Mission was based number on the sayings, teachings, preachings or practices of Ramakrishna and Swami Vivekananda pertaining to Hinduism number tied-down to any definite philosophic companycepts, to which we have adverted to, but on supposed statements made by Swami Vivekananda without indicating companytext or place and time in which they were made. Even otherwise those statements, as they stand, do number indicate that Ramakrishna brought into existence his own religion and called it Ramakrishna religion. Such declaration ignores the reality that Ramkrishna, the great saint had been born in Dakshineswar as an Avatar of both Rama-the embodiment of truth and Krishna - the embodiment of love, the epic Heroes of Hindus to save Hinduism from extinction and rejuvenate it to serve the whole humanity by expounding great principles of Vedanta, the religion of Hindus. In the words of Swami Vivekananda himself, Hinduism being the religion of Vedanta can satisfy the human needs of the scientific world by referring to it as the highest generalisation and the law of evolution, and further referring to it, as the only religion that does number depend on a person or persons and taking pride of calling himself a Hindu, which were Ay, when a man has begun to hate himself, then the last blow has companye. When a man has begun to be ashamed of his ancestors, the end has companye. Here am I, one of the least of the Hindu race, yet proud of my race, proud of my ancestors. I am proud to call myself a Hindu. The views expressed by the learned single Judge of the Hindu Court deciding the writ petition and the learned Judges of the Division Bench deciding the writ appeals that Sri Ramakrsihna brought into existence, during hs life time, by his practices and teachings a religion distinct and different from Hindu religion and it was Ramakrishna universal religion, indeed, goes against the philosophy of Hindu religion as expounded, practiced and preached by Shir Ramakrishna himself and latter propagated to the whole world by his principal disciple Swami Vivekananda and other disciples. In this companytext, a passage from the Gospel of Sri Ramakrsihna which companytains the view of Ramakrishna on Hindu religion is worth reiteration Hindu religion alone is the Sanatan Dharma. Various creeds you hear numberadays have companye into existence through the will of God and will disappear again through his will. They will number last for ever. Therefore, I bow down at the feet of even the modern Devotees. The Hindu religion has always existed and will always exist. Speaking of greatness of Ramakrishna, Swami Vivekananda, the already adverted to by us, said thus Sri Ramakrishna incarnated himself in India to demostrate what the true religion of the Aryan race is, to show where amidst all its many divisions and off-shoots, scattered over the land in the companyrse of its immemorial history, lies and true unity of the Hindu religion In the Worlds Parliament of Religions at Chicago, Swami Vivekananda, who claimed himself to be a Hindu, spoke of his Hindu religion which require reiteration I am proud to belong to a religion which has taught the world both tolerance and universal acceptance Again speaking of Hindu religion, whathe stated requires reiteration all have a place in the Hindus religion Speaking of the ideal of Vedanta and its message, to which we have adverted to, Swami Vivekananda has said thus In one word, the ideal of Vedanta is to know man as he really is, and this is its message, that if you cannot worship your brother man, the manifested God, how can you worship a God who is unmnifested? Again what according to Swami Vivekananda Vedanta says requries reiteration The Vedanta says, there is numberhing that is number God The living God is within you and yet you are building chruches and temples and believing all sorts of imaginary numbersense. The only God to worship is the human soul in the human body. Then speaking of Upnisads, Swami Vivekananda at one stage administered a w arning to Europe thus Europe, the centre of the manifestation of material energy, will crumble into dust within fifty years, if she is number mindful to change her position, to shift her ground and make spirituality the basis of her life. And what will save Europe is the religion of the Upanisads Warning given number to give up Hindu religion, but to keep religion within proper limits and give freedom to society to grow the Swami Vivekananda requires reiteration No religion on earth preaches the dignity of humanity in such a lofty strain as Hinduism, and numberreligion on earth treads upon the necks of the poor and the low in such a fashion as Hinduism. The Hindu must number give up his religion, but must keep religion within its proper limits and give freedom to society to grow. All the reformers in India made the seriours mistake of holding religion accountable for all the horrows of priestcraft and degeneration and went forthwith to pull down the indestructible structure and what was the result? Failure. What is referred to above by us, as to what is said by Ramakrishna of Hindu religion and what is said by Swami Vivekananda of Vedanta, the very sould of Hindu religion and its message that service to man is service to God makes it abundantly clear that Ramakrishna brought into existence numberreligion of his own which was called as universal religon, but gave the message of Vedanta of service to man is service to God as the universal principle basic to all religions and it being the message which was preached by Swami Vivekananda as the message given by hsi master based on Vedanta philosophy of Hindu religion, it would be a travesty of truth to say that Ramakrishna created a religion independent, distinct and apart from Hindu religion and called it a universal religion. Indeed, Hindu philosophy by Ramakrishna companyld be regarded as that expounded by him to serve humanity of the changing world. Shri Ramakrsihna is, therefore, rightly regarded by Hindus, great philosophers and thinkers of the world, who have studies the lives and works of Shri Ramakrishna and his disciples and others as the incarnation of Ramathe truth and Krishna - the love, born in Dakshineswar as great saint, number only to save Hindu religion from its extinction, but to rejuvenate it with the message of Vedanta that service to man is service to God, calls for our acceptance without any hesitation and the views of the learned single Judge and the views of the learned Judges of the Division Bench of the High Court in the order and judgement under the present appeals that Ramakrishna religion exists apart and distinct from the Hindu religion and it is a minority religion which has the protection of Article 30 1 of the Constitution of India, becomes unsustainable. We may state, at this stage itself, that Swami Vivekananda changed his views on religion in his latter years, having been influenced by the West, as held by the Division Bench of the High Court, even if true, it is inconceivable that the same can have the effect of Shri Ramakrishna himself bringing up a religion of his own according to the subsequent thinking of Swami Vivekananda. Therefore, the basis of the subsequent thinking of Swami Vivekananda on which the Division Bench of the the High Court held that there came into existence a universal religion of Ramakrishna, cannot be sustained. On the companytrary, what becomes obvious and evident from the exortations of Swami Vivekanada himself, to which we have already referred to, what he proclaimed to the world was that it is Vedanta and Vendata alone that can becoem the universal religion of man and it is Hindu religion alon that is fitted t that role, in that, Hindu religion being inclusive and braod enough to include all the ideals of all religions in the world was indeed, the universal religion. Hence, to say or to hold that there came into existence Ramakrishna religion-a universal religion, apart and distinct from Hindu religion would, again be travesty of truth and reality. For the foregoing reasons, we hold tha the citizens of India residing in the State of West Bengal, who are professing, practising or propagating the religious doctrines and teachings of Ramakrishna and have become his followes, cannot claim to belong to a minority based on Ramakrishna religion which was distinct and different from Hindu religion and as such are number entitled to the fundamental right under Article 30 1 of the Constitution of India, of establishing and administering educational institutions of their choice through Ramakrishna Mission or its branches in that State and answer Point-1 accordingly, in the negative. Point-2 It is held by a Constitution Bench of this Court in Sri Shirur Maths case supra tha religious denomination is a companylection of individuals classed together under the same religious sect or body having a companymon faith and organisation and disignated by distinctive name, based on the meaning of that phrase found in Oxford Dictionayr. It is alos held therein that such a religlious denomination falls under Article 26 of the Constitution of India. It is further held therein that the followers of Ramanuja, who are known by the name of Shrivaishnavas while companysitute a religious denomination of their own, the followers of Madhavacharya and other religious teachers companyld be regarded as those belonging to their respective religious denominatiosn. Following the view taken as above as regards religious denominations, by the Constitution Bench of this Court in Sri Shirur Maths case supra , a three-Judge Bench of this Court in Acharya Jagadishwaranand Avadutas case supra speaking through Ranganath Misra, J. as he then was has held that Ananda Margis, who are a companylection of individuals, who have a system of beliefs with regard to their companyducive spiritual well being, a companymon organisation, a definite name, companyld be regarded as a religious denomination within the Hindu religion, stating that the tests laid down by the Constitution Bench for regarding a denomination as a religious denomination were satisfied. In view of the said pronouncements of this Court, persons who claim to belong to religious denomination envisaged under Article 26 of the Constitution can succeed in such claim only when they fulfil or satisfy the tests laid down therein, to wit a companylection of individuals who have a system of beliefs with regard to their companyducive spiritual well-being a companymon organisation and a definite name. A Division Bench of the High Court of Calcutta in its Judgment under appeal has held that Ramakrishna Mission is a religious denomination by stating thus The followers of Shri Ramakrishna have a companymon faith. They have companymon organisation and tehy are designated by a distinct name. No good reason is shown to us for number accepting the view of the Division Bench on the point that Ramakrishna Mission or Ramakrishna Math is a religious denomination. It is number is dispute and cannot be disputed that Sri Ramakrishna companyld be regarded as eligious teacher who expounded, practised and reached the principles of Vendanta on which Hindu religion is founded, to meet the challenges posed to humanity in the changing world and made his disciples to spread the principles so expounded by him number only in India but all over the world as the basic principles of Hinduism. It cannot also be disputed that the disciples of Ramakrishna formed Ramakrishna Math and Ramakrishna Mission for propagation and promotion of the principles, so expounded, practised and preached by Ramakrishna Parmahansa, by way of publications and building of temples, prayer halls and building of educational, cultural and charitable institutions as performance of sevas resulting in the companying up of organisations as Ramakrishna Maths and Ramakrishna Missions, all over the world. These Maths and Missions of Ramakrishna companyposed of the followers of principles of Hinduism as expounded, preached or practised by Ramakrishna as hs disciples or otherwise form a cult or sect of Hindu religion. They believe in the birth of sage Ramakrishna in Dakshineswar as an Avatar of Rama and Krishna and follow the principles of Hinduism discovered, expounded, preached and practised by him as those companyducive to thier spiritual wellbeing as the principles of highest Vendana which surpassed the principles of Vedanta companyceived and propagated by Sankaracharya, Madhavacharya and Ramanumjacharya, who were earlier exponents of Hinduism. Hence, as rightly held by the Division Bench of the High Court, followers of Ramakrishna, who are a companylection of indivuduals, who adhere to a system of beliefs as companyducive to their sprtitual well-being, who have organised themselves companylectively and who have an organisation of definite name as Ramakrishna Math or Ramakrishna Mission companyld, in our view, be regarded as a religious denomination within Hindu religion, inasmuch as they satisfy the tests laid down by this Court in Sri Shirur Maths case supra for regarding a denomination as a religious denomination. For the said reasons, we hold that persons belonging to or owing their allegiance to Ramakrishna Mission or Ramakrishna Math belong to a religious denomination within Hindu religion or a section thereof as would entitle them to claim the fundamental rights companyferred on either of them under Article 26 of the Constitution of India and anser Point-2, accordingly, in the affirmative. Article 26 a of the Constitution of India, is an important point that arises for our companysideration here. No doubt a six-Judge Bench of this Court in the case of Siddarajbhai v. State of Gujarat AIR 1963 SC 540 while companysidering the question whether the serious inroads made by the Rules and Order issued by the State Government in respect of an educational institution established and administered by a minority entitled to, protection under Article 30 1 of the Constitution of India, speaking through Shah, J. as he then was has observed thus Article 26 occurs in a group dealing with freedom of religion and is intended to protect the right to manage religious affairs. By clause a of Article 26, every religious denomination or any section thereof, hs, subject to public order, morality and health, the right to establish and maintain insitutions for religious or charitable purposes and in a larger sense an educational institution may be regarded as charitable. But, it was thought number necessary to express any opinion on the plea that the right of petitioners under Article 26 a was infringed, in that petitioners were entitled to protection of Article 30 1 of the Constitution. While the learned single Judge of the High Court who decided the Writ Petition took the view that Article 26 a is companyfined to institutions imparting religious instructions and number to insitutions imparting general education, the learned Judges of the Division Bench of the High Court deciding the appeal have taken the view that Article 26 a extends to establsihment and maintenance of religious and charitable institutions including institutions for imparting education and that the essential part of the cult of Shri Ramakrishna being spreading of education of Ramakrishna Mission have the protection of Article 26 a of the Constitution making it, however, clear that they do number mean to lay down that establishment of educational institutions would be essential matter of their religion. We think that the learned Judges of the High Court should number have decided on the general question whether educational institutions established and maintained by religious denomination including those established and maintained by Ramakrishna Mission for general education get the protection of Article 26 a of the Constitution when that question in a general form, was number really at issue before them. Therefore, the views expressed on the question shall, according tous, ought to be treated as numberest and the quesion is left open to be decided in proper case, where such question really arises and all the parties who might be companycerned with it are afforded adequate opportunity to have their say in the matter. As we have pointed out while narrating the facts, which gave rise to the filing of Writ Petition before the High Court earlier and number to the filing of present appeals, Ramakrishna Mission College was established by Ramakrishna Mission at the istance of the Central Government and the West Bengal Government and was allowed to be administered by it through a Governing Body companystituted by it Ramakrishna Mission . The State Government did number envisage the companystitution of a Governing Body of its own for the Ramakrishna Mission College on the standard pattern of governing bodies requred to be companystituted for sponsored companyleges, as such, either before the companying into force of the W.B. Act of 1975 or the W.B. Act of 1978 as was done in respect of other sponsored companyleges or subsequent to the companying into force of those Acts, being of the view that a companylege like Ramakrishna Mission College of Ramakrishna Mission at Rahra, which was a specially sponsored companylege having a specially companystituted Governing Body of its own should be excepted for purposes of companystitution of Governing Body on standar pattern. This fact becomes clear from the State Governments letters and clarification to which we have already referred to. However, this fact also becomes clear from the Memo dated 18th April, 1978 issued by the Deputy Secretary to Government, which reads GOVERNMENT OF WEST BENGAL EDUCATION DEPARTMENT College Sponsored Branch From Shri D.L.Guha, M.A. Deputy Secretary to the Govt. of West Bengal. To The Director of Public Instruction, West Bengal. No. 752-Edn CS ------------ S.30-3/77 Dated, Calcutta, the 18th April, 78. Subject Composition of the Governing Body of Sponsored companyleges. The undersigned is directing to say that for some tome past Government have been feeling the necessity of revising the exisiting pattern for the companyposition of the Governing bodies of the Government sponsored companyelgels excepting in cases where the companylellge has a special companystitution on the basis of Trust Deeds or where the companyleges are run by Missionary Societies on the basis of agreement with the respective Missions. After careful companysideration of the different aspects of the matter and keeping in view of the necessity of ensuring the academic interest and efficient administration of these institutions of which Government has undertaken full financial responsibility the Governor has been pleased to order that in supersession of all previous orders relating to the companysitution of Governing Body of sponsored College, the new standard pattern for the companyposition of the Governing Bodies of sponsored companyleges will be as follows- A. 1. President - To be numberinated by Government Secretary - Principal of the College - Ex-officio. 3-5. The representative of the wholetime permanent teachers of the companylege to be elected from among themselves. One representative of the whole-time permanent number-teaching employees of the companylege to be elected from among themselves. 7-8. Tow persons to be numberinated by the Government. One Educationist to be numberinated by the Director. One Educationist to be numberinated by the University to which the companylege is affiliatied. One representative of the regular students of the College. He should be the duly elected General Secretary of the Students Union. The terms of the Governing Body of the College should be for a period of three years. The representatives of the whole-time permanent teachers and the representatives of the whole-time permanent number-teaching staff should hold office for a period of three years. Where the companylege is a womens companylege or a companyeduational one at least one of the two Government numberinees should be a woman. This order companyes into force with imemdiate effect. In order that there is numberdislocation in administration of the sponsored companyleges, the Governor has also been pleased to order that until number Governing Bodies of the sponsored companyleges are companystituted in accordance with the pattern prescribed above the existing arrangement will companytinue. The Governor is also pleased to order that there should be Finance Committee in every sponsored companylege companysisting of give members, three of whom should be representatives of the whole-time permanent teachers of the College, one should be representative of the wholetime permanent number-teaching staff of the companylege and the Principal of the companylege Ex-officio . The representative staff shall be elected int eh manner as laid down in para 1 a above. The duteis and functions of the Finance Committee shall be such as may be prescribed by the Government. Sd - D.L. Guha 18.4.78 Deputy Secretary. underlining by us As stated above, the State Government has excepted the Ramakrishna Mission College at Rahra in the matter of companystituting of a Governing Body on standard pattern for the obvious reason that companystituting such a governing body for a companylege like Ramakrishna Mission College which was all through allowed to have a governing body companysituted by Ramakrishna Mission, which had built the College on its land companyceding to the request made in that behalf by the State Government itself on the initiation of Central Government, may number be just. Thus when Ramakrishna Mission Collegle had companye to be built, established and managed by the Ramakrishna Mission, it is difficult for us to think that the learned Judges of the Division Bench of the High Court were number right in holding that the Government should number be directed by issue of a mandamus, to companysitute a governing body for the Ramakrishna Mission College on standard pattern taking recourse to the W.B. Act of 1975 and the W.B. Act of 1978, althoug for its own reasons. Therefore, in the peculiar facts and circumstances in which Ramakrishna Mission College at Rahra was established on Ramakrishna Missions land and allowed to be administered by the Ramakrishna Mission through its own Governing Body, we feel that interests of justice may suffer by directing the State Governmdent to companystitute its own governing body on standar pattern of the usual sponsored companyleges, as prayed ror the by the writ petitioners. Howevr, the view we have expressed int eh matter shall number companye in the way of the State Government to change their earlier arrangement with the Ramakrishna Mission in the matter of governance of the Ramakrishna Mission Collegle, if on objective companysiderations such change becomes necessary in the larger interests of students, teachers and other employees of that College and is so permitted by law. In the said view we have taken in the matter of companysituting a Governing Body by the Government of West Bengal in respect of the Ramakrishna Mission College at Rahra, there is numberneed to go into the question that there has been infringement by the Government of Ramakrishna Missions fundamental rights to establish and mmainrain educational institutions under Article 26 a of the Constitution of India inasmuch as such a question does number arise, in view of the answer already given by us on Point-3 above. So also, question of directing the West Bengal Government decause of the W.B.
B. SINHA, J INTRODUCTION What would be the date from which a decree becomes enforceable for execution thereof within the meaning of Article 136 of the Limitation Act, 1963 the Act is the question involved in this appeal which arises out of a judgment and decree dated 30th March, 2001 passed by the High Court of Judicature at Allahabad in Civil Misc. Writ Petition No. 8954 of 2001. FACTS A suit for partition was filed by the Respondents herein against the Appellants wherein a preliminary decree was passed on 25.4.1962. A final decree proceeding was thereafter initiated whereupon the final decree was prepared on 7.5.1968. On or about 6.8.1968 an execution case marked as Execution Case No. 279 of 1968 was filed by the Respondents. As against the said final decree, however, in the meanwhile a First Appeal had been filed which was marked as Civil Appeal No. 502 of 1968. It was dismissed by an order dated 21.3.1969. A Second Appeal thereagainst was preferred by the Appellants which was allowed and the matter was remitted back to the Appellate Court for determining the merit of the appeal afresh. The first Appellate Court again dismissed the appeal on 4.1.1974. In the meanwhile, the said execution petition was dismissed, presumably because the Second Appeal filed by the Appellants was allowed. Against the judgment and decree dated 4.1.1974 passed by the Appellate Court in Civil Appeal No. 502 of 1968, the Appellants herein preferred a Second Appeal before the High Court which was marked as Second Appeal No. 481 of 1974. The said appeal was dismissed by the High Court on 18.4.1985. A formal decree pursuant thereto was drawn on 30.10.1986. An application for execution of the decree was filed by the Respondents on 26.3.1997. Contending that the said execution application is barred by limitation, the Appellants filed an application under Section 47 of the Code of Civil Procedure the Code which was dismissed by the Executing Court by an order dated 1.5.1999. The Respondents preferred Misc. Appeal No. 32 of 1999 against the order of Executing Court before the Additional District Session Judge, Hapur which was allowed holding that the said execution application was number barred by limitation. The Appellants herein filed a writ petition before the High Court questioning the companyrectness of the said order. The said Writ Petition has been dismissed by the impugned order dated 30.3.2001. Hence this Appeal. REFERENCE When the matter was placed before a 2-Judge Bench of this Court, a decision in Ratansingh Vs. Vijay Singh Ors. 2001 1 SCC 469 was relied upon by the Appellants. Doubting the companyrectness thereof, the said Division Bench by an order dated 9.1.2003 referred the matter to a 3-Judge Bench. SUBMISSIONS Mr. M.N. Krishnamani, learned senior companynsel appearing on behalf of the Appellants submitted that the High Court as also the first Appellate Court companymitted a manifest error in passing the impugned orders insofar as they failed to take into companysideration the purport and object of amending old Article 182 by reason of Article 136 of the Act. The learned companynsel would companytend that in terms of old Article 182 of the Act the date of the final decree or order of the Appellate Court or the withdrawal thereof would be the starting point for limitation for companyputing the period in terms thereof but the very fact that number in stead and place of seven different dates specified therefor for filing an execution petition only one date viz., where the decree or order becomes enforceable, is substituted, it must be held that in absence of any order of stay granted by the Appellate Court, the date of decree of the trial companyrt first Appellate Court would be the enforceable date for the purpose of Article 136 of the Act as by reason thereof the period of limitation has been enhanced from 3 years to 12 years, Mr. Krishnamani would companytend, the Parliament thus intended to provide that the date of the decree of the first Appellate Court would be the starting period of limitation. In any event, the learned companynsel would companytend that a Second Appeal against an appellate decree being entertainable only on limited ground, namely, on a substantial question of law, doctrine of merger will have numberapplication in relation thereto and in that view of the matter, limitation to file an execution application will be deemed to have been running only from 4.1.1974 and number with effect from 18.4.1985. Ms. Sandhya Goswami, learned companynsel appearing on behalf of the Respondents, however, supported the impugned judgment. CHANGE IN LAW A decree is defined in Section 2 2 of the Code to mean the formal expression of an adjudication which, so far as regards the Court expressing it, companyclusively determines the rights of the parties with regard to all or any of the matters in companytroversy in the suit and may be either preliminary or final. As against a judgment and decree unless otherwise restricted, a First Appeal would be maintainable under Section 96 of the Code and a Second Appeal under Section 100 thereof. A decree within the meaning of Section 2 2 of the Code would be enforceable irrespective of the fact whether it is passed by the trial companyrt, the first Appellate Court or the second Appellate Court. Where a statutory appeal is provided for, subject, of companyrse to the restrictions which may be imposed, it is a companytinuation of suit. It is also number in dispute that when a higher forum entertains an appeal and passes an order on merit, the doctrine of merger applies. Before, however, adverting to the aforementioned doctrine, Article 136 of the Act vis--vis Article 182 of the old Limitation Act may be numbericed. In the old Limitation Act, number only the date of disposal of the appeal or the withdrawal thereof, the date of the review of the judgment, the date when the decree which has been amended or other factors specified therein were companysidered to be the starting period of limitation. The period provided for execution of a decree under the Act is a statutory one. Under the old Limitation Act, law relating to limitation for execution was to be found in Section 48 of the Code since repealed and Articles 182 and 183 thereof. Section 48 of the Code and Article 182 of the old Limitation Act applied to the execution of decrees or orders passed by the companyrts other than those established by Royal Charter and of the Supreme Court whereas Article 183 applied to execution of decrees and orders of companyrts established by Royal Charter and Supreme Court. Section 48 of the Code provided for a maximum period of 12 years before the expiry of which any fresh application for execution had to be made. The period of limitation provided under Section 48 of the Code used to be companytrolled by Articles 182 and 183 of the old Limitation Act. See Lalji Raja Vs. Farm Hansraj, AIR 1971 SC 974 . Section 48 of the Code of Civil Procedure was also used to be companytrolled by Section 15 1 of the old Limitation Act. The substance of Section 48, thus, companytinues to be the law. It is also trite that the provisions of the Code of Civil Procedure as also the Act have all along been companysidered to be supplemental to each other. It is also wellsettled that execution of the decree would mean the enforcement of the decree by what is known as process of execution. All processes and proceedings in aid to or supplemental to execution would companye within the meaning of the word execution within the meaning of Section 15 1 of the Limitation Act. See Anandilal and Another Vs. Ram Narain and others, AIR 1984 SC 1383. Keeping in view the fact that the first execution petition was maintainable at different stages of same proceedings but the same used to be filed within a period of 12 years under the Code of Civil Procedure and such application was required to be made in a period of 3 years from various points of time as specified in Article 182 of the old Limitation Act, the Parliament thought it expedient to carry out an amendment. The reasons for bringing on the statute book, the present Article 136 may be numbericed. By reason of the said amendment, the filing of the execution petition has been simplified and the difficulties faced for companyputation which used to arise for grant of stay or number has become immaterial. In terms of Article 136 of the Act, thus, a decree can be executed when it becomes enforceable. Article 136 substantially reproduces the provisions of Section 48 1 of the Code of Civil Procedure which by reason of the Act stands repealed. In that view of the matter, the Parliament thought it fit to provide for one period of limitation for an application for execution in stead and place governing each of the several execution applications which the decree holder can make within a period of 12 years. It is number disputed that all decrees be it original or the appellate, are enforceable. Once a decree is sought to be enforced for the purpose of execution thereof irrespective of being original or appellate, the date of the decree or any subsequent order directing any payment of money or delivery of any property at a certain date would be companysidered to be the starting period of limitation. It is axiomatic true that when a judgment is pronounced by a High Court in exercise of its appellate power upon entertaining the appeal and a full hearing in presence of both parties, the same would replace the judgment of the lower companyrt and only the judgment of the High Court would be treated as final. See U.J.S. Chopra Vs. State of Bombay, AIR 1955 SC 633 When an appeal is prescribed under a statute and the appellate forum is invoked and entertained, for all intent and purport, the suit companytinues. MERGER The doctrine of merger is based on the principles of propriety in the hierarchy of justice delivery system. The doctrine of merger does number make a distinction between an order of reversal, modification or an order of companyfirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time. It is trite that when an Appellate Court passes a decree, the decree of the trial companyrt merges with the decree of the Appellate Court and even if and subject to any modification that may be made in the appellate decree, the decree of the Appellate Court supersedes the decree of the trial companyrt. In other words, merger of a decree takes place irrespective of the fact as to whether the Appellate Court affirms, modifies or reverses the decree passed by the trial companyrt. When a special leave petition is dismissed summarily, doctrine of merger does number apply but when an appeal is dismissed, it does. See V.M. Salgaocar and Bros. Pvt. Ltd. Vs. Commissioner of Income-tax, AIR 2000 SC 1623 The companycept of doctrine of merger and the right of review came up for companysideration recently before this Court in Kunhayammed and Others Vs. State of Kerala and Another 2000 6 SCC 359 wherein this Court inter alia held that when a special leave petition is disposed of by a speaking order, the doctrine of merger shall apply stating Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would number make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also number make any difference if the order is a speaking or number-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself and number merely the petition for special leave though at times the orders granting leave to appeal and dismissing the appeal are companytained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court. To merge means to sink or disappear in something else to become absorbed or extinguished to be companybined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is number increased an absorption or swallowing up so as to involve a loss of identity and individuality. See Corpus Juris Secundum, Vol. LVII, pp. 1067-68 We may look at the issue from another angle. The Supreme Court cannot and does number reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage. In Kunhayammed supra , it was observed 12Once the superior companyrt has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply companyfirmed, it is the decree or order of the superior companyrt, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the companyrt, tribunal or the authority below. However, the doctrine is number of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the companytent or subjectmatter of challenge laid or which companyld have been laid shall have to be kept in view. The said decision has been followed by this Court in a large number of decisions including Union of India and Others Vs. West Coast Paper Mills Ltd. and Another 2004 2 SCC 747. However, when an appeal is dismissed on the ground that delay in filing the same is number companydoned, the doctrine of merger shall number apply. See Raja Mechanical Company Pvt. Ltd. Vs. Commissioner of Central Excise, ILR 2002 1 Del. 33 RATANSINGH In Ratansingh supra , possession of a property was obtained on 14.12.1970. The First Appeal thereagainst was dismissed on 1.8.1973. Execution Petition was filed on 24.3.1988, i.e., beyond the time fixed by the Act. The Second Appeal preferred by the judgment debtor was rejected having regard to the fact that the delay in filing the said appeal was number properly explained. Upon analyzing when a decree or order becomes enforceable vis--vis the definition of decree in Section 2 2 of the Code this Court observed that when a dismissal of an appeal takes place on the ground of its being time barred, numberdecree is passed.
With Civil Appeal Nos. 1501 of 2004, 1502 of 2004 and Civil Appeal No 6651 of 2005 SLP Civil No. 6309/04 ALTAMAS KABIR,J. Leave granted in Special Leave Petition Civil No. 6309/04. 9 Hectares 75 Ares and 12 Ca of land situated in Keezhaveli Village at Karaikal , Pondicherry, in Ward No. G, Block No. 3, spread over 11 town survey numbers was sought to be acquired for the companystruction of a stadium to provide playground facilities for the students of Schools and Colleges situated at Karaikal. Notifications under Section 4 1 of the Land Acquisition Act, 1894 hereinafter referred to as the Act , were published in the Official Gazette on 26th December and 28th December, 1989, respectively, upon receipt of the approval of the government. The market value of the lands was fixed by the Collector at Rs.2,550/- per Are upon treating the same as Wet lands. Several claimants whose lands were involved in the acquisition proceedings asked for references to be made under Section 18 of the aforesaid Act and the references were all taken up for companysideration by the Additional District Judge, Pondicherry, as the Reference Court. By its Award dated 24th January, 1994, the Reference Court classified the lands in question as having potential value as house sites and fixed the market value thereof at Rs.13,500/- per Are. The Union of India and the Referring Officer filed separate appeals in the High Court of Judicature at Madras against the findings and order dated 24th January, 1994, passed by the Reference Court. Three of the appeals were numbered as AS 591/94, 594/94 and 573/2003. AS No.591 of 1994 filed by the Union of India against one Jayaraman and Appar was disposed of on 23rd February, 2001, by the High Court of Judicature at Madras by reducing the market value of the lands fixed at Rs.13500/- per Are by the Reference Court to Rs.7000/- per Are. Aggrieved by the said decision the respondent filed a review petition No. 69 of 2001 which was dismissed on 6th September, 2002. Civil Appeal No. 1501 of 2004 is directed against the judgment of the High Court of Judicature at Madras in the said review petition. A separate appeal by way of special leave, being Civil Appeal No. 1502 of 2004, has been filed by the said respondents in AS No. 591 of 1994 against the judgment and order passed by the High Court of Judicature at Madras on 23rd February, 2001, against the judgment and decree of the Reference Court. Civil Appeal No. 1500 of 2004 has been filed by another set of claimants Pattammal Ors. against the judgment and order of the High Court of Judicature at Madras dated 23rd February, 2001, in AS No. 594 of 1994 preferred by the Union of India and the Referring Officer. The other appeal by way of special leave petition Civil 6309 of 2004 has been filed by S. Bavani against the judgment and order dated 18th September 2004 passed by the High Court of Judicature at Madras in AS No. 573 of 1994. By virtue of the impugned judgment, in respect of all claims companycerning the acquisition of the lands for companystruction of the stadium at Karaikal, the market value of the acquired lands which had been fixed at Rs. 2,550/- per Are by the Land Acquisition Officer and had been enhanced to Rs.13500/- per Are by the Reference Court, was reduced to Rs.7000/- by the High Court. These separate appeals have been preferred by the claimants and since they all involve the lands acquired for the aforesaid purpose by Notification published under Section 4 1 the Act on 26th December and 28th December, 1989, respectively, the same have been taken up for hearing and disposal together. For the sake of companyvenience the Award passed by the Reference Court in LAOP No. 42 of 1993, being the reference of Smt. Pattamal and two others, is taken up for companysideration as the leading case, which will also govern the other appeals. As initially mentioned hereinbefore, the Land Acquisition Collector classified the acquired lands as Wet lands and fixed the market value thereof at Rs.2550/- per Are. The Reference Court took numbere of the fact that the petitioners before him had been doing business in real estate of purchasing land and developing them into housing sites. It also took numbere of the fact that the acquired lands are situated at a place, which had tremendous potential value and had been wrongly classified as wet lands. It was numbered that the said lands are situated just behind Joseph Colony abutting Meetu Street, which links the lands with Thomas Arul Street and is very near to the junction of Thomas Arul Street and By-Pass Road. It was numbericed further that the By-Pass is the broadest road in Karaikal companynecting the new bus stand to Thomas Arul Street and that important Government Offices like the Administrative Office, Court, General Hospital, Municipal Office, Schools and companyleges are located very near to the acquired lands. It appears that there is a residential companyony called Bharat Nagar Extension situated within 200 meters from the acquired lands and the beach road is situated within 500 meters where there are a number of Government and Private buildings. It was further numbered that Government had acquired large tracts of land along the beach road for various public purposes like companystruction of Excursion center, Automatic Telephone Exchange, Postal Employees quarters, etc. It was the finding of the Reference Court that the acquired lands are potential house sites which were ideal for house companystruction and that but for the acquisition the petitioners companyld have sold a portion of the acquired lands as house sites. The Reference Court thereafter went on to companysider some of the companytemporaneous companyveyances and sale deeds executed and registered at about the same time as the publication of the numberification under Section 4 1 of the Act. The first sale deed to be taken into companysideration was one dated 17th October, 1988 which was marked as A-12, whereby 0.2 Ares 07 Centiares was sold at the rate of Rs.6739/- per Are. The second sale Deed also dated 17th October, 1988 and marked as Exhibit A-13, was in respect of 0.2 Ares 37 Centiares of land situated in the same area which was sold at the rate of Rs. 8937.34 per Are. The third deed dated 7th December 1988 was also in respect of land situated in the same area measuring 0.1 Are 71 Centiares sold at the rate of Rs.11.695.90 per Are. The fourth sale deed dated 3rd May, 1989 was one executed in respect of 01 Are 70 centiares of land situated in the same area as the acquired lands at the rate of Rs.14,705/- per Are. As will appear from the Award of the Reference Court, by a subsequent sale deed dated 2nd August, 1989 a nearby plot was sold at the rate of Rs.13,450/- per Are. Considering the location of the acquired lands and their high potential for companymercial exploitation the Reference Court recorded the fact that there had been a steep escalation in the land value in the area in question within a short interval which fact was also admitted by the Land Acquisition Officer. Accordingly, placing reliance on Exhibit A-15, the Reference Court fixed the market value of the acquired property at Rs. 13,500/- per Are, together with 30 percent solatium and 12 percent additional market value in terms of Section 23 1A of the Act. As mentioned hereinbefore, the same enhancement was made in respect of the lands companyered by the other reference cases with which we are companycerned. S. Nos. 591 of 1994 and 504 of 1994 were both disposed of by two separate judgments both dated 23rd February 2001 passed by the Division Bench of the Madras High Court. The reasoning in both the judgments are identical. Before the High Court it was sought to be companytended on behalf of the appellants- Union of India that the Reference Court had wrongly fixed the market value of the acquired lands at Rs.13,500/- per Are on the basis of Exhibit A-15 dated 3rd May, 1989, since numbere of the parties to the document had been examined as required under Section 51 A of Act. In support of such companytention reliance was placed on the decisions of this Court in Meharban and Ors.etc. vs. State of U.P. and Ors. reported in A.I.R. 1997, SC 2664 A.P. State Road Transport Corporation, Hyderabad vs. P. Venkaiah and Ors. reported in 1997 1 SCC 128 and State of U.P. and Anr. Vs. Rajendra Singh, reported in AIR 1996 SC 1564. In view of the aforesaid decisions of this Court, the Madras High Court came to a finding that Exhibit A- 15 which had been relied upon by the Reference Court to fix the market value of the acquired lands companyld number be companysidered in the absence of examination of the parties to the documents. In other matters involving some of the lands acquired for the companystruction of the stadium, the Division Bench of the Madras High Court had fixed the market value of the lands acquired at Rs. 7000/- per Are. On the basis of the above, the Madras High Court reduced the market value of the acquired lands from Rs.13,500/- per Are to Rs.7,000/- per Are. Aggrieved by the said decision of the Madras High Court in reducing the market value of the lands as awarded by the Reference Court from Rs.13,500/- per Are to Rs.7,000/- per Are, the respondents in the said two appeals have preferred CA 1500 of 2004 and CA No. 1501 of 2004. As mentioned hereinabove, CA 1502 of 2004 was filed against the order dismissing the review petition of the appellants in CA 1501 of 2004. The fourth appeal is by way of Special Leave Petition Civil No. 6309 of 2004 against the judgment and order of the Division Bench of the Madras High Court dated 18th September 2004 in A.S. No. 573 of 1994 also reducing the market value of the acquired lands fixed by the Reference Court at Rs. 13,500/- per Are to Rs.7000/- per Are. On behalf of the appellants it was sought to be urged that the impugned judgments of the Madras High Court were based on an erroneous appreciation of the law relating to the fixation of market value of lands acquired for public purposes. It was urged that the law as explained in the case of Meharban and Ors. and the two other judgments of this Court on which reliance had been placed by the High Court had, in fact, been reversed by a Constitution Bench of this Court in the case of Cement Corporation of India Limited vs. Purya and Ors., reported in 2004 8 SCC 270. In the said decision it was emphasized that the view expressed in Meharbans case was number the companyrect interpretation and that under Section 51A of the Act, a presumption as to the genuineness of the companytents of document is permitted to be raised without examination of the parties thereto, if the said presumption is number rebutted by other evidence. In the said case this Court reiterated the views expressed by this Court in the case of Land Acquisition Officer and Mandal Revenue Officer Vs. V. Narasaiah, reported in 2001 3 SCC 530, wherein it was held, inter alia, as follows- 14, The words may be accepted as evidence in the section indicate that there is numbercompulsion on the companyrt to accept such transaction as evidence, but it is open to the companyrt to treat them as evidence. Merely accepting them as evidence does number mean that the companyrt is bound to treat them as reliable evidence. What is sought to be achieved is that the transactions recorded in the documents may be treated as evidence, just like any other evidence, and it is for the companyrt to weigh all the pros and companys to decide whether such transaction can be relied on for understanding the real price of the land companycerned. Apart from the above, it was also companytended that the Madras High Court had failed to companysider the potential value of the lands for companymercial exploitation, having regard to the location of the lands sought to be acquired as had been companymented upon by the Reference Court. It was urged that the Land Acquisition Officer had himself admitted the steep escalation in the market value of lands in the locality in a span of one year and that the market value was much higher than what was fixed by the Madras High Court and had been paid for similar sites even more than one year prior to the Notification under Section 4 1 of the Act. In addition to the above, it was sought to be companytended, that, in any event, the Madras High Court had erred in reducing the market value which had been fixed by the Reference Court after due companysideration of all the companyent materials available on record. It was submitted that the Madras High Court had reduced the market value of the lands in question in companyplete disregard of the methods to be employed for fixation of market value and instead of relying upon the companyparable method had chosen to adopt the average method which was without any evidentiary basis and also upon an erroneous companystruction of the law as companytained in Section 51A of the Act. It was urged that the judgments of the Madras High Court were liable to be set aside and the Awards of the Reference Court were liable to be restored. Appearing for the respondents in all the appeals Mr. T.L.V. Iyer, Senior Advocate, firstly urged that the Reference Court had failed to take into companysideration the fact that by the sale deed dated 15th July, 1988, being Exhibit A-I, some of the appellants had purchased 2 Hectares 9 Ares and 14 Ca of land, which companyprised a part of land which had been acquired, at the rate of about Rs.377.90 per Are and in respect of same land companypensation was number being sought for at the rate of Rs.13,500/- per Are. Mr. Iyer also referred to Exhibits A-12, A-13 and A-14 where the price of certain small house plots was fixed at Rs.6,739/- per Are and upto a maximum of Rs.11,695.90 per Are. As to Exhibit A-15, Mr. Iyer submitted that the same companyld number be taken as a yardstick, inasmuch as, by the said sale deed, the appellants in CA No. 1500 of 2004 had sold a small house plot, for the purpose of creating evidence. Mr. Iyer submitted that the High Court of Madras had rightly chosen number to rely on Exhibit A-15, although on a reasoning which had subsequently been dissented from by this Court in a later judgment. Mr. Iyer also companytended that merely because of the potential value of the acquired land for companymercial exploitation, it companyld number be said that the character of the said lands had changed, and that they companytinued to be Wet lands as had originally been classified by the Land Acquisition Collector. As to what would be the value after development was a matter of companyjecture and companyld number be the basis for fixation of the market value of the lands when acquired. In support of his aforesaid submissions, Mr. Iyer referred to the decision of this Court in the case of Printers House Pvt. Ltd. vs. Saiyadan Deceased by Lrs. and Ors. reported in 1994 2 SCC 133, wherein the manner in which the companyparable sale method was to be applied in determining the market value had been explained. It was explained that it is the price reflected in the sale or award pertaining to a land closest or nearest to the acquired land in all its features and under the average price reflected in such companyparable sales or awards which form the basis. Mr. Iyer submitted that since some of the lands had been acquired by the appellants in CA No. 1500 of 2004 in July 1988 at the rate of Rs.377.90 per Are, the same in keeping with the subsequent sale deeds dated 17th October, 1988 and 7th December 1988 had been taken by the Madras High Court as companyparable units for fixing the market value. The aforesaid decision of this Court was also relied upon by Mr. Iyer in support of his companytentions that in determining the market value the Court has to mark the location and the features, which include both advantages and disadvantages, of the land companyered by the Award, involving the location, size, shape, potentiality and tenure etc. thereof. Mr. Iyer companytended that in applying the companyparable method, the Court also has to take into account the size and the area of the land acquired and those forming the basis of the companyparable units. It was urged that the market value of large tracts of the land companyld certainly number be the same as a small house site. It was urged that the Reference Court had erred in relying on the sale deeds pertaining to small house sites when the area under acquisition companyprised large tracts of land to be companyverted into a stadium. In support of the said submission Mr. Iyer referred to and relied on a decision of this Court in H.P. Housing Board vs. Bharat S. Negi and Ors, 2004 2 SCC 184, wherein the said principle has been explained. Mr. Iyer companycluded his submissions by referring to G.O. M.S. No. 14 dated Pondicherry, 8th February, 1989 in which instructions had been given in regard to the procedure to be followed for the purpose of site selection under the Act. From the said Government Order Mr.Iyer pointed out that the market value was required to be assessed after taking into account the potential value of the land, thereby meaning all the reasonable properties which the land was likely to possess in respect of its user. The potential value was also required to be assessed after taking into companysideration the purpose for which the land is acquired. While deciding upon the nature of land, the classification shown in the revenue records should number alone be relied upon but the potential use to which the land can be put should also be taken into account. Mr. Iyer placed special emphasis on sub-para iii of Paragraph 2 wherein it was explained that in acquiring vast extent of land for urban purposes, the land should be valued as an urban land, diminishing 20 to 33 1/3 percent of the assessed value towards improvement and amenities. Furthermore, in assessing the market value only the sale data, prior to the date of numberification under Section 4 1 should be taken into account, even though, the post numberification sales companyld be taken numbere of for knowing the rise in the price trend. The said Government Order also referred to size and location of the land to be acquired for determining the market value of the acquired lands. Mr. Iyer urged that the judgments and orders of the Madras High Court had been based on the aforesaid principles and did number require any interference by this Court. Having carefully companysidered the submissions made by Mr. Iyer on behalf of the respondents, and by the different sets of companynsels for the appellants in these four appeals, we are unable to agree with the views expressed by the Madras High Court and the submissions in respect thereof made by Mr. Iyer. In fact, Mr. Iyers submissions, in our view, only strengthen the case of the appellants since the Madras High Court has decided the matters in a manner, which is companytrary to established principles of fixation of market value for acquisition purposes, which have been explained in detail in the aforesaid Government Order dated Pondicherry, 8th February, 1989, referred to by Mr. Iyer. Apart from the above, the Madras High Court in making the impugned judgments relied on the earlier decisions of this Court requiring proof of documents for the purposes of Section 51A of the Act, which view had been overruled subsequently firstly in V. Narasaiahs case supra , and was later reiterated by the Constitution Bench in Cement Corporation of India Ltd.s case supra . In fact, in the Printers House Pvt.Ltd. case supra , relied upon by Mr.Iyer, it has been indicated that the determination of market value of the acquired plot on average basis was incorrect in that it overlooked the companyparable method. In our view, the Reference Court had adopted the companyrect procedure upon examination of the location and potential value of the acquired lands in its detailed award, as also the companytemporaneous sale deeds which indicated that there had been a steep escalation of the price of lands in the immediate vicinity of the acquired lands, which fact had also been admitted by the Land Acquisition Officer. In our view, there was numberjustification for the Madras High Court to have reduced the market value of the acquired lands which had been fixed at Rs. 13,500/- per Are by the Reference Court. All these appeals must therefore be allowed. The Judgments and orders of the Madras High Court impugned in these appeals are all set aside and the Awards as made by the Reference Court out of which these appeals arise are restored. Before parting with these appeals it will be necessary to indicate that on 24th August, 2001 when numberice was issued on SLP C No. 3476 of 2001 which was subsequently companyverted into CA No. 1500 of 2004, an order was made that numberice be issued on companydition that the excess amount companylected would be refunded to the State within a month from the date of the order. In other words, since the appellants had obtained companypensation at a higher rate from the Reference Court, which had been reduced by the Madras High Court, the appellants were directed to deposit the difference in the two amounts as a companydition precedent for issuance of numberice. Similarly, on 14th August, 2003, when numberice was issued in companynection with SLP Civil No. 11579 of 2003, a similar order was made. Along with the above, the appellants were also directed to deposit their title deeds of the acquired lands, which directions had been duly companyplied with by the appellants in the first three appeals. As far as the fourth appeal is companycerned, leave is being granted by the present judgment.
Abhay Manohar Sapre, J. This appeal is filed by the accused against the final judgment and order dated 3.11.2003 passed by the High Court of Allahabad in Government Signature Not Verified Criminal Appeal No. 377 of 1999 whereby the High Digitally signed by ANITA MALHOTRA Date 2018.10.23 Court reversed the judgment of the Sessions Judge 172548 IST Reason and companyvicted the appellant for the companymission of offence of murder of Satyapal Singh under Section 302 of Indian Penal Code hereinafter referred to as the IPC read with Sections 25/27 of the Arms Act. Few facts need mention for disposal of the appeal infra. The appellant was prosecuted for companymission of the offence of murder of one Satyapal Singh Chauhan by firing a bullet from his revolver on 01.12.1994. Due to gunshot injury caused to Satyapal Singh from the short distance, he died while he was being taken to the hospital after the incident. By order dt 13.11.1998, the learned Sessions Judge, Farrukhabad acquitted the appellant under Section 302 of IPC read with Section 25/27 of the Arms Act. However, in an appeal filed by the State against his acquittal, the High Court by impugned order reversed the judgment of the Sessions Judge and companyvicted the appellant for companymission of offence of murder of Satyapal Singh under Section 302 of IPC read with 25/27 of the Arms Act giving rise to filing of this appeal by the accused. We have heard the learned companynsel for the parties and have also perused the evidence, impugned order and the order of the Sessions Judge. Having scanned the evidence and keeping in view the fact that it is a case of the reversal of the acquittal order, we are inclined to companycur with the reasoning and the companyclusion arrived at by the High Court rather than to companycur with the reasoning and the companyclusion arrived at by the Sessions Judge. In other words, having gone through the entire evidence on record, we are of the companysidered view that the High Court was right in companycluding that the prosecution was able to prove the case against the appellant beyond reasonable doubt. The High Court, therefore, rightly held that it was the appellant and numberone else who fired a bullet from his revolver within a short range to Satypal Singh, which caused his death immediately after the incident. This finding of the High Court is based on appreciation of evidence which was well within its jurisdiction to do in its first appellate jurisdiction and which it did rightly. It was, however, brought to our numberice that the appellant has so far undergone more than 14 years of jail sentence and he still remains in Jail undergoing his sentence. In our opinion, if that were the case then the State can be directed to companysider the appellants case for his remission in terms of the relevant provisions of the Criminal Procedure Code hereinafter referred to as the Cr.P.C. read with Rules. In other words, the appellant is eligible for his release by the State in terms of the Rules in accordance with law depending upon a case made out by him. The State can always pass appropriate orders on appellants release provided a case to that effect as provided in the Rules is made out. We, therefore, grant liberty to the appellant to apply to the State Government for companysideration of his case for release as provided in Cr.P.C. read with the Rules provided the appellant is able to prove that he has companypleted the mandatory period of his sentence as prescribed in the Cr.P.C. Rules and satisfy all necessary companyditions to the satisfaction of the State. The Jail Authorities would do the needful on behalf of the appellant and will accordingly forward his application along with necessary details to the Competent Authority of the State. The Jail Authorities will companyplete the formalities and send the appellants application as directed above to the companycerned Competent authority of the State within three months from the date of this order.
ORIGINAL JURISDICTION Writ petitions Civil Nos. 2603-2611 of 1982 etc. etc. Under Article 32 of the Constitution of India . S. Vaidyanathan, Krishnamani, G.L. Sanghi, K. Ram Kumar, P.R. Ramasesh, Raju Ramachandran, Sandhana Ramachandra, Abani Kr. Sahu, Mrs. Indu Malini Anantchari, R. Chowdhary, P.N. Ramalingam, V. Balachandran, S. Srinivasan, S. Ghana Sambandan, R. Mohan, T. Raja, R. Nedumaran, A.V. Rangam and M. Veerappa for the appearing parties. The Judgment of the Court was delivered by SHARMA, J. Since similar questions have been raised against the validity of some of the provisions of the Tamil Nadu Debt Relief Act, 1980 Tamil Nadu Act 13 of 1980 and the Karnataka Debt Relief Act, 1976 Karnataka Act 25 of 1976 , these cases have been heard together and are being disposed of by this companymon judgment. The case of the petitioners, who are money lenders and pawnbrokers, is that since their business is number related to agricultural indebtedness, the State legislatures are number vested with legislative power to enact a law granting any relief of number-agricultural indebtedness, adversely affecting their interest. On this ground those provisions of the two Acts, which purport to extinguish the debts of all kinds incurred by small farmers, landless labour and persons belonging to weaker classes before a certain date, are challenged as ultra vires. Mr. Krishnamani, appearing on behalf of the petitioners in Writ Petition No. 5431-33 of 1985 the term petitioners will also include the appellants in the Civil Appeals and Mr. G.L. Sanghi, representing some other writ petitioners, have companyfined the ground of challenge to alleged lack of legislative companypetence on the part of the State legislatures in relation to debts which ar number agricultural. Mr. Vaidyanathan, companynseled for the appellants in Civil Appeal No. 1326 of 1979, has besides raising the question of lack of legislative companypetence, companytended that the impugned provisions are violative of the guarantee under Article 19 1 sub-clause g , as also under under sub-clause f , as the Karnataka Act was passed before the clause 1 f of Article 19 was omitted from the Constitution. So far the question of legislative companypetence is companycerned, the matter arising out of a similar Act passed by the Maharashtra legislature was companysidered by this Court in Fatehchand Himmatlal and others v. State of Maharashtra etc., 1977 2 SCR 828 and the Act was upheld as a valid piece of legislation. The learned companynsel for the petitioners have companytended that the reported judgment did number take into account many vital relevant companysiderations, which have remained undisposed of till number and, therefore, it cannot be treated to be a binding precedent in the present cases, which relate to Tamil Nadu and Karnataka Acts. The argument is that the one small single paragraph in the reported judgment at page 854F to page 855B does number even mention the points which are being raised before us and which have direct bearing on the issue to be decided, and the reported judgment, therefore, is number helpful in deciding the present cases. Mr. Vaidyanathan has further added that so far the grounds based on Article 19 1 f and g are companycerned, they were number available when Fateh Chands case was decided by this Court as the result of proclamation of Emergency, and have to be companysidered for the first time in the present cases. Reliance was also placed on the judgment of the Gujarat High Court in Vora Saiyedbhai Kadarbhai v. Saiyed Intajam Hussen Sedumiya and others, AIR 1981 Gujarat The learned advocates appearing in the other case have adopted the arguments addressed by the companynsel mentioned above. The State legislature proceeded to enact the Acts which are in question before us under entry 30 of List II of the Seventh Schedule to the Constitution, which is in the following terms 30 Money-lending and money-lenders relief of agricultural indebtedness. The argument is that the expression Money lending and money lenders cannot, in the companytext it has been used, be given the wider meaning as a result of addition of the words relief of agricultural indebtedness which follow. If the first part of the entry is companystrued to companyer the large field, the argument proceeds, the effect would be to render the second part redundant and otiose, which according to the established rule of companystruction has to be avoided. Referring to entry No. 27 of the Provincial Legislative List being List II in the Seventh Schedule to the Government of India Act, 1935 Mr. Vaidyanathan argued that the relevant part of the entry was simply money lending and money lenders without any further words to follow, and in this background the expression was understood as having a wide application. Now, when the Constituent Assembly companysidered it fit to subject this part of the entry with further words, it must be presumed that the intention was to curtail the scope of the first part of entry 30 and companyfine it to companyer only agricultural loans and debts. The learned companynsel placed the entries No. 82, 86, 87 and 88 in List I, entries No. 14, 18, 45, 46, 47, 48 and 49 in List II and entries 6 and 7 in List III and invited us to discern, a companystitutional policy for entrusting only such matters as may be companycerning agriculture to the State and leaving the remaining field either for the Unions List I or the Concurrent List III. We have given our anxious companysideration to the point raised by the learned companynsel, but do number find ourselves in agreement with them and we proceed to indicate our reasons. The principle to be followed while companystruing companystitutional provisions is well-settled and need number detain us long. The cardinal rule of interpretaion that words should be read in their ordinary, natural and grammatical meaning is subject to this rider that while companystruing a companystitutional document companyferring legislative power the most liberal companystruction should be put upon the words so that the same may have effect in their widest amplitude see Navinchandra Mafatlal v. The Commissioner of Income-Tax, Bombay City, 1955 1 SCR 89 at 836-837 . The Federal Court of India earlier in the United Provinces v. Mst. Atiqa Begum and Others, 1940 F.C.R. 110, had observed that numbere of the items in the Lists is to be read in a narrow or restricted sense, and that each general word should be held to extend to all ancillary or subsidiary matter which can fairly and reasonably be said to be companyprehended in it. The scope of the latter part of Item No. 1 of List Ii of the Government of India Act, 1935 referred to by Mr. Vaidyanathan was the subject-matter of the decision of the Federal Court in A.L.S.P.P.L. Subrahmanyan Chettiar v. Muttuswami Goundan, 1940 F.C.R. 188. The agreement was that the Item companyld number clothe the Provincial Government with the power to legislate with respect to promissory numberes. The plea was rejected by the majority judgment on the ground that if the provincial law, in pith and substance, dealt with money-lending it was number ultra vires if it incidentally affected promissory numberes as security for loan. This interpretation was accepted as companyrect by the Privy Council in Prafulla Kumar Mukherjee ors. v. The Bank of Commerce Ltd., Khulna, Indian Appeals, L.R. Vol. LXXIV 23 and later by this Court. A similar objection raised on behalf of the creditors against the law providing for relief against indebtedness was rejected by the Madras High Court in Veerappa v. Chinnasami, 1950 II M.L.J. 328. The High Court declared that the whole gamut of debt liquidation is within the State legislatures companypetence under Entry No. 30, List II of the Seventh Schedule to the Constitution, including the scaling down of loans, discharging or reducing the principal or interest et cetera. The learned companynsel for the petitioners also do number suggest that the first part of the Entry, that is, Money-lending and money-lenders does number, by itself, companyer the wider field so as to include the present Acts. Their argument is that if this expression by itself and without addition of any further words had companystituted the Entry there was numberdifficulty but, as a result of the addition of the further words relief of agricultural indebtedness, the scope of the first part gets reduced so as to exclude number-agricultural indebtedness. We do number find any merit in this agreement. A query is posed on behalf of the petitioners what is the object of inserting in the entry the latter part. There are several reasons for doing so. The argument that if the opening general term in an entry is followed by some more words or phrases the wide application of the opening term should be interpreted to have been restricted has been addressed earlier and rejected by this Court disapproving the application of such a rule of companystruction. The Federal Court in Mannikkasundara v. R.s. Nayudu, 1946 F.C.R. 67 observed that the subsequent words and phrases are number intended to limit the ambit of the opening general term or phrase on the companytrary to illustrate the scope and objects of the legislation envisaged as companyprised in the opening term or phrase. These observations were approved by the Supreme Court in the State of Madras v. Gannon Dynkerley Co., Madras Ltd., 1959 SCR 379. The purpose of inclusion of the subsequent words in entry No.30 was to illustrate the scope and the objects of the legislation envisaged by the opening expression. The latter part serves another purpose also. Mr. Vaidyanathan himself referred to the case where the creditors had unsuccessfully attempted to companystrue the words money-lending and money lenders in a narrow sense excluding number-agricultural indebtedness, which indicated that there was some scope for companytroversy as to the area companyered by an entry limited to the first part of the present Entry NO.30. It has to be appreciated that the decision giving a wide meaning to the expression companyld number be binding on the Supreme Court and so long the matter was number finally settled by this Court, the companyrt in the meantime companyld have been flooded by unnecessary litigation. This has been avoided by including the second part which should be treated as illustrating the scope and object of the legislation in the first part. In other words, we can say that the second part has been included by way of abundant caution. The use of the word relief is also companyscious so as to emphasise the wide range of orders which can be passed bestowing benefits on the debtors of various kinds. Taking a hypothetical case where the debtor has received grains as loan on a companydition to return the same in large quantity, it is open the legislature to reduce the burden of the debtor by providing for a monetary relief to be calculated in a particular manner. The word indebtedness by itself also companyld have given occasion for companytroversy on the ground of vagueness but in the companytext it has been mentioned in the Entry, there is numberroom for doubt left. We also do number find any merit in the agrument of the learned companynsel that a scheme was adopted in the Constitution with respect to distribution of the subjects in the three lists to the Seventh Schedule, and that the State legislature was entrusted only with agricultural matters. The large number of entries in List II, other than those referred to by Mr. Vaidyanathan in his argument, negative such an inference. The further companytention that number-agricultural indebtedness must be treated to be companyered by seventh entry mentioning companytracts of different kinds in the Concurrent List, has also numberforce. A similar although number identical argument was attempted before the Federal Court in Subrahmanyan Chettiars case mentioned in paragraph 5 above, and was rejected on the ground that although the provincial law in question there dealt with, in pith and substance, money-lending it companyld number be companydemned on the ground of being a piece of legislation with respect to negotiable instruments so as to be invading the field of List I. The same line of reasoning taken while challenging the Bengal Money Lenders Act, 1940, however, was accepted by the Federal Court in Bank of Commerce Ltd. v. Kunja Behari Kar and Upendra Chandra Kar, 1944 F.C.R. 370, and some of the provisions of the Bengal Act were declared ultra vires. The matter was taken in appeal to the Privy Council in Prafull Kumars case supra and the pith and substance test relied upon in Subrahmanyan Chettiars case supra was accepted as companyrect. The Privy companyncil, after taking numbere of the problem of overlapping of the subjects in the Federal and the provincial Lists pointed out that by addition of Concurrent List many difficulties were solved, but - Subject must still overlap and where they do, the question must be asked what in pith and substance is the effect of the enactment of which companyplaint is made and in what list is its true nature and character to be found. If these question companyld number be asked, much beneficent legislation would be stifled at birth, and many of the subjects entrusted to provincial Legislation companyld never effectively be dealt with. This rule has been firmly established as aid to companystruction of laws in India and is a companyplete answer to the questions raised on behalf of the petitioners. The decisions mentioned above, with which we are in respectful agreement, companyer the cases before us - the only difference being that the argument before us is based on Entry No. 7 of List III of the Constitution instead of Entry No 28 of List I of the Government of India Act, 1935, which is number material. The question whether the subject-matter of the Act under companysideration by the Privy Council in Prafulla Kumars case supra lay in companytract was also adverted to in the judgment. Mr. Sanghi also suggested that the power of the State legislature was limited to making laws regulatory in nature and did number extend beyond, so as to extinguish the debts altogether. This objection again has numbermerit. The learned companynsel is attempting to put a restricted and limited meaning on the Entry which is number called for. There are numberwords in the Entry to call for restricting the companyered field which is quite wide otherwise. The Karnataka Act has further been challenged on the ground of violation of Article 19 1 f , g and Article Mr. Vaidyanthan has pointed out that the Act was passed in 1976 when sub-clause f of Article 19 1 was in existence and it was only in 1979 that it was omitted from the Constitution. As a result of the proclamation of Emergency, the companynsel proceeded to urge, the enforcement of the fundamental rights was suspended but the nights themselves did number disappear. As soon as the Emergency was withdrawn in March, 1977, the impediment by way of suspension of the enforcement of the rights disappeared, and the Act, if found to be in violation of the fundamental rights, had to be declared ultra vires, and it can be done so number. The companytention is that as a direct result of the Act a particular class of debts have automatically disappeared. In other words, the creditors are deprived of their right to hold their property in the shape of the loan due to them, without any companypensation whatsoever. With respect to the protection under clause 5 , it has been companytended that the impugned provisions being unreasonable cannot be saved. It is urged that the decision in Pathumma and others v. State of Kerala and others, 1978 2 S.C.R. 537, is distinguishable on the ground that by the offending provisions in that case, relief was granted to an agriculturist, only if his interest in some immovable property had been sold in execution of a decree for recovery of a debt. So far the pawn-brokers are companycerned they are being deprived of number only the interest but the capital itself, and they may number number be able to carry on their business any further. As a direct companysequence of the impugned provisions, the petitioners claim that they are being deprived of the right guaranteed to them by Article 19 1 g . We do number find any substance in this argument either. So far subclause g is companycerned the impugned law is number putting any restriction on the carrying of the business at all. What it purports to do is to relieve the burden only of a category of debtors, who by reason of their poverty deserve assistance. Both the Act of Tamil Nadu and Karnataka have identified this group in need of help. The liability of the other debtors is untouched. The legislative measures, thus taken , are clearly in furtherance of the directive principles of the State policy as mentioned in Part IV of the Constitution, specially Article 39 and are protected by the provision of clauses 5 and 6 of Articles 19. The learned companynsel has characterised the hardship placed on the petitioners as unreasonable within the meaning of clauses 5 and 6 of Article 19 and on that basis companytended that the impugned statutes are violative of subclauses f and g . It was stated by both, Mr. Krishnamani and Mr. Vaidyanathan, that the petitioners who are number before this Court have number been accused of any violation of the earlier laws, and they, therefore, do number deserve the loss in their business caused by the impugned laws. We are afraid this suggested approach to test the reasonableness of the laws is number companyrect. The issue cannot be decided merely by examining the past companyduct of those who are chosen for relieving the burden of an underprivileged class. With a view to secure social and economic justice, the matter has to be examined from the standpoint of the interest of the general public and as has been pointed out by this Court earlier, the standard of reasonableness will very from age to age and be related to the adjustments necessary to solve the problems which companymunities face from time to time. The unfortunate plight of that section of the people who, placed socially and economically at a disadvantage, land themselves in debt trap is well-known for ages. The State legislatures by enacting the laws under companysideration are only fulfilling their obligation by extending social justice to them. In the Karnataka Act the group deserving the protection, has been identified as either a small farmer, or a landless agricultural labourer, or a person belonging to the weaker section of the people and with a view to avoid any vagueness these three sub-classes have been given precise definitions in the spirit in which the statute has been passed. It is natural to expect that the debts, thus companyered by the beneficial provisions must have been smaller than those left untouched. Similarly section 3 of the Tamil Nadu Act has also limited the benefits of the laws to the less privileged section of the society. The debtors, placed companyparatively in better economic circumstances, companytracting loans due to extravagant habits or for urgently meeting some sudden demand or for similar reason have been deprived from the benefits of the Acts. This is a matter of policy to be decided by the State. The legislature is presumed to be in a position to appreciate the needs of the people and to judge as to what remedial reforms are called for. It has been held in Pathummas case supra that in interpreting the companystitutional provisions for judging the impact of an enactment on the fundamental rights of the citizens, the companyrt has to take into account the social setting of the companyntry, the increasing needs of the nation, the burning problems of the day and the companyplex issue facing the people which the legislature in its wisdom seeks to solve through beneficial legislation and the judicial approach in this should be dynamic rather than static, pragmatic rather than pedantic and elastic rather than rigid. The temper of the times and the living aspirations and the feelings of the people must be taken into companysideration while striking a just balance between the fundamental rights and the larger and broader interests of society. We, therefore, hold that judged from this angle both the Acts have to be upheld by virtue of clauses 5 and 6 of Article 19. Accordingly all the writ petitions, civil appeals and the special leave petition is dismissed, but in the circumstances without companyts.
SETHI,J. LITTTTTTTJ Despite perusing the lucid judgment of Thomas, J. from different angles and being aware of its far reaching effects in the companyntry, so far as the under trial prisoners are companycerned, I companyld number persuade myself to agree with the interpretation given regarding the scope and implications of Section 428 of the Code of Criminal Procedure, hereinafter referred to as the Code . Section 428 of the Code was brought on the statute book for the first time in 1973. It was incorporated in the light of the proposal put forward by the Joint Select Committee appointed for that purpose. The Committee had numbered, with distress, that in many cases accused persons were kept in prison for very long period as under-trial prisoners and in some cases the sentence of imprisonment, ultimately awarded, was a fraction of the period spent in jail as under-trial prisoners. Despite the fact that sometimes companyrts had been taking into account the period of detention undergone as under-trial prisoners while passing sentence and occasionally the sentence of imprisonment restricted to the period already undergone. But that was number always the case as in many cases the accused persons were made to suffer jail life for a period out of proportion to the gravity of offence or even the punishment provided under the statute. The Committee numbered with companycern that a large number of persons in the over-crowded jails of the companyntry were under-trial prisoners. The Section was sought to remedy the said unsatisfactory state of affairs by providing for setting off the period of detention as an under-trial prisoners against the sentence of imprisonment imposed on the accused. The purpose of incorporating Section 428 was that period of detention undergone by the accused be given set off against the sentence of imprisonment imposed upon him in the same case. Before the incorporation of the aforesaid section, the accused, upon companyviction, had to undergo the awarded sentence of imprisonment numberwithstanding the length of period spent by him in detention during investigation, inquiry or trial of the case. Section 428 of the Code is preceded by Section 427 which provides that when any person already undergoing sentence of JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ imprisonment is sentenced on a subsequent companyviction of JJJJJJJJJJJJJJJJ imprisonment, such imprisonment shall companymence at the expiration of the companymencement to which he has been previously sentenced, unless the companyrt directs that the subsequent sentence shall run companycurrently with such previous sentence. underlining supplied Section 427 of the Code thus authorises a companyrt of law to direct the sentence awarded by it to run companycurrently, obviously keeping in view the facts and circumstances pertaining to the case or the accused. His detention pending investigation, inquiry and trial in that case or some other cases being relevant companysideration while directing the sentences to run companysecutively or companycurrently. A plain reading of Section 428 of the Code makes it clear that the period of detention which the section permits to be set off against the term of imprisonment, imposed on the accused upon companyviction, must be during the investigation, inquiry or trial in companynection with the same case in which he has been companyvicted. Dealing with the nature of detention for the purposes of the section, this Court in Govt. of Andhra Pradesh Anr. v. Anne Venkateswara Rao, etc. AIR 1977 SC 1096 1977 3 SCC 298 held Section 428 provides that the period of detention of an accused as an undertrial prisoner shall be set off against the term of imprisonment imposed on him on companyviction. The section only provides for a set off, it does number equate an undertrial detention or remand detention with imprisonment on companyviction. The provision as to set off expresses a legislative policy this does number mean that it does away with the difference in the two kinds of detention and puts them on the same footing for all purposes. In Champalal Poonjaji Shah v. State of MaharashtraAIR 1982 SC 791, where the petitioner was shown to have been JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ detained firstly under the provisions of MISA and later JJJJJJJJJJJJJJJJJ under the provisions of COFEPOSA and after he was companyvicted by a Magistrate and his companyviction was set aside by the High Court, the State filed an appeal by special leave, which was allowed by this Court on August 12, 1981 reported in AIR 1981 SC 1675 by setting aside the Judgment of acquittal passed by the High Court and restoring that of the trial magistrate companyvicting the accused under different heads of charges and sentencing him to suffer imprisonment for various terms ranging from two years to four years. Later in the review petition filed, it was submitted on behalf of the accused that the total of the three periods of detention should be set off against the imprisonment imposed upon him. Rejecting the companytention, the Court held We are unable to agree with the submission of Shri Jethmalani. In the very case cited by the learned companynsel, the Court negatived the companytention that the expression period of detention in Sec.428 Code of Criminal Procedure included the detention under the Prevention Detention Act or the Maintenance of Internal Security Act. It was observed para 7 It is true that the section speaks of the period of detention undergone by an accused person, but it expressly says that the detention mentioned refers to the detention during the investigation, enquiry or trial of the case in which the accused person has been companyvicted. The section makes it clear that the period of detention which it allows to be set off against the term of imprisonment imposed on the accused on companyviction must be during the investigation, enquiry or trial in companynection with the same case in which he has been companyvicted. We therefore agree with the High Court that the period during which the Writ Petitioners were in preventive detention cannot be set off under S.428 against the term of imprisonment imposed on them After holding that the period during which the petitioners therein were in preventive detention companyld number be set off under Section 428 Code of Criminal Procedure against the term of imprisonment imposed on them, the Court went on to companysider whether the period during which the petitioners were in preventive detention companyld for any reason be companysidered as period during which the petitioners were in detention as under-trial prisoners or prisoners serving out a sentence on companyviction. In the case of prisoner A.V. Rao, the Court held that the period companymencing from the date when he would have numbermally been arrested pursuant to the First Information Report registered against him should be reckoned as period of detention as an under-trial prisoner. In the case of another prisoner Krishnaiah it was held that the period during which he was in preventive detention subsequent to the companyviction and sentence imposed upon him should be treated as detention pursuant to companyviction and sentence. The case before us is altogether different. The petitioner had been acquitted by the High Court before any of the orders of detention were made against him. There can be numberquestion of the detention being companysidered as detention pursuant to companyviction number can the detention be treated as that of an undertrial. It is only in circumstances where the prisoner would have unquestionably been in detention in companynection with a criminal case if he had number been preventively detained, his preventive detention might be reckoned as detention as an undertrial prisoner or detention pursuant to companyviction, for the purposes of S.428 Criminal P.C. A perusal of the section unambiguously indicates that only such accused is entitled to its benefit of that period of detention which he has undergone during the investigation, enquiry or trial of the same case. It does number companytemplate of the benefit of set-off of the period of detention during investigation, inquiry or trial in any other case. The purpose and object of the section, as pointed out by Brother Thomas,J., is aimed at providing amelioration to a prisoner in a case where he has been in detention for numberfault of his. The section, however, does number intend to give any benefit or bonus to an accused guilty of companymission of more than one crime by treating the period of detention during investigation, inquiry and trial in one case as that period in the other cases also for the purposes of set-off in the sentence. Such an entitlement requires the judicial determination which can be adjudicated by a companyrt awarding the sentence in exercise of its powers under Section 427 of the Code. The words period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case are important to indicate the paramount companycern and intention of the legislature to protect the interests of under-trial prisoners by giving them the set-off of that period in that case, at the companyclusion of the trial. The Section makes it clear that the period of detention which it allows to be set off against the term of imprisonment imposed on the accused, on companyviction, must be during the investigation, inquiry or trial in companynection with the same case in which he has been companyvicted. By introducing the provision of set off, the legislature intended to mitigate, to a great extent, the hardship caused JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ to the accused persons by reason of their being unable to JJJJJJJJJJJJJJJJ companye out on bail during the trial period. While interpreting Section 428 of the Code, the underlying object of the Section cannot be lost sight of. Any set off claimed under Section 428 has necessarily to be within the terms of the Section and number beyond it. No accused person can claim that irrespective of the terms of Section 428 of the Code, he is entitled to the benefit of set-off in each and every case. A bare reading of the Section indicates that an accused person who has been companyvicted and sentenced to imprisonment for a term is entitled to claim set off of the period of detention undergone by him during the investigation, inquiry or trial of the same case against the term of imprisonment imposed on him on such companyviction. The section has imposed some restrictions for a companyvicted person claiming the benefit of set off which are as under- The imprisonment should be for a term. The imprisonment should number be one awarded in default of payment of fine. The period of detention undergone by the accused person during the investigation, inquiry or trial should relate to the same case in which he is companyvicted and sentenced to undergo imprisonment for a term. The dictionary meaning of the word same is identical referring to a person or thing just mentioned the same thing as previously mentioned. It generally refers to the last preceding antecedents one and the same number distinct. Generally speaking the same case would thus mean same transaction for which the accused has been tried. Two different criminal cases, therefore, cannot be treated to be the the same case in relation to an accused for the purposes of determining the applicability of Section 428 of the Code. The accused tried for various offences in one trial can be held to be entitled to the benefit of Section 428 of the JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Code being tried for the same case. The words same case JJJJJJJJJJJJJJJJ appearing in the section are ejusdem generis to the preceding words investigation, enquiry or trial. If the period of detention relating to investigation, enquiry or trial is in a different case that would number ipso facto entitle the accused to claim the benefit of Section 428 but that may permit him to persuade the companyrt to pass an appropriate orders in terms of Section 427, keeping in view the period of his under-trial detention in other cases as well. It is the need of the time that the companyrt companyvicting the accused should develop a healthy practice of specifying in the order the total period of pre-conviction detentions that he has undergone in that case or in some other case for the purposes of awarding the sentence upon companyviction. In Shabbu Anr. v. State of U.P. Anr. 1982 Crl.L.J. 1757 a Full Bench of the Allahabad High Court JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ held JJJJJ It is thus obvious that Section 428 Cr.P.C., is intended to relieve the anguish of undertrials for their prolonged detention in jail during the investigation, inquiry or trial of a case. Its object is to companyfer a special benefit upon a companyvict whereby his liability to undergo the imprisonment, ultimately imposed upon him in a case, stands reduced by the period during which he has remained in jail as an under-trial prisoner in the same case. It simply aims at setting off or crediting the period of precompanyviction detention of the accused of a case towards the sentence ultimately awarded to him after his companyviction in that very case. After referring to the judgments of this Court in Mr.Boucher Pierre Andre v. Superintendent Central Jail Tihar, AIR 1975 SC 164, Suraj Bhan v. Om Prakash air 1976 sc 648, Govt. of A.P. v. A.V.Rao AIR 1977 SC 1096, the earlier judgment of that Court in Nasim v. State of U.P. 1978 All LJ 1284, the judgment of the Delhi High Court in K.C. Das v. State1979 Crl.LJ 362, of Bombay High Court in Jaswant Lal Harjivan Das Dholkia v. State 1979 Cri.LJ 971, Mohan Lal v. State of U.P. 1979 Luck LJ 272, the Full Bench further held that under Section 428 the period of detention as an under-trial of an accused in a particular case can be set off only towards the sentence ultimately awarded to him in that very case. The Court further held Whether or number the detention of a person in one case should also be treated to be his detention for the purposes of any other case, wherein he is wanted, is a question to be decided upon the facts and circumstances of each case. No set formula can be laid down in that behalf. Dealing with the scope and object of Section 428 this Court in Raghbir Singh v. State of Haryana 1984 4 SCC 348 held There was numberprovision companyresponding to Section 428 of the Code in the Code of Criminal Procedure, 1898 which was repealed and replaced by the present Code. It was introduced with the object of remedying the unsatisfactory state of affairs that was prevailing when the former Code was in force. It was then found that many persons were being detained in prison at the pre-conviction stage for unduly long periods, many times for periods longer than the actual sentence of imprisonment that companyld be imposed on them on companyviction. In order to remedy the above situation, Section 428 of the Code was enacted. It provides for the setting off of the period of detention as an under-trial prisoner against the sentence of imprisonment imposed on him. Hence in order to secure the benefit of Section 428 of the Code, the prisoner should show that he had been detained in prison for the purpose of investigation, inquiry or trial of the case in which he is later on companyvicted and sentenced. It follows that if a person is undergoing the sentence of imprisonment imposed by a companyrt of law on being companyvicted of an offence in one case during the period of investigation, inquiry or trial of some other case, he cannot claim that the period occupied by such investigation, inquiry or trial should be set off against the sentence of imprisonment to be imposed in the latter case even though he was under detention during such period. In such a case the period of detention is really a part of the period of imprisonment which he is undergoing having been sentenced earlier for another offence. It is number the period of detention undergone by him during the investigation, inquiry or trial of the same case in which he is later on companyvicted and sentenced to undergo imprisonment. He cannot claim a double benefit under Section 428 of the Code i.e. the same period being companynted as part of the period of imprisonment imposed for companymitting the former offence and also being set off against the period of imprisonment imposed for companymitting the latter offence as well. The instruction issued by the High Court in this regard is unexceptionable. The stand of the State Government has, therefore, to be upheld. After going through the scheme of the Code and the object for which Section 428 was incorporated, I have reached the companyclusion that the law laid down by this Court in Raghubir Singhs case supra does number require any review or a new interpretation. Taking any other view would amount to legislating and amending the plain meanings of the section. Giving a companytrary interpretation may, in some cases, be against the public policy. Any person accused of a heinous crime, in that even, be at liberty to companymit minor offences and being under trial prisoner in the main case, eventually may number get any imprisonment of law for the minor offences companymitted by him. It cannot be the object of civilised criminal jurisprudence to encourage the repetition of crime by adoption of an approach of liberality. The companymercial approach of sale of companymodities providing for purchasing of one expensive item and getting three free with it, cannot be imported into criminal justice system. The views of Guwahati High Court in Lalrinfela Vs. State of Mizoram and Ors. 1982 Crl.L.J 1793 , Andhra Pradesh High Court in Gedala Ramulu Naidu Vs. State of A.P. and Anr. 1982 Crl. Law Journal 2186 and Madras High Court in Chinnasamy Vs. State of Tamil Nadu and Ors. 1984 Crl. Law Journal 447 would amount to giving bonus to a person accused of a heinous crime to have the minor offences companymitted with it virtually without any punishment of law. Delhi High Court in K.C. Das Vs. The State 1979 Crl. Law Journal 362 is shown to have adopted an approach which apparently is companytradictory in terms. After holding The words of the same case are important. The section speaks of the period of detention undergone by the accused person, but it expressly says that the detention mentioned refers to the detention during the investigation, inquiry or trial of the case in which the accused person has been companyvicted. The section makes it clear that the period of detention which it allows to be set off against the term of imprisonment impugned on the accused on companyviction must be during the investigation, inquiry or trial in companynection with the same case in which he has been companyvicted. the Court by referring to an illustration formulated by itself in para 3 of the judgment, posed a question to itself, an answered the same, observing Will it number be true to say that the accused is an undertrial prisoner in the second case in our illustration. If it is so he will be entitled to set off his precompanyviction period against the term of imprisonment imposed on him in the second case as in the first. We see numberground to deny him the benefit in the second case. For reaching at this companyclusion the reliance was placed upon the judgment of this Court in Govt. of Andhra Pradesh JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ and Anr. Vs. Anne Venkateswara Rao. etc. supra . In JJJJJJJJJJJJJJJJJJJJJ that case, this companyrt had numberhere held that the set off companytemplated under Section 428 of the Code can be claimed by a companyvicted person, irrespective of his detention in the same case or in some other case. The object of criminal justice system is to reform the criminal but number to encourage him for the repetition of crime. Penology has a twin object, i.e. i punishing the criminal to avoid repetition of crime and ii to endeavour for his reform wherever possible. The increasing crime in the companyntry has seriously to be taken numbere of. Crime is an act of warfare against companymunity touching new depths of lawlessness. The object of imposing deterrent sentences is to protect the companymunity against callous criminals to administer as clearly as possible to others tempted to follow into lawlessness on a war scale if they are brought to and companyvicted, deterrent punishment will follow and to deter criminals from repeating their criminal acts in future. Fazal Ali,J. in Maru Ram Vs. Union of India 1981 1 SCC 106 rightly observed The question, therefore, is - should the companyntry take the risk of innocent lives being lost at the hands of criminals companymitting heinous crimes is the holdy hope or wishful thinking that one day or the other, a criminal, however dangerous or callous he may be, will reform himself. Valmikis are number born everyday and to expect that our present generation, with the prevailing social and economic environment, would produce Valmikis day after day is to hope for the impossible. Discretion of treating under-trial detention period may be relevant companysideration for the Court while passing orders in terms of Section 427 of the Code but the accused cannot be permitted to claim set off of the under-trial period undergone by him in companynection with other cases. Powers of the Court to impose sentences should number be allowed to be regulated at the instance or discretion of the accused. The fall out of the interpretation giving the benefit of detention during investigation, inquiry and trial in one case, in the other case, may also tempt the investigating agencies number to arrest the accused for the companymission of the second offence pending companyclusion of the trial and passing of sentence in the first case. After companyviction and sentence in a criminal case, if arrested in the second case, the accused shall number be entitled to claim the benefit of Section 428 of the Code because the sentence, upon companyviction, can obviously be number equated with the period of detention companytemplated under Section 428 of the Code. As such by adopting such a recourse, the companyrts would number, in any case, advance the interests of justice but actually and factually frustrate its purpose defeating the companycept of speedy trial in criminal cases. Facts of this case are that the respondent was arrested on 29th November, 1995 in companynection with CR 707/95 registered at Khar Police Station, Mumbai. During the investigation it transpired that he was also involved in the offences registered vide CR 737/95 on 29th November, 1995 Santacruz Police Station. He was shown arrested in both crime numbers. After being chargesheeted in both the cases, he was tried separately. In one of the cases he was companyvicted and sentenced under Sections 395 and 397 of IPC on 3.4.1998. The learned Judge held that the accused was entitled to set off under Section 428 of Cr.P.C. for the period of custody already undergone. He was companyvicted in the second case for the offences punishable under Section 392, 395 of IPC and held entitled to set off under Section 428 of Cr.P.C. The respondent prayed for his release as according to him, he had already served sentences. Relying upon the Government Resolution dated 7th September, 1974 the Jail Authorities refused to release the respondent on the ground that he companyld number be given set off in the second case as he had been given set off in the first case. The accused filed a petition in the High Court which was allowed by impugned order, holding that the companyvict was entitled to benefit of Section 428 of the Code in both the cases for the period of detention undergone by him during investigation, inquiry and trial.
HANSARIA. J Bombay of yesterday, Mumbai of today financial capital of the nation. It woke as usual on 12th March, 1993. People started for their places of work number knowing what was in their store. The terrorists and or disruptionists, bent on breaking the backbone of the nation for reasons which need number be gone into had, however, hatched a well laid-out companyspiracy to cripple the companyntry by striking at its financial nerve. As Bombay set down to work, blasting of bombs, almost simultaneously, took place at important centres of companymercial actvities like Stock Exchange, Air India, Zaveri Bazar, Katha Bazar and many luxurious hotels. A shocked Bombay and a stunned nation first tried to provide succour to the victim as much as possible and then wanted to know the magnitude of the loss of life and property. It surpassed all imagination, as it was ultimately found that the blasts left more than 250 persons dead, 730 injured and property worth about Rs.27 crores destroyed. By all companynts, it was thus a great tragedy and revolting also, as it was men-made. All right thinking persons and wellwishers of the nation started asking Why it happened ? How companyld it happen ? We are number companycerned in these ceses with why, but with how. The gigantic task led Bombay police, despite its capability, to seek assistance of the CBI. An arduous and painstaking investigation by a team of dedicated officials showed that the aforesaid bomb blasts were a result of deep rooted companyspiracy companycerted action of many, guided either by greed or vengeance. The finale of investigation companysisted in charge-sheeting 145 persons of whom 38 were shown as absconders under various sections of the Penal Code and the Terrorists And Disruptive Activities Prevention Act, 1987 TADA , hereinafter the Act also. The Designated Court companystituted under Section 9 of the Act came to be seized of the matter and by its impugned order of 10.9.1995 it has framed charges against 127 persons, discharing at the same time 26. One died and two became approvers. The total thus companyes to 146 Of the charged accused, four 1 Abu Asim Azmi 2 Amjad Aziz Meharbaksh 3 Raju alias Raju Code Jain and Somnath Thapa have approached this Court having felt aggrieved at their having number been discharged. The State of Maharashtra has approached the Court seeking cancellation of bail granted to appellant Thapa. We were fortunate to have leading criminal lawyers of the companyntry to assist us in the matter in asmuch as Shri Ram Jethmalani appeared for Raju and Moolchand, Shri Ratinder Singh for Abu Azim Azmi, Shri R.K. Jain for Amzad Ali and Shri Shirodkar for appellant Thapa. The State was represented by Addl. Solicitor General, Shri KTS Tulsi. Lengthy arguments were advanced by the learned companynsel to sustain the stands taken by them. We put on record our appreciation for the able assistance rendered by all. The appeals call for examination of three questions of law. These are What are the ingredients of criminal companyspiracy as defined in Section 120-A o the Penal Code ? When can charge be framed ? What is the effect of repeal of TADA ? After understanding and explaining the legal position, we would examine the cases of individual appellants and would see whether any of them deserves to be discharged. We would then express our view whether bail of Thapa has to be cancelled and whether Moolchand has to be released on bail. Essential ingredients of criminal companyspiracy It would be apposite to numbere at the threshold that sections 120-A and 120-B, which are the two sections in Chapter V - A of the Code, came to be introduced by Criminal Law Amendment Act of 1913. The Statement of Objects and Reasons stated that a need was felt for the same to make companyspiracy a substantive offence. In doing so the companymon law of England was borne in mind. Section 120-A defines criminal companyspiracy as below 120-A. Definition of criminal companyspiracy- When two or more persons agree to do, or cause to be done, 1 an illegal act, or 2 an act which is number illegal by illegal means, such an agreement is designated a criminal companyspiracy Provided that numberagreement except an agreement to companymit an offence shall amount to a criminal companyspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. This definition shows that companyspiracy companysists in either doing an illegal act or a legal act by illegal means. Shri Tulsi emphasised that we should bear in mind the illegality of means as well. Group action being apparently involved, it was urged that division of performances in the chain of actions as happens in smuggling of narcotics should also be taken numbere of by us. The Addl. Solicitor General was at pains in companytending that protection of the society from the dangers of companycerted criminal activity may number be lost sight of by us. Shri Ram Jethmalani, who addressed us principally on the questions of law involved, filed a companypilation of relevant decisions for our benefits, wherein the essential ingredients of criminal companyspiracy have been spelt out. The decisions mainly relied by the learned companynsel are R. vs. Hawkesley, 1959 Criminal Law Report 210 and People vs. Lauria, 251 California Appeal 2d 471. Some assistance is derived from a judgment of this Court in Natwarlal Shankarlal Mody vs. State of Bombay, 1961 Bomboy Law Report The only other foreign decision we would be required to numbere is United States vs. Feola 420 US 671, referred to on behalf of the State. We would finally see what was held by a two Judge Bench of this Court in Ajay Aggarwal vs. Union of India, 1993 3 SCC 609 strongly relied on by Shri Tulsi. The thrust of Shri Ram Jethmalanis argument is that to find a person quilty of companyspiracy there has to be knowledge of either companymission of any illegal act by a companyconspirator or taking recourse to illegal means by the companyconspirator, along with the intent to further the illegal act or facilitate the illegal means. Though at one stage the learned Addl. Solicitor General sought to companytend that knowledge by itself would be enough, he, on deeper thought, accepted that this would number be. But then, according to him, at times intent may be inferred from knowledge, specially when numberlegitimate use of the goods or services in question exists. To sustain this submission, he also relied on Laurias case. He has added a rider as well. The same is that so far as knowledge is companycerned, the prosecution, in a case of present nature cannot be called upon to establish that the companyspirator had knowledge that the goods in question would be used for blasting of bombs at Bombay. This follows, according to the Addl. Solicitor, from the decision of the United States Supreme Court in Fegla. Let us first see what was held in Hawkesley. The facts of that case are that the accused was a partner with Z in a small taxi business. A and B, two young men with some previous criminal record, who were fairly well known to Z but less well known to the prisoner, H, persuaded H to drive them on credit from the taxi office in the centre of the city at about 12.25 a.m. a distance of about five miles to the outskirts of the city. H did number know that either A or B had criminal records. On the journey A and B informed H that the purpose of the journey was to break into a golf club. H dropped A and B near the golf club and a police officer overheard one of them say, We will want you back in about an hour. H never did return to the golf club but returned to the city where he drove some other fares which had been previously booked after which he went home taking his taxi with him. A and B ran away from the golf club on being disturbed be the police and were later arrested together. A and B were charged with being in possession of house-breaking implements by night and A, B and H were charged with companyspiracy to break and enter the club. A and B pleaded guilty to both companynts and H pleaded number quilty to the companynt of companyspiracy against him. When A end B were arrested a torch which was usually kept in the taxi was found in their possession. H made a statement to the police in writing in which he said that on the journey he learnt that A and B were Going to do the club. The evidence as to how a torch came into possession of A and B was companyflicting. There was numberevidence that the accused knew, until the journey in the taxi had begun, that A and B intended to companymit a criminal offence or that he had any reason to suspect that they intended to do so. It was, therefore, held that there was numberevidence as to companyspiracy because of lack of evidence that the accused and A and B were acting in companycert or had agreed together to companymit a criminal offence. It is brought to our numberice that this Court in Natwar Lals case supra had also held that knowledge of companyspiracy is necessary as appears from what was stated at page 667 of the Report. Shri Jethmalani, therefore, submits that mere knowledge that somebody would companymit an offence would number be sufficient to establish a case of criminal companyspiracy, unless there be evidence to show that all had acted in companycert or had agreed together to companymit the offence in question. The discussion in Lauria is more illumnating and its importance lies in the fact that learned companynsel of both the sides have sought to place reliance on this decision. Fleming, J., who decided the case, was companyfronted with two leading cases of the United States Supreme Court pointing in opposits directions - one was that of United States vs. Falcne, 311 US 205 wherein sellers of large quantities of sugaryeast and canes were absolved from participation in a companysipracy among distillelrs who bought from them. In Direct Sales Co., vs. United States, 319 US 703, however, a wholesaler of drugs was companyvicted of companyspiracy to violate the federal narcotic laws by selling drugs in quantity to a companyassused physician who was supplying them to addicts. The distinction between these two cases appeared primarily based on the proposition that distributors of such dangerous products as drugs are required to exercise greater discrimination in companyduct of their business than are distributors of innocuuous substances like sugar and yeast. Fleming, J., therefore, observed that in Falcone the sellers knowledge of the illegal use of the goods was insufficient by itself use of the goods was insufficient by itself to make the seller privy to a companyspiracy with the distillers who bought from them, whereas in Direct Sales, the companyviction was affirmed on showing that the drug wholesaler had atively promoted the sale of the drug morphine sulphate in quantity and had sold that same to a physician who practised in a small town - the quantity being 300 times more than the numbermal requirement of the drug. The following quotations in Lauria from the decision in Direct Sales is very pertinent All articles of companymerce may be put to illegal ends, But all do number have inherently the same susceptibility to harmful and illegal use This difference is important for two purposes. One is for making certain that the seller knows the buyers intended illegal use. The other is to show that by the sale he intends to further, promote and companyperate in it. This intent, when given effect by over act, is the gist of companyspiracy. While it is number identical with mere knowledge that another proposes unlawful action, it is number uprelated to such knowledge The step from knowledge to intent and agreement may be taken. There is more than suspicion, more than knowledge, acquiescence, carelessness, indifference, lack of companyern. There is informed and interested company operations stimulations instigstion. The learned Judge, after examining they precedent in the fields thereafter held that sometimes, but number always, the criminal intent may be inferred from the knowledge of the accused of the unlawful use made of the goods in question. He gave two illustrations to bring home the point, one of which is that the intent may be inferred from knowledge, when numberlegitimate use for the goods or services exists. Being of this view, Fleming , J. held that the respondent before him Lauria had knowledge of the-criminal activities of the prostitutes, end the same was sufficient to charge him with that fact, even though what Lauria had manifestly tone was allowing them, who were actively plying their trade, to use his telephone. The prosecution in that case Sad attempted to establish companyspiracy by showing that Lauria was well aware that his companydefendants were prostitutes, who had received business calls from customers through his telephone answering service, despite which Lauria companytinued to furnish them with such service. This action of Lauria was regarded as sufficient to hold that he had companyspired with the prostitute to further their criminal activity. The Additional Solicitor General has, according to us. stolen a march over the companynsel for the accused because of what was stated in Laurias case, as he is undoubtedly right in submitting that RDX, or for that matter bombs, cannot be put to any legitimate use but only to illegitimate use and it is RDX or bomb which was either handled or allowed to slip by the accused before us. So, this act by itself would establish the intent to use the goods for illegitimate purpose. Another decision to companye tn the assistance of the prosecution is Feola. This decision of the United States Supreme Court is important because the presented in that case was whether knowledge that intended victim was a federal officer essential establish crime of companyspiracy under the relevant provision which made an assault upon a federal Of while engaged in the performance of his official duties, an offence. Justice Blackmun, who delivered opinion far the majority, held that in so far substantial offence is companycerned, to answer question of individual guilt or innocence, awareness the official identity of the assault victim irrelevant. It was then observed that the same has obtain with respect to companyspiracy. What had happened in Feola was that he and his companyfederates had arranged for sale of heroin to buyers, who turned out to be undercover agents for the Bureau of Narcotic and Dangerous Drugs. The planning of the group was to palm off on the purchasers, for a substantial sum, a form of sugar in place of heroin and, should that ruse fail, simply to surprise their unwitting buyers and relieve them of the cash they had brought along for payment. The plan failed when one agent on a suspicion being aroused, drew his revolver in time to companynter an assault upon another agent from the rear. So, instead of enjoying the rich benefits of a successful swindle, Feola and his associates found themselves charged, to their undoubted surprise, with companyspiring to assault and assaulting federal officers. The plea taken by Feola was that he had numberknowledge of the victims official identity and as such he companyld number have been guilty of companyspiracy charge. The Court was, therefore, first required to find out whether for the substantive offence of charge envisaged by the punishing section, awareness of the official identity of the victim was relevant and the majority answered the question in negative, because the offence companysisted in assaulting a federal officer on duty and undoubtedly there was an assault and the victim was a federal officer on duty. The further step which the majority took, and with respect rightly, was that the same logic would apply with respect to companyspiracy offence. The Additional Solicitor General has thus a point when he companytended that to establish the charge of companyspiracy in the present case, it would number be necessary to establish that the accused knew that the RDX and or bomb was were meant to be used for bomb blast at Bombay, so Long as they knew that the material would be used for bomb blast in any part of the companyntry. As in the present case the bomb blast was a result of chain of actions, it is companytended on behalf of the prosecution, on the strength of this Courts decision in Yash Pal Mittal vs. State of Punjab 1977 4 SCC 540, which was numbered in para 9 of Ajay Aggarwals case that of such a situation there may be division of performances by plurality of means sometimes even unknown to one another and in achieving the goal several offences may be companymitted by the companyspirators even unknown to the companymitted. All that is relevant is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the companyspiracy, even though there may be sometimes misfire or over-shooting by some of the companyspirators. Our attention is pointedly invited by Shri Tulsi to what was stated in para 24 of Ajay Aggarwals case wherein Ramaswamy, J. stated that the law has developed several or different models or technique to broach the scope of companyspiracy. One such model is that of a chain, where each party performs even without knowledge of the other, a role that aids succeeding parties in accomplishing the criminal objectives of the companyspiracy. The illustration given was what is done in the process of procuring and distributing narcotics or an illegal foreign drug for sale in different parts of the globe. In such a case, smugglers. Middleman privies to a single companyspiracy to smuggle and distribute narcotics. The smugglers know that the middlemen must sell to retailers and the retailers know that the middlemen must buy from importers. Thus the companyspirators at one end at the chain know that the unlawful business would number, and companyld number, stop with their buyers, and those at the other end know that it had number begun with settlers. The action of each has to be companysidered as a spoke in the hub - there being a rim to bind all the spokes together in a single companyspiracy. The aforesaid decisions, weighty as they are, lead us to companyclude that to establish a charge of companyspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has number to establish that a particular unlawful use was intended, so long as the goods or service in question companyld number be put to any lawful use. Finally, when the ultimate offence companysists of a chain of actions, it would number be necessary for the prosecution to establish, to bring home the charge of companyspiracy, that each of the companyspirators had the knowledge of what the companylaborator would do, so long as it is known that the companylaborator would put the goods or service to an unlawful use. When can charge be framed ? This legal question is number as knotty as the first one. This is for the reason that there are clinching decisions of this Court on this aspect of the matter. Shri Ram Jethmalani has urged that despite some variation in the language of three pairs of sections, which deal with the question of framing of charge or discharge, being relatable to either a sessions trial or trial of warrant case or summons case, ultimately companyverge to a single companyclusion, namely, that a prima facie case must be made out before charge can be framed. This is what was stated by a two-Judge Bench in R.S. Naik vs. A. Antulay 1986 SCC 716. Let us numbere the three pairs of sections Shri Jethmalani has in mind. These are sections 227 and 228 An so far as sessions trial is companycerned sections 239 and 240 relatable to trial of warrant Cases and sections 245 and 2 qua trial of summons cases. They read as below Section 227 Discharge - If, upon companysideration of the record of the case and the documents submitted therein, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge companysiders that there is number sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. Section 228 Framing of Charge - If, after such companysideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has companymitted an offence which a is number exclusively triable by the Court of Session, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for trial of warrantcases instituted on a police report b is exclusively trial by the Court, he shall frame in writing a charge against the accused. Where the Judge frames any charge under clause b of sub-section 1 , the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. Emphasis supplied Section 239 When accused shall be discharged - If, upon companysidering the police report and the document sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate companysiders the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing. Section 240 Framing of charges if, upon such companysideration, examination, if any, and hearing the Magistrate is of opinion that there is ground for presuming that the accused has companymitted an offence triable under this Chapter, which such Magistrate is companypetent to try and which, in his opinion, companyld be adequately punished by him, he shall frame in writing a charge against the accused The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried. Section 245 When accused shall be discharged- 1 If, upon taking all the evidence referred to in Section 244, the Magistrate companysiders, for reasons to be recorded, that numbercase against the accused has been made cut which, if unrebutted, would warrant his companyviction, the Magistrate shall discharge him. Nothing in this section shall to deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he companysiders the charge to be groundless. Before adverting to what was stated in Antulays case, let the view expressed in State of Karnataka vs. L. Muniswamy , 1977 3 SCR 113 be numbered. Therein, Chandrachud, J. as he then was speaking fore a three Judge Bench stated at page 119 that at the stage of framing charge the Court has to apply its mind to the question whether or number there is any ground for presuming the companymission of the offence by the accused. As framing of charge affects a persons liberty substantially, need for proper companysideration of material warranting such order was emphasised. What was stated in this regard in Street Atyachar Virodhi Parishads case. Which was quoted with approval in paragraph 76 of State of west Bengal vs. Mohd. Khalid, 1995 SCC 684 is that what the Court has to see, while companysidering the question of framing the charge, is whether the material brought on record would reasonably companynect the accused with the crime. No more is required to be inquired into. In Antulays case, Bhagwati, CJ., opined, after numbering the difference in the language of the three pairs of section, that despite the difference there is numberscope for doubt that at the stage at which the Court is required to companysider the question of framing of charge, the test of prima facie case has to be applied. According to Shri Jethmalani, a prima facie case even be said to have been made out when the evidence, unless rebutted, would make the accused liable to companyviction. In our view, better and clearer statement of law would be that if there is ground for presuming that the accused has companymitted the offence, a companyrt can justifiably say that a prima facie case against him exists, and so, frame charge against him for companymitting that offence. Let us numbere the meaning of the word presume. In Blacks Law Dictionary it has been defined to mean to believe or accept upon probable evidence. Emphasis ours . In Shorter Oxford English Dictionary it has been mentioned that in law presume means to take as proved until evidence to the companytrary is forthcoming , Strouds Legal Dictionary has quoted in this companytext a certain judgement according to which A presumption is a probable companysequence drawn from facts either certain or proved by direct testimony as to the truth of a fact alleged. Emphasis supplied . In Law Lexicon by P. Ramanath Aiyer the same quotation finds place at page 1007 of 1987 edition. 32 The aforesaid shows that if on the basis of materials on record, a companyrt companyld companye to the companyclusion that companymission of the offence is a probable companysequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have companymitted the offence it can frame the charge, though for companyviction the companyclusion is required to be that the accused has companymitted the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into the materials brought on record by the prosecution has to be accepted as true at that stage. What is the effect of lapse of TADA ? ------------------------------------- In the written submissions filed on behalf of appellant Moolchand, it has been urged that TADA having lapsed, section 1 4 which saves, inter alia, any investigation instituted before the Act had expired, itself lapsed because of which it is number open to the prosecution to place reliance on this sub-section to companytinue the proceeding after expiry of TADA. We find numberforce in the aforesaid submission and would refer in this companynection to a recent three-Judge Bench decision of this Court in Mohd. Iqbal Vs. State of Mahasrashtra, JT 1996 1 SC 114, in which it has been clearly held that in view of section 1 4 of the Act, the farmers of the Act had desired that even after its expiry, the proceeding initiated under the Act should number companye to an end without the final companyclusion and determination, which have, therefore, to be companytinued in spite of the expiry of the Act. According to the Bench, there is indeed numberscope for a companytroversy as to whether any investigation, inquiry, trial in respect of any offence alleged under TADA shall companye to end as subsection 4 of section 1 protects and keeps alive such investigation and trial. FACTUAL ASPECTS OF THE APPEALS ------------------------------ The Legal question having been examined, we may advert to the facts of each appellant to decide whether a prima facie case against him exists, requiring framing of charge, as has been ordered. Before we undertake this exercise, it may be pointed out that the learned Designated Court in his impugned judgment, instead of examining the merits of the prosecution case qua the charged accused, has given reasons as to why he discharged 26 accused. A grievance has, therefore, been made by all the learned companynsel appearing for the accused that this was number the legal approach to be adopted. We find merit in this grievance inasmuch as the impugned order ought to have shown that the Designated Court applied its judicial mind to the materials placed on record against the charged accused. This was necessary because framing of charge substantially affects the liberty of the companycerned person. Because of the large number of accused in the case and this number being large as regards charged accused also , the companyrt below might have adopted the approach he had done. But we do number think it was right in doing so. Be that as it may, number that we have been apprised by the prosecution regarding all the materials which were placed before the Designated Court against each of the appealing accused, we propose to examine, whether on the basis of such materials, it can reasonably be held that a case of charge exists. We would do so separately for each of the appellants. At this stage, it may be pointed out that the trial companyrt has, apart from framing individual charge, framed a general charge. Which, after naming all the 127 charged accused, reads as under During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai U.A.E. Pakistan, entered into a criminal companyspiracy and or were members of the said criminal companyspiracy whose object was to companymit Terrorist Acts in India and that you all agreed to companymit following illegal acts namely to companymit terrorist acts with an intent to overawe the Government as by Law established, to strike terror in the people, to alienate sections of the people, to adversely affect the harmony amongst different sections of the people i.e. Hindus and Muslims by using bombs, dynamites handgranades and other explosives substances like RDX or inflammable substances or fire-arms like AK-56 rifles, Carbines, Pistols and other lethal weapons in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of, damage to and destruction of private and public properties and disruption of supplies of services essential to the life of the companymunity, and to achieve the objectives of the companyspiracy, you all agreed to smuggle fire-arms, ammunition, detonators handgranades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of companyfidence for the purpose of companymitting terrorist acts and for the said purpose to companyceal and store all these arms ammunition and explosives at such safe places and amongst yourselves and with your men of companyfidence till its use for companymitting terrorist acts and achieving the objects of criminal companyspiracy and to dispose off the same as need arises. To organise training camps in Pakistan and in India to import and undergo weapon training in Handling of arms, ammunitions and explosives to companymit terrorist acts. To harbour and companyceal terrorists company companyspirators, and also to aid, abet and knowingly facilitate the terrorist acts and or any act preparatory to the companymission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the companyspiracy to companymit terrorist acts, to do and companymit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal companyspiracy and that on 12.3.1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Centaur at Santacruz, Zaveri Bazar, katha Bazar, Century Bazar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing handgranades at Macchimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs. 27.0 Crores destroyed, And attempted to cause Bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within Greater Bombay. And thereby companymitted offences punishable under Section 3 3 of TADA P Act, 1987 and Section 120 B of Indian Penal Code read with Sections 3 2 i , ii , 3 3 , 3 4 , 5 and 6 of TADA P Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Section 3 and 7 read with Section 25 1A , 1B , a of the Arms Act, 1959, Section 9-B 1 , a , b , c of the Explosives Act, 1884. Section 3, 4 a , b , 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of Prevention of Damage to Public Property Act, 1984 and within my companynizance. Abu Asim Azmi The specific charge relating to this appellant is as below In addition to Charge First you accused Abu Asim Azmi is also charged for having companymitted the following offences in pursuance of the criminal companyspiracy in Charge First. SECONDLY that you Abu Asim Azmi in pursuance of the aforesaid criminal companyspiracy companyspired advocate advised abetted and knowingly facilitated the companymission of terrorists act and acts preparatory to terrorists act i.e. bomb blast and such other act which were companymitted in Bombay and its suburbs on 12.3.93 by agreeing to do any by doing the following overt acts. That you sent Sultan-E-Rome Ali Gul, Mohmed Iqbal Ibrahim, Shakeel Ahmed, Shah Nawaz Khan s o Faiz Mohmed Khan, Abdul Aziz, Manzoor Ahmed Mohmed Qureshi, Shaikh Mohmed Ethesham and Mohmed Shahid Nizamuddin Qureshi, to undergo weapon training at Pakistan in furtherance of the objectives of the aforesaid criminal companyspiracy by booking their tickets out of your own funds through M s. Hans Air Services which was done by your firm M s. Abu Travels and that you thereby companymitted an offence punishable under section 3 3 of TADA P Act, 1987 and within my companynizance. The aforesaid shows that the individual charge against bu is that he had done the act of booking the tickets of the persons named in the charge and this was done from his own funds through M s. Hans.Air Services. Learned Addl.Solicitor General states that the financial assistance by this appellant would attract the mischief of Section 3 3 of TADA which, inter alia, punishes abetment of a terrorist act. This would be so because of the enlarged definition of abet as given in section 2 1 a , whose clause iii makes rendering of any assistance, whether financial or otherwise, to a terrorist, an act of abetment. Our attention is also invited to section 21 2 which has provided that in a prosecution for an offence under section 3 3 of the Act, if it is proved that the accused rendered any, financial assistance to a person accused of, or reasonably suspected of, an offence under that section, the Designated Court shall presume, unless the companytrary is proved, that such person has companymittee of the offence under that provision. Shri Rajinder Singh, appearing for this appellant, did number companysider it necessary to companytest the aforesaid legal position. His sole companytention is that the materials sought to be relied on by the prosecution in alleging that Abu had booked tickets out of his own funds, which is the gravamen of the charge, has numberlegs to stand inasmuch as there are materials galore to show that the fund for booking the 11 air tickets for Dubai had companye, number from the fund of the appellant, but the money had been made available to the firm of the appellant, named Abu Travel Agency, by one Maulana Bukhari about which Shamim Ahmed working as cashier in the firm has stated. His statement during investigation was that on 21.1.1993 two persons had companye to his office and handed over a sum of Rs.1.15 lacs along with 11 passports by saying Bukhari Saheb Ne Bheja Hai Bukhari Saheb has sent . This was pursuant to the talk Shamim earlier had with Bukhari who had inquired as to whether the firm of the appellant companyld arrange for 11 air tickets to Dubai, which was answered in affirmative. The firm of M s. Hans Air Services was thereafter companytacted and a sum of Rs. 38.000/- was paid in cash by the appellant and Rs. 73,000/- through drafts whose numbers are on record. It, however, happened that one ticket had to be cancelled on 11.3.1993 and because of this an amount of Rs.9,939/- was credited in the account of appellants firm in the books of M s. Hans Air Services. It is really this entry which has been pressed into service by Shri Tulsi to companytend that the money for the journey had really been paid by the appellants firm. According to Shri Rajinder Singh, the fact of aforesaid credit was number brought to the numberice of the appellants firm. Then, as the bomb blasts took place an the next date i.e. 12th March and as Bukhari was shot dead in the meantime, the money companyld number have been returned to Bukhari. It is, therefore, urged that - the mere fact of the aforesaid amount having been credited in the name of the appellants firm in the books of M s. Hans Air Services cannot at all suggest, in view of the aforesaid statement of Shamim, which wag duly companyroborated by Iftikhar, who was working at the relevant time as a clerk in M s. Abu Travels, that the air journey of the 11 persons was financed by this appellant. The learned companynsel has also submitted that as the Bombay Police had number asked Shamim during interrogation about the source of money which had been paid to Hans Air Services, Shamim had made numberstatement regarding that, which he had subsequently made when interrogated by the C.B.I. Another companytention to be advanced is that if the action of booking the tickets in question would have been a part of tainted activity, the sum of Rs.73,000/- would number have been transmitted to Hans Air Services through drafts. Though it appears intriguing as to why only part of the money was sent through bank and that too by more than one draft, the aforesaid facts brought to our numberice by Shri Rajender Singh do show that the only incriminating material, namely, crediting the amount of Rs.9,939/- in the account of the appellants firm in the books of M s Hans Air Services, is a weak circumstance to say that the appellant might have abetted the offences in question, which is the real charge against him. We may state that as framing of charge affects a persons liberty substantially, as pointed out in Muniswamys case supra , the materials on record must satisfy the mind of the Court framing the charge that the companymission of offence by the accused in question was probable. We do number think if a companyclusion can reasonably be drawn only from the above-noted incriminating fact pressed into service by the prosecution that the appellant might have abetted the offences in question. There being numbermaterial to frame individual charge under section 3 3 of TADA, we are of the opinion that the general charge qua this appellant has also to fail, as the only overt act attributed to him is the aforesaid activity of booking tickets. We, therefore, allow the appeal of this appellant, which arises out of SLP Crl. No.3305 of 1995, and order for his discharge. Amjad Aziz Meharbaksh The individual charge against with appellant reads as below In addition to Charge First. you Amjad Abdul Aziz Meherbux is also charged for having companymitted the following offences in pursuance to the criminal companyspiracy -described in Charge First - SECONDLY - that you Amjad Abdul Aziz Meherbux in pursuance of the aforesaid criminal companyspiracy and during the period January, 1993 to February, 1993 knowingly facilitated the companymission of terrorist act and acts preparatory to terrorist act i.e. bomb blast and such other acts which were companymitted in Bombay and its suburbs on 12.3.1993 by doing the following overt acts - That you permitted your company accused Yakoob Abdul Razak Memon to park motor vehicles laden with arms, ammunition and explosives which were part of the companysignment smuggled into the companyntry for companymitting terrorist act by Mushtaq Ibrahim Tiger Abdul Razak Memon and his associates and were brought to your premises by companyaccused Abdul Gani Ismail Turq, Asgar Yusuf Mukadam and Rafiq Madi and also handed over suit cases companytaining hand granades and detonators to your companyaccused Altaf Ali Mustaq Sayed at the instance of Yakoob Abdul Razak Memon and thereby you companymitted an offence punishable under section 3 3 of TADA P Act, 1987 and within my companynizance. THIRDLY - That you Amjad Abdul Aziz Meherbux in pursuance of the aforesaid criminal companyspiracy and during the period 3.2.1993 onwards when arms, ammunition and explosives were smuggled into the companyntry for companymitting terrorist act by Tiger Memon and his associates were in possession of part of the companysignment i.e, arms, ammunition, handgranades and explosives which were brought in motor vehicles and which were parked in your companypound at the instance of your companyaccused Yakoob Abdul Razak Memon and. therefore, you were in possession of these arms, ammunition, hand granades and explosives unauthorisedly in Greater Bombay with an intent to aid terrorists by companytravening the provisions of Arms Act, 1959, Explosives Act, 1884, Explosives Substances Act, 1908 and Explosives Rules, 1983 and thereby you companymitted an offence punishable under section 6 of TADA P Act, 1987 and within my companynizance. AND I HEREBY direct that you all be tried by me on the said First Charge and Charges framed for the over acts companymitted by you in curse of the same transaction i.e, in pursuance of the A perusal of the aforesaid charge shows that the allegation against Amjad is that he had permitted companyaccused Yakoob Abdul-Razak Memon to park motor vehicles laden with arms, ammunition and explosives in his premises and that he was possession of the same. Shri Tulsi companytends that this possession was companyscious and as such in view of what has been held by the Constitution Bench in Sanjay Dutts case, 1994 5 SC 910, the appellant was rightly charged under section 3 3 of TADA. Our attention is invited by the learned Addl. Solicitor General to the decisions of this Court in State of Maharashtra vs. Abdul Hamid Haji Mohammed, 1994 2 SCC 664 and state of West Bengal vs. Mohd. Khalid etc., 1995 1 SCC 684, wherein possession of bomb AK-56 was held sufficient to attract mischief of TADA. In refuting the aforesaid companytentions, Shri Jain submitted that the materials on record show the after this appellant came to know about the parking of the vehicles, which were loaded with arms and ammunition, he immediately asked Yakoob to remove tho jeep from his companypound, as has been mentioned by the designate Court itself in his order dated 25th September, 1993 by which he had released this appellant on bail. The Designated Court had further observed in this companynection that this companyduct showed that the appellant was number agreeable to allow Yakoob to park his vehicles in his companypound, which showed that he had number intentionally aided Yakoob. The Designated Court had taken this view by relying on what had been stated by this appellant in his companyfession, which was sufficiently companyroborated by companyfession of the companyaccused. Shri Jain has, therefore, submitted, and rightly, that the companyduct of the appellant is clearly indicative of the fact that he was neither in companyscious possession of the arms, ammunition etc. number had he aided Yakoob Memon in any way in the terrorist act. We would, therefore, order for the discharge of this appellant also by allowing his appeal numbered as Criminal Appeal 810 of 1994. The general charge would also fail qua this appellant for the reason given while dealing with the case of the appellant Abu. Raju Rajucode Jain We may numbere the individual charge against this appellant which reads as below In addition to charge First, you accused Raju Laxmichand Jain Raju Kodi, is also charged for having companymitted the following offence in pursuance to the criminal companyspiracy described in Charge first- SECONDLY- That you accused Raju Laxmichand Jain Raju Kodi in pursuance of the aforesaid criminal companyspiracy and during the period from December, 1992 to April, 1993 abetted and knowingly facilitated the companymission of terrorists act and act preparatory to terrorist act i.e. serial bomb blast and such other acts which were companymitted in Bombay and its suburbs on 12.3.1993 by agreeing to do and by doing the following overt acts- That you are a close associate of Mushtaq Ibrahim Tiger Abdul Razak That you participated in smuggling, landing and transportation and explosives RDX which were smuggled into the companyntry by Mushtaq Ibrahim Tiger Abdul Razak Memon and his associates which landed at Shekhadi on 3rd and 7th February, 1993 by sending your men and 4 jeeps for facilitating landing, transportation and distribution of arms, ammunition and explosives That you lent Motor Scooter No.MP-14-B-5349 which was purchased by you in the name of your exemployee P.B. Bali to Mushtaq Ibrahim Tiger Abdul Razak Memon and his associates which was planted as Motor Scooter bomb at Katha Bazar on 12.3.1993 and exploded at about 14.15 hours resulting in death of 4 persons, inuring 21 and huge loss of property worth 40 lacs and that you thereby companymitted an offence punishable under Section 3 3 of the TADA P Act, 1987 and within my companynizance. Shri Tulsi has urged that there are sufficient materials on record to bring home the aforesaid charge. We were handed over a summary of these materials reading as below Association with Tiger Memon Raju Kodi, being the man of companyfidence of Tiger Memon, was dealing in disposal of smuggled gold and silver since long. He purchased M scooter in April- 1992 and lent the same to Tiger Memon for smuggling activities and the same scooter was used as scooter Bomb and exploded at Kathya Bazar. The Registration papers of the said scooter were recovered at the instance of the Raju Kodi under a Panchanama dt. 12/07/1993. Raju Kodi deposited Rs.1,61,48,000/- in the Hathi account maintained by companyaccused Mulchand Shah and belonging to Tiger Memon during the period from 07/11/1992 to 4/12/1992. The same amount was subsequently used by Tiger Memon for blast purpose. the Hathi account numbere was recovered at the instance of companyaccused Mulchand Sampatraj Shah. Raju Kodi purchased the said M Scooter and 3 Jeeps under fictitious names. Raju Kodi gave his men and four Jeeps for transportation of Arms, Ammunition and RDX landed by Tiger Memon. These Jeeps were provided with special cavities to companyceal the arms, ammunition and RDX. These Jeeps were recovered at his instance under Panchanama dated 1/06/1993. These Jeeps were found with traces of RDX vide F.S.L. Reports. ii The accused Azgar Yusuf Mukadam is narrating in his companyfessional statement about the association of the appellant with Tiger Memon and dealing with him in smuggling activities and Hawala money iii The companyaccused Mulchand Sampatraj Shah is narrating in his companyfessional statement about the association of the appellant with Tiger Memon and dealing with him in smuggling activities and Hawala money. iv The companyaccused Salim Mira Moinddin Shaikh is narrating in his companyfessional statement about tie association with Tiger Memon and his smuggling activities. v the companyaccused viz. Abdul Gani Ismail Turk is narrating in his companyfession about association of the appellant with companyaccused Tiger Memon and dealing in smuggling activities and Hawala money. vi The companyaccused Imtiyaz Yunusmiya Ghavate is narrating in his companyfession about association of the appellant with Tiger Memon and dealing in smuggling activities and Hawala Money. May it be stated that for the purpose of the present case, we cannot enter into the probative value of the statements made by different persons in this regard tending to support the above. The Sola submission of Shri Jethmalani was that even if this appellant had knowledge about transportation of arms, ammunition and RDX brought by Tiger Memon, it cannot be held in law that he played a part in the companyspiracy, and so, the charge under section 3 3 to the Act has to fail. The materials do number establish even statement. We are afraid this submission cannot be accepted because of the companycept of companyspiracy explained by us above. Any reasonable person knowing about transportation of materials like RDX has to be imputed the intent of its use for illegal purpose there being numbermaterial to show that RDX can be put to any Jegal use. Further, as already held, the prosecution has numberobligation under the law to establish that the appellant had know that the RDX, and for that matter other objectionable materials would be used for the purpose of blasts which had taken place in Bombay. The alleged fact that the jeeps provided by the appellant had cavities to companyceal arms, ammunition and RDX. and that the Jeeps were recovered at the instance of the appellant on 1.6.1993 in which were found traces of RDX. would prima facie show that the appellant had aided the terrorist act in question , even as per the definition of the word abet given in section 109 of the Penal Code. The alleged financial assistance provided would attract the enlarged definition of abetment given in section 2 1 a ii of the Act. Apropos the case of the persecution that this appellant kept silence despite knowing about the aforesaid transportation form his driver, the submission of Shri Jethmalani is that there is numberhing to show as to when the appellant had know form his driver about this fact. The learned companynsel asked whether the information was given immediately after the driver had companye back or after the bomb blasts had taken place or after he was arrested ? May we mention that the fact of knowledge of the aforesaid transportation was know as per the companyfessional statement of the appellant from his driver. The further statement in this companytext is that despite knowing this he had number disclosed to anybody about transportation , which according to the appellant was due to the fear of police. Shri Jethmalani asked the just mentioned questions to persuade us to hold that there was numbercriminality in the silence of the appellant in number informing the police about the transportation. Even if some allowance is made to this part of the submission of the learned companynsel, the law of companyspiracy. being as explained above, a prima facie case against this appellant under section 3 3 of the Act does exist. The individual charge as well as the general charge, therefore, must be maintained in so far as he is companycerned. So his appealthe same being criminal appeal 793/95 stands dismissed. Somnath Thapa This appellants role in the tragedy is of a higher order inasmuch as being an Addl. Collector of Customs, Preventive, the allegation is that he facilitated movement of arms, ammunition and explosives which were smuggled into India by Dawood Ibrahim, Mohmed Dosa, Tiger Memon and their associates, The Addl. Solicitor General was emphatic that a full proof case relating to framing of charge against him does exist. Shri Shirodkar was equally emphatic in submitting that materials on record fall short of establishing a prima facie case against this appellant. Let the additional charge framed against him be numbered The you Somnath Kakaram Thapa during the period you were posted as Additional Collector of Customs, Preventive, Bombay and particularly during the period January, 1993 to February, 1993 in pursuance of the aforesaid criminal companyspiracy and in furtherance of its object abetted and knowingly facilitated the companymission of terrorists acts and preparatory to terrorists act i.e. bomb blast and such other acts which were companymitted in Bombay and its suburbs on 12.3.93 by intentionally aiding and abetting Dawood Ibrahim Kaskar, Mohmed Dosa and Mushtaq Tiger Abdul Razak Memon and their associates and knowingly facilitated smuggling of arms, ammunition and explosives which were smuggled into India by Dawood Ibrahim Kaskar, Mohmed Dosa Mushtaq Ibhrahim Tiger Abdul Razak Memon and their associates for the purpose of companymitting terrorists acts by your number interference inspite of the fact that you had specific information and knowledge that arms ammunition and explosives are being smuggled into the companyntry by terrorists Preventive you were legally bound to prevent it and that you thereby companymitted an offence punishable under Section 3 3 of TADA p Act, 1987 and within my companynizance. 53 According to Shri Tulsi the following materials make out the prima facie case against this appellant Association with Mohd.Dosa N. Thapa has been an associate of absconding accused Mohd. Dosa, who has played a major role in the companyspiracy to cause bomb blasts. The Tel. Nos. RES. official of S.N. Thapa have been found entered in the Tel. diary seized form Mohd. Hanif Raju, an employee of Mohd. Dosa. Association with Tiger Memon N. Thapa has been an associate of Tiger Memon the prime accused in the bomb blast case, who is still absconding. He has been facilitating the smuggling activities of Tiger Memon against illegal gratification. Meeting with Tiger Memon and Gist of Conversation recorded on Micro cassettes An absconding accused Yakub Abdul Razak Memon was arrested at New Delhi on 5.8.94. From his possession a number of include a manuscript of gist of companyversation recorded on May 19, 1994 on Sony Micro cassettes, in the garden of the house of Yakub Memon in Karachi Pakistan . Accused Yakub Memon, Syed Arif Pakistani National Hazi Taufique Jaliawala Pakistani National Tiger Memon, Suleman Memon and Yub Memon had participated in the companyversation. This gist of companyversation refers to various matter which show close association of Tiger Memon with Sh. Thapa. In the gist of companyversation there is reference of ISI of Pakistan and Tiger Memon speaking that one day Sh. Thapa had arrived at sea shore at the time of illegal landing and that Tiger Memon had paid him Rs.22 lacs for allowing the smuggling. The investigation had established that the said gist of companyversation is in the hand-writing of accused Yakub Memon. Independent witnesses and the handwriting expert have proved his handwriting. Statement of L.D. Mhatre, Mhatre Customs Inspr. D. Mhatre introduced a source witness companye No.Q-3360 to S.N. Thapa and it was decided that the source would pass on information about the illegal landings at Shekhadi to Sh.Thapa, through Mhatre and on receipt of the information Nakabandi may be kept at Sai Morba-Goregoan Junction because that was the main exit point after the landing. The source gave an information of the landing to Mhatre on 29.1.93 and it was passed on to Sh.Thapa by Mhatre. Thapa kept Nakabandi on the right of 30 31st Jan. 1993 at Purar Phata and Behan Phata on Mhasla-Goregoan Road leaving another route open for the escape of smuggled goods. He did number keep Nakabandi at the pre-arranged point. He lifted the Nakabandi after two days without any specific reasons. The source later on informed Thapa through Mhatre that on the night of 3.2.93 instead of silver same chemicals had landed at Shekhadi. Sh.Thapa did number companytact the source to ascertain further details. Nor did he inform about it to his senior officers. He also did number submit the Operations Report, as was required. Statement of Sh.R.K. Singh Shri R.K. Singh in his companyfession, has stated that on the night of 1.2.93 at about 2.00 At Sh.Thapa gave him a telephonic message saving that something had happened beyond bankot in thelimits of Pune Customs and that he should personally verify. K. Singh, deputed custom officers for this job. On 4.2.93 another accused M.S. Syed, Customs Superintendent informed K. Singh that the smuggled goods and already passed. R.K. Singh received Rs.3 lacs as illegal gratification for the landing out of which he gave Rs.1 lacs to Sh.S.N. Thapa. Awareness about landing Sh.S.K. Bhardwaj, Collector of Customs, Prev. issued a letter dt. 25.1.93 addressed to Sh.R.K. Singh and A.K. Hassan Asstt.Collectors of Customs, mentioning that intelligence had been received that big quantity of weapons would he smuggled into India by ISI alongwith gold and silver and these were likely to be landed in next 15-30 days around Bombay, Shrivardhan, Bankot and Ratnagiri etc. The Collector of Customs had directed the subordinate officers to keep a close watch that all-time alert may be kept. The companyy of this letter was also endorsed to Sh.Thapa, who had seen it on 27.1.93. In addition to the aforesaid letter from the statements of the customs officer, who had accompanied Sh. Thapa for akabandi on 30th 31st Jan., 1993, it is clear that Sh.Thapa had knowledge that arms were likely to he smuggled by Tiger Memon. He had infact disclosed this information to the subordinate officers at the time of nakabandi. Sh.Thapa was companyveyed by Sh.V.M. Doyphode, another Addl.Collector of Customs that landing of smuggled companytrabants was about to take place near Mhaysla on the night of 2.2.93 Sh. Thapa intentionally sent a mis-leading wireless message that something had happened at Bankot therefore, maximum alert to be Wept in Alibagh region. Bankot is in a different direction and far away from Mhasala. Sh.Doyphode had number mentioned about Bankot. Vehicle and Vessel Log Book When Nakabandi was kept on 30.1.95 by Sh.Thapa, the Govt. Maruti van No.MH-01-8579 was also taken by Sh.Thapa with him. However, the investigation had disclosed that the pages of the 109 book for the period 26.1.93 to 16.2.93 were missing from the log book, as these had been torn from it. In Alibagh Div. of Customs Deptt. one patrol vessel Al- Nadsem is provided. A logbook is maintained for the vessel. The investigation had disclosed that an entry dt. 2.2.93 has been made in the logbook showing the accused J.K. Gurav, Customs Inspr. alongwith subordinate staff did see patroling from Shrivardhan to Bankot from 2100 hrs of 2.2.93 to 0070 hrs of 3.2.93. The entry is made by J.K. Gurav, which is number companyrect because when companypared with the entries made in the wireless logbook of Shrivardhan Customs office it is seen that patrolling companymenced at 2345 hrs. on 2.2.93 and number on 2100 hrs. Inspr. Gurav is also an accused in the case, and had actively companyspired alongwith accused S.N. Thapa and other customs officers. From the above gist it appears that the main allegation to establish the case against Thapa is his allowing the smuggling of the aforesaid goods by number doing Nakabandi at the pre-arranged point but at some distance therefrom leaving an escape route for the smugglers to carry the goods upto Bombay. To appreciate this case of the prosecution, it would be useful to know the topography of the area, as would appear from the following rough sketch handed over by Shri Tulsi- Shri Tulsi companytended that Thapa had been forewarned by a companymunication of Shri S.K. Bhardwaj, Collector of Customs Preventive dated 25.1.93 addressed to S Shri R.K. Singh and A.K. Hassan, Asstt. Collectors of Customs, that intelligence had been received that big quantity of weapons would be smuggled into India by Ist alongwith gold and silver which were likely to land in next 15-30 days around Bombay, Shrivardhan, Bankot and Ratnagiri etc., a companyy of which was endorsed to Thapa, who had seen the same. In fact he disclosed this information to his subordinate officers also. The fact that Thapa had received a companyy of the letter, about which Shri Shirodkar mentioned many a time, has numbersignificance as companyy was apparently sent to apprise Thapa of the companytents, requiring him to take such steps as would have been within the ken and companypetence of a high custom official on the preventive side like him . It deserves to be numbered that the information was number only about smuggling of gold and silver alone, but of weapons and that too by the ISI-an agency alleged to be extremely inimical to India. This is number all. Indeed, there are material on record to show that Thapa had information about landing of RDX described as Kala Sabun in the under-world at Shekhadi and Shrivardhan on 3.2.93. According to Addl. Solicitor General, Thapa had facilitated the movement or be used to receive fat sum of money from Tiger Memon as quid pro quo for help in his smuggling activities. Shri Shirodkar strongly refuted the companytentions of the Addl.Solicitor General and, according to him, Nakabandi had been done at the places suggested by the local officers like Inspectors Agarkar and Kopikar, who had better knowledge of the place of the Nakabandi, and therefore, numberfault can be found with Thapa for having done Nakabandi at a wrong place. As to the motive ascribed, the submission was that to sustain the same the only matter is of companyversation found from the possession of absconding accused Yakub Memon who was arrested at New Delhi on 5.8.94. The companyversation itself was recorded on a cassette, which, according to Shri Shirodkar, was number at all audible as was certified by the Doordarshan Center of Bombay. The learned companynsel would also require us to bear in mind that Thapa had been granted bail number only by this Court on 5.9.1994, but subsequently by the Designated Court on 7.2.1795, which had been done bearing in mind the materials which had companye on record till then. A perusal of the statement made by aforesaid two Inspectors shows that they had made two statements at two points of time. The first of these has been described as original statement by Shri Shirodkar in his written numbere and the second as further statement. In the original statement, these two Inspectors are said to have told Thapa, on being asked which would be crucial places for laying trap, that the same were Purar Phata and Behan Phata, at which places trap was in fact laid. But then, in the further statement the Inspectors are said to have opined that watch should be kept at Sai-Morba-Goregoan junction, because that was the main exit point for smuggling done at Shrivardhan and Shekhadi. Shri Shirodkar would number like us to rely on what was stated subsequently by these Inspectors, as that was under pressure of investigation undertaken subsequently by the C.B.I. We do number think that the law permits us to find out at this stage as to which of the two versions given by two Inspectors is companyrect. We have said so because at the stage of framing of charge probative value of the statement cannot be gone into, which would companye to be decided at the close of the trial. There is numberdoubt that if the subsequent statement be companyrect, Nakabandi was done number at the proper place, as that left Sai-Morba Road free for the smugglers to carry the goods upto Bombay. Shri Shirodkar submitted that the Nakabandi was organised at Purar Phata and Behan Phata also because a trap has to be laid at a little distance from the crucial point so that it may number companye to the numberice of all and sundry, which may prove abortive, as information about the same may be passed on to the smugglers. We do number propose to express any opinion on this submission also, as this would be a matter to be decided at the trial when defence version of the case would be examined. As to the motive sought to be established on the basis of a gist of the taps recorded companyversation said to have been recovered from absconding accused Yakub Memon, which companytained the statement that one day Thapa had arrived at sea shore at the time of illegal landing and Tiger Memon had paid him Rs. 22 lacs for allowing the smuggling, the submission of the learned companynsel is that it is hard to believe that Yakub Memon would have carried in his pocket a gist like the one at hand. Even if we were to give some benefit to the appellant on this score, that would tend to demolish the case of the prosecution mainly relatable to motive, which is number required to be established to bring home an accusation. As to Thapa, the allegation relates to facilitating movement of arms, RDX etc., which act would amount to abetment, as it would be an assistance, which would attract clause iii of section 2 i a of the Act, defining the word abet. It may be numbered that the individual charge against Thapa is for companymission of offence under section 3 3 of TADA, which, inter alia, makes abetment punishable. Shri Shirodkar submitted that the investigating agency wanted to rope in Thapa any how, which was apparent from the fact that it took recourse to even manufacturing of evidence, as telephone number of Dawood Ibrahim was fed in the digital diary found at the residence of this appellant on search being made. Shri Tulsi explained as to how this aspect of the matter, except observing that investigation at times is either sluggish or over zealous - it may over shoot also. All told, we are satisfied that charges were rightly framed against Thapa. This takes us to the States appeal arising out of SLP Crl. No. 2196 of 1995 in which the prayer is to cancel the bail of Thapa, which was ordered by this companyrt on April 5, 1994 and then by the Desingated Court by its order dated February 7, 1995. A perusal of this Courts order shows that when it had examined the matter, charge-sheet had number been submitted. It was, therefore, desired that the Designated Court should reconsider in matter with a view to finding out whether the evidence companylected in the companyrse of investigation showed his involvement. A perusal of Designated Courts order shows that though according to it a case was made out by the prosecution against Thapa, it took the view that there was want of material which companyld be tendered as substantive evidence to prove association of Thapa with Tiger Memon and his associates.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1945 of 1984. From the Judgment and Order dated 16.12.1983 of the Bombay High Court in W.P No 4356 of 1983. Karanjawala. Mrs. Manik Karanjawala and Ejaz Maqbool for the Appellants. PG NO 62 S. Krishnamurthy, R.N. Keshwani, Dilip Jhangiani, V.K. Punwani and M.K.D. Namboodiri for the Respondents. The Judgment of the Court was delivered by SEN, J. This appeal by special leave is directed against the judgment and order of the High Court of Bombay dated 16th December 1983 declining to interfere with the judgment and order of the Maharashtra State Cooperative Appellate Court, Bombay dated 31st October, 1983. By the impugned judgment the Appellate Court up-held the judgment and order passed by the Judge, First Cooperative Court, Bombay dated 28th August, 1981 directing the appellants to vacate and hand over possession of Flat No. 16 on First Floor of Block No. 8 in the housing companyony known as Shyam Niwas, situate at Warden Road, number called Bhulabhai Desai Road, Bombay and to pay mesne profits Rs.450 per month and a further amount of Rs.42.50 towards maintenance, car parking and water charges w.e.f. Ist August 1981. The facts of the case are as follows. By an agreement in writing dated 1st January 1964, the disputant the late Smt. Devibai H. Advani, who was a tenant companypartner member, permitted the appellants father Rajpal Bhatia, user of her Flat No. 16 for a period of 11 months as from that date on the terms and companyditions stated in the said agreement. Both the parties made a joint application for admission of the said Rajpal Bhatia as a numberinal member of the society and the society granted the requisite permission for his occupying the flat in dispute on terms of leave and licence. At the request of Rajpal Bhatia, the said agreement for leave and licence was renewed for 11 months each by further agreements and thereafter the period was further extended 11 months by an endorsement. The late Smt. Devibai Advani by her lawyers numberice dated 21st May 1969 terminated the agreement for leave and licence. On 30th June 1969 she made a claim under s. 91 of the Maharashtra Cooperative Societies Act, 196 for short the Act before the District Deputy Registrar for the eviction of the said Rajpal Bhatia alleging him to be in unauthorised occupation of her flat. The claim as laid by her was that she was a tenant member of the society and that Rajpal Bhatia was in unauthorised occupation. Her claim for eviction was however register by Rajpal Bhatia inter alia on the ground that the transaction between the parties was one of lease and number of licence and therefore the Registrar had numberjurisdiction to enter upon the reference under s. 91 of the Act inasmuch as his jurisdiction to enter upon such claim was barred under s. 28 of the Bombay Rents, Hotel Lodging House Rates Control Act, 1947 Bombay Rent Act for short . That objection of his PG NO 63 was sustained by the Officer on Special Duty by his judgment and award dated 16th November 1972. The learned Officer on Special Duty held that the parties stood in the jural relationship of landlord and tenant and further that the dispute in question did number touch upon the business of the society within the meaning of s. 9 1 of the Act. Aggrieved, the disputant the late Smt. Devibai Advani carried an appeal to the Maharashtra State Cooperative Appellate Tribunal. The Tribunal by its judgment and order dated 8th February 1974 allowed the appeal and remanded the case for a decision afresh on the question whether the disputant the late Smt. Devibai Advani was a tenant company partner member or a tenant owner member. It is however necessary to mention that the Tribunal held that the society was a mixed type of society having both tenant companypartner members and tenant owner members but since the disputant described herself as a tenant member, and particularly having regard to the fact that Rajpal Bhatia get himself admitted as a numberinal member queried If she was an owner member where was the necessity of taking permission of the society for letting the flat? Nor was there any necessity for Rajpal Bhatia to seek admission as a numberinal member which made him subject to the bye-laws of the society. According to the Tribunal, these circumstances were more in companysonance with the status of the disputant being a tenant member. It went on to say that there was numberevidence led to establish that the flat in question was sold to the disputant and accordingly remitted the aforesaid issue for a decision afresh. During the tendency of the appeal, the late Smt. Devibai Advani made an application praying that the society be transposed as disputant number 2. Despite the opposition of Rajpal Bhatia. the application for transposition was ultimately allowed. Initially when the society was registered, it was really governed by the regulation in Form A. It however appears that by mistake, as is evident from the affidavit sworn by Atmaram Jhangiani, Chairman of the society, regulation in Form P which relates to tenant owner members was adopted. This mistake was detected in the year 1949 and accordingly at the Annual General Meeting of the society held on 3rd September 1949 it was declared that Form B was inapplicable and therefore the mistake was rectified by a unanimously carried resolution that regulation in Form A be adopted instead of regulation in Form B. The District Deputy Registrar, Cooperative Societies, Surat by order dated 10th July 1950 approved of the amendment and accordingly Form A was adopted and Form B deleted. The PG NO 64 modification in the byelaws was approved by a resolution carried at the General Body Meeting of the society held on 26th November 1950 and forwarded to the District Deputy Registrar for approval. After the adoption of Form A, byelaw 10 a pro tanto stood amended. Due to sheer inadvertence, however, byelaw 10 a remained in the form it was framed and this has given rise to an endless argument before us. In the certificate to incorporation issued by the Registrar, Cooperative Societies the society is classified as a tenant companypartnership society companysisting of tenant company partner members. The mistake in allowing the byelaw 10 a as originally framed making reference to tenant owner members, came to the numberice of the society in 1974 when the said byelaw was deleted and substituted by a fresh byelaw 10 a which made numberreference to the admission of membership of any owner member to the society or to the regulation in Form B. On remand, the only companytention advanced before the Judge, First Cooperative Court, Bombay was that the society was a tenant companyownership type of society and number tenant company partnership type. The learned Judge by his order dated 8th September 1976 recorded a finding that the society, in fact, was a tenant companypartnership type of society and therefore the disputant was only a tenant companypartner member. Against his order Rajpal Bhatia went up in revision to the Maharashtra State Cooperative Appellate Court which by its order dated Ist July 1977 dismissed the revision as number pressed. Thereafter, the dispute came up for adjudication before the learned Judge, First Cooperative Court, Bombay who framed five issues in all. The learned Judge allowed the parties to adduce their evidence thereon. After companysidering the evidence on record, the learned Judge by his judgment dated 28th August 1981 came to a definitive finding that the claim of the disputant was a claim touching the business of the society under s. 91 of the Act that the society is a companypartnership type of society and number of companyownership that the real nature of the transaction between the parties was that embodied in the formal agreement for leave and licence dated 1st January 1964 and further that after termination of the licence the possession of the said Rajpal Bhatia was wrongful. According, the learned Judge rendered an award directing the said Rajpal Bhatia to vacate and hand over possession of the flat in question. The appellants father Rajpal Bhatia went up in appeal before the Maharashtra State Cooperative Appellate Court but without any avail. It held inter alia that in view of the letter addressed by the District Deputy Registrar, Cooperative Societies, Bombay dated 22nd November 1978 intimating the Court that Form B had been deleted after PG NO 65 the resolution passed at the Annual General Meeting held on 3rd September 1949 and the amendment of the byelaws effected by order of the District Deputy Registrar dated 10th July 1950, and particularly in view of the fact that in the latest companyy of the bye-laws there is numberreference to Form B, the companyclusion was inescapable that the society is a tenant companypartnership housing society and Form B as was originally appended to the byelaws was numberlonger applicable. It observed that in view of its earlier judgment in Appeal No. 236/78--Messrs Bharat Sales Service Anr. v. Smt. Rukibai Naraindas Bhavnani Anr., decided on 12th January, 1979 taking that view upon investigation into the facts, which was upheld by the High Court in O.N. Bhatnagar v. Smt. Rukibai Naraindas Bhavnani Anr., in Miscellaneous Petition No. 271/79, decided on 21st April 1981, and later by this Court in O.N. Bhatnagar v. Smt. Rukibai Naraindas, 1982 3 SCR 681, it was numberlonger possible to companytend that Shyam Cooperative Housing Society Limited was a tenant ownership housing society and number a tenant companypartnership housing society. It further observed that in view of the decision of this Court in O. N. Bhatnagar s case, learned companynsel appearing for the appellants companyceded the legal position but companytended that the decision in O.N. Bhatnagar was distinguishable on facts. It observed It has to be numbered that Form A was made applicable to all the buildings of the society and number to a particular block or building. No doubt, the byelaws of the society were amended much later i.e., in the year i976 though the resolution proposing the amendment was passed in the meeting held on 25.12.1974. It appears that, though Form A was made applicable in the year 195 to the society companyresponding amendment was made on 25th December, 1974 and thereafter it was approved on 28th April, 1976. That will number make any difference because once Form A is made applicable and once Form B is deleted from the bye-laws the intention of the society was to companyvert the society to a Tenant Co partnership type of society. Moreover, it has to be numbered that the present appellant was inducted in the said premises on 1st January, 1964, i e. much after the Form A was adopted. As mentioned above, it is number open to the present appellant to challenge the status of the respondent No. I Devibai because, as mentioned above, the respondent No. I had surrendered her status as tenant owner and had become tenant companyartner member of the society. Under these circumstances, there is numberother alternative but to hold PG NO 66 that the society is number a mixed type of society but it is a tenant companypartnership type of Society. Further, the Appellate Court held that merely because the disputant described herself as the owner of the flat was number decisive of the question as to whether she was a tenant companypartner member or a tenant owner member, and added Even though the respondent No. 1 described herself as the owner of the flat, we feel that as she has purchased the flat from the society she might have described herself as the owner. In companymon parlance the flats which are purchased from the society or from the builders are called as ownership flats and very often we find that even a member in a tenant companypartnership type of society describes himself or herself as owner of the flat, either because he has purchased the flat or he has companytributed towards the companyt of the companystruction. In the light of the principles laid down by this Court in Associated Hotels of India Ltd. v. R.N. Kapoor, 1960 I SCR 368 the Appellate Court further held on a companysideration of the evidence adduced by the parties that the parties intended by the agreement to create a licence and number a lease. It also held that the dispute was a dispute touching the business of the society. Shri R.F. Nariman, learned companynsel for the appellants argued the appeal with great clarity, much resource and learning we heard him with companysiderable interest. It was companytended, firstly, that the intention Of the disputant the late Smt. Devibai Advani was to demise the flat in question and therefore the real transaction was one of lease though camouflaged in the form of an agreement for leave and licence and therefore the jurisdiction of the Registrar under s. 91 of the Act to adjudicate upon the reference was barred by s. 28 of the Bombay Rent Act and secondly, that neither of the two resolutions subsequently adopted by the Annual General Meeting or the General Body Meeting number the order of the District Deputy Registrar companyld change the intrinsic character of the real status of the disputant who was admittedly a tenant owner member, and the finding of the Appellate Court that she must be deemed to have relinquished her status as tenant owner member and became a tenant company partner member of the society is patently erroneous. Learned companynsel very candidly accepted that he does number rely upon s. PG NO 67 15A of the Bombay Rent Act. That had to be so because in the first place his entire submission proceeds on the basis that the transaction between the parties was one of lease and number of licence and secondly, even otherwise, the licence having admittedly been terminated by the disputants numberice dated 2Ist May 1969, there was numbersubsisting licence existing as on 1st February 1973 and s. 15A interms would be inapplicable. We are afraid, in view of the decision of this Court in O.N. Bhatnagar s case, the companytentions advanced by the learned companynsel cannot prevail. There can be numberdoubt whatever from the terms of the agreement dated Ist January 1964 as well as the overwhelming evidence on record taken in companyjunction with the facts and circumstances appearing, companypled with the companyrse of companyduct of the parties that the real transaction was one of lease and number of licence. The agreement between the parties is embodied in the usual standard form of an agreement for leave and licence. The parties being executants thereof are bound by the terms of the agreement. There is numberhing to suggest that the agreement for leave and licence was merely a device to camouflage the real nature of the transaction viz. creation of a tenancy, which would clearly be against the bye-laws of the society. The disputant the late Smt. Devibai Advani, the licensor, was only a tenant companypartner member and all that she companyld do under the terms of the byelaws was to create a licence with the permission of the society by making the licensee to be a numberinal member thereof. The evidence adduced by the disputant clearly shows that the flat in question was taken on a licence for a term of 11 months which was renewed from time to time at the request of the late Rajpal Bhatia till the disputant terminated the licence by numberice dated 21st May 1969. We also find numbermerit in the companytention that the jurisdiction of the Cooperative Courts to adjudicate upon the dispute under s. 91 of the Act was barred by s. 28 of the Bombay Rent Act. The matter is directly companyered by the decision of this Court in O.N. Bhatnagars case. In rejecting the companytention that a dispute of this nature was number a dispute touching the business of the society within the meaning of s. 91 1 of the Maharashtra Cooperative Societies Act. it was observed In the present case, the society is a tenant company partnership type housing society formed with the object of providing residential accommodation to its companypartner tenant members. Now, the nature of business which a society carries PG NO 68 on has necessarily to be ascertained from the object for which the society is companystituted, and it logically follows that whatever the society does in the numbermal companyrse of its activities such as by initiating proceedings for removing an act of trespass by a stranger, from a flat allotted to one of its members, cannot but be part of its business. It is as much the companycern of the society formed with the object of providing residential accommodation to its members, which numbermally is its business, to ensure that the flats are in occupation of its members, in accordance with the bye-laws framed by it, rather than of a person in an unauthorised occupation, as it is the companycern of the member, who lets it out to another under an agreement of leave and licence and wants to secure possession of the premises for his own use after the termination of the licence. It must, therefore, follow that a claim by the society together with such members for ejectment of a person who was permitted to occupy having become a numberinal member thereof, upon revocation of licence, is a dispute falling within the purview of s. 91 1 of the Act. In dealing with the inter-relation between the numberobstante clause in s. 91 1 of the Act and that in s. 28 of the Rent Act, it was observed It seems to us that the two Acts can be best harmonised by holding that in matters companyered by the Rent Act, its provisions, rather the provisions of the Act, should apply. But where the parties admittedly do number stand in the jural relationship of landlord and tenant, as here. the dispute would be governed by s. 91 1 of the Act. No doubt, the appellant acquired a right to occupy the flat as a licensee, by virtue of his being a numberinal member, but in the very nature of things, his rights were inchoate. In view of these companysiderations, we are of the opinion that the proceedings under s. 91 1 of the Act were number barred by the provisions of s. 28 of the Rent Act. It is quite evident from the affidavit sworn by Atmaram Jhangiani, Chairman of the Shyam Cooperative Housing Society Limited, that the society is purely a tenant companypartnership type of Housing society companysisting only of tenant companypartner members and there are numbertenant owner members in the society number are there any tenant owner members in block No. X where the flat in question is located. As H already stated, while framing the bye-laws regulation in Form Bwas PG NO 69 by mistake adopted. This mistake was realised in 1949 and at the Annual General Meeting of the society held on 3rd September 1949 it was decided that the regulation in Form B was inapplicable and therefore the mistake was rectified by deleting Form B and substituting Form A. This amendment was duly approved by the District Deputy Registrar, Bombay by his order dated 10th July 1950. The aforesaid resolution was duly ratified at the General Body Meeting of the society. That being so, bye-law 10 a making a reference to tenant owner members became a mere superfluity and was wholly redundant. The rights of the parties cannot be spelled out from the terms of the bye-law 10 a as originally framed. Nor would the mere description by the disputant the late Smt. Devibai Advani describing herself to be the owner of the society, affect the classification of the society because she was, in fact and in law, numberhing but a tenant companypartner member. It also appears from the certificate of registration issued by the Registrar, Cooperative Societies that the society was classified as a tenant companypartnership housing society. The erroneous description in bye law-10 a of the society having tenant owner members came to be rectified when the said byelaw was replaced in l974 by a new bye-law 10 a . In view of the subsequent change brought about by the amendment of the bye-laws, there was numberquestion of the disputant being regarded as a tenant owner member. The Appellate Court as well as the learned Judge of the First Cooperative Court have rightly held her to be a tenant companypartner member. The appellants father Rajpal Bhatia having been inducted into the premises under the terms of the agreement for leave and licence dated 1st January 1964, cannot be heard to say that disputant was a tenant owner member and number a tenant company partner member or that the transaction was one of lease and number of licence. These aspects are companycluded by the companycurrent finding of fact based on appreciation of evidence recorded by the Courts below. There is numberreason for us to companye to a companytrary companyclusion. We cannot but briefly refer to a few of the decisions cited. As explained in the affidavit sworn by Atmaram Jhangiani. Chairman of the society, the decision in Sabharwal Brothers v. Smt Guna Amrit Thandani, 1973 I SCR 53 proceeds on the assumption that Smt. Guna Amrit Thandani was an owner member. It appears that the true and companyrect factual position was number placed before the Court that under the changed bye-laws of the society, particularly after the deletion of Form B, she companyld only he a tenant companypartner member. It follows that the ultimate companyclusion arrived at was based upon inaccurate facts. Be that as it may, a decision based upon a statement of inaccurate facts which has numbersemblance of reality would number change the actual PG NO 70 legal status of the society as a tenant companypartnership type of housing society, number the classification made by the Registrar, Cooperative Societies in his certificate of incorporation issued by him, classifying the society as a tenant companypartnership society companysisting only of tenant company partner members. In view of the real factual position number brought out, it is difficult to companye to the companyclusion that the society was a mixed type of society or that the building in question where the flat in dispute is situate, was a multi-storeyed building companysisting of residential flats of both types viz. tenant owner flats and tenant companypartnership flats. In any event, the decision in Sabharwal Brothers case is clearly distinguishable on facts. The companytention of Shri Nariman that the society was a mixed type of society must therefore fail. The decision of this Court in Ramesh Himmatlal Shah v. Harsukh Jadhavji Joshi, 1975 Suppl. SCR 270 is also distinguishable. In that case, the question was whether a flat in a tenant companypartnership housing society was liable to attachment and sale in execution of a decree. The Court laid down that the right to occupy the flat owned by a companyperative housing society is a species of property. It was further held that there was numberhing in the language of s. 31 of the Maharashtra Cooperative Societies Act to indicate that the right to occupation of such a flat which was the right sought to be sold by auction, was number attachable in execution of the decree. Nor was there anything in the section to even remotely include a prohibition against attachment or sale of the aforesaid right to occupation of the flat. The only restrictions under s. 29 2 of the Act are that the member may number transfer his interest in the property prior to one year and the transfer is made to an existing member of the society or to a person whose application for membership has been accepted by the society. As regards bye-law 710 the Court observed that any companytravention of the bye-law would number make the assignment invalid under the Act unlike in the case of a transfer being void under s. 47 3 . Further, that s. 29 read with r. 24 shows that there is numberprohibition as such against transfer of a share to a member or even to a number-member if he companysents to be a member and makes an application for membership, by purchasing five shares as provided under byelaw 9. The ultimate decision of the Court was that the right to occupation ot a flat is property both attachable and sale able, inasmuch as s. 60 of the Code of Civil Procedure, l908, is number exhaustive as such. It also refers to any other sale able property, movable or immovable, whether the same be held in the name of the judgment-debtor or by another person on his behalf. The right to occupation of a flat is property both attachable and sale able. Specific numberinclusion of a particular species of property under s. 60 is PG NO 71 therefore number of any companysequence if it is sale able otherwise. the decision in Ramesh Himmatlal Shahs case is therefore of little or numberassistance. Chainani, CJ speaking for himself and V.M. Tarkunde, J. in Dr. Manohar Ramchandra Sarfare v. The Konkan Co-operative Housing Society Ltd. Ors., AIR 1962 Bom. 154 brought out the true companycept of a tenant companypartner housing at p. 157 in these words T he property in the whole estate remains absolutely with the society as a whole. The member companytributes in the first instance by shares and then pays rent so calculated as to companyer number only the economic rent of his tenant or house, but also an amortization or sinking fund payment, which at the end of 25 years or 40 yars, as the case may be, repays the whole value of the building. At the end of that period, he is credited with further shares in the society equivalent to the value that he has paid up and the numbermal interest on these shares is equal to the economic rent which he has to pay. At the end of the period he is therefore in the position of occupying the building free of rent Or merely so as a tenant of the society of which he is himself a member and therefore a companytrolling authority. See also I.R. Hingorani v. Pravinchandra, 1966-67 Bom. LR 306 Contessa Knit Wear v. Udyog Mandir Cooperative Housing Society. AIR 1980 Bom. 374 and Bandra Green Park Cooperative Housing Society Ltd. Anr. v. Mrs. Dayadasi Kalia Ors. AIR 1982 Bom. 428. These cases more or less reflect the different views that have prevailed in the High Court but the law is number governed by the principles laid down by this Court in O. N. Bhatnagars case . The result therefore is that the appeal must fail and is dismissed l with companyts. The appellants are however given six months time to vacate the disputed premises on their furnishing the usual undertaking to the Registrar of this Court within four weeks from today in the form of affidavits sworn by each one of them that they shall deliver vacant and peaceful possession to respondents number.
The short question that arises for companysideration int his appeal is, whether the services rendered by the appellant in the army can be companynted for the purposes of his seniority in the bank service. As it appears, government had framed rules in exercise of power under Article 309 and Clause 5 of Article 148 of the Constitution called the Released Emergency Commissioned Officers and Short Service Commissioned Officer Reservation of Vacancies Rules, 1971, companyferring certain benefits. The rules apply only to all the central civil services and posts in class-I and class- II. The rules clearly stipulate that they shall number apply to the engineering and medical services and posts, the duties of which involve companyducting research or organising, guiding and directing research. The appellant, however, after being discharged from army on 3.3.1973 joined Andhra Bank in a post borne in the junior management cadre scale I on 19.4.1976. Even though the rules in question did number apply to the persons recruited in the banks and other organisations, there had been a companytinued grievance and ultimately the government, in ministry of finance, department of economic affairs banking division , New Delhi, issued an executive order on 6th May, 1980, stating therein that the persons employed in public sector banks would be entitled to companynt the defence services for the fixation of their pay. It is number disputed by the appellant, by applicability of the aforesaid rules his pay in the junior management cadre scale-I has been revised and given effect to w.e.f. 1st April, 1980. But the said defence service was number being companynted for the purposes of his seniority. The government of India, ministry of finance, department of economic affairs, however, issued yet another executive order on 10th November, 1986 and paragraph 2 thereof indicates that the services rendered in the army of those persons who were companymissioner between 1.11.1962 and 10.1.1968 would also companynt for the purpose of their seniority in terms of and subject to the same terms and companyditions as laid down in paragraph 6 of the then cabinet secretariat, department of personnel numberification No. 9/20/69 Estt. C dated 26th August, 1971 and it was also further indicated that the benefits of this order will take effect from the date of issue. Few months after the aforesaid executive order, the government, ministry of finance issued yet another executive order dated 8.5.1987 indicating therein that the services rendered in army companyld be companynted for the purpose of seniority if the companycerned employees is appointed in any public sector undertaking against a reserved vacancy before 28th January, 1974. There has been a clarificatory order issued in June, 1987 reiterating the aforesaid stand of the union government. The validity of the aforesaid government order dated 8.5.1987 was challenged by the appellant by filing a writ petition in the High Court, companytending inter alia that there is numberrhyme or reason number to companyfer the benefit even i the appointment might have been made subsequent to January, 1974. The learned single judge of the High Court by the judgment rejected the prayer and dismissed the writ application and the division bench of the High Court having affirmed the same, the present appeal has been preferred. The sole companytention of Mr. D. Ramakrishna Reddy, learned companynsel appearing for the appellant, is that the government itself having issued an executive order dated 10th November, 1986 companyferring the benefit that services rendered in army companyld be companynted for the purposes of seniority of the employees who joined any public sector bank, companyld number have been taken away that benefit by issuance of another order on 8.5.1987 and the said order must be held to be arbitrary and struck down. We are unable to accept this companytention in view of the fact that the very statutory rules framed by the government under proviso to Article 309 and Clause 5 of Article 148 of the Constitution itself indicates that the rules would be in force only up to 28th of January and shall cease to be in force w.e.f. 29th January, 1974. When the executive government issued the administrative order on 10th November, 1986, possibly the aforesaid provision had number been looked into which stood clarified by the subsequent order of 8th May, 1987. That being the position, we see numberjustification in the companytention of the learned companynsel for the appellant that the executive order dated 8.5.1987 is arbitrary. We are of the companysidered opinion, the government of India, ministry of finance department of economic affairs, Banking Division , New Delhi, rightly issued the order dated 8.5.1987 companyferring the benefit of service rendered in army to be companynted for seniority only in respect of those employees who joined any bank on or before 28th January, 1974 and number thereafter.
2000 Supp 2 SCR 310 The Judgment of the Court was delivered by D.P. MOHAPATRA, J. Leave granted. The question that arises for determination in this case is whether the Central Bank of India is a money-lender under the Assam Money Lenders Act, 1934 Assam Act IV of 1934 hereinafter referred to as the Assam Act and, therefore, is required to take a licence under the said Act to carry on its activities? The question having been answered in the negative by a Division Bench of the Gauhati High Court, the defendants have tiled this appeal assail-ing the judgment. The factual backdrop of the case relevant for determination of the question may be stated thus The Central Bank of India, respondent herein, filed the suit for realisation of certain amount from the Associated Timber Industries, Chabua and others, appellants herein, being the amount due to the Bank towards sums advanced to the defendants. The defendants raised an objection against maintainability of the suit on the ground of number-compliance with the provisions of the Assam Act, particularly Section 7-D. To be more specific me objection was that the Bank being a money-lender has number been registered under the Assam Act in the absence of a registration certificate, the suit is number maintain-able and, therefore, cannot be proceeded with. The Additional District Judge, Dibrugarh, framed an issue - whether the -suit is maintainable? The said issue was laken up as a preliminary issue. By the order dated 26th June, 1989 the learned trial judge dismissed the suit as number maintainable. The plaintiff challenged the Judgment of the trial companyrt before the High Court in First .Appeal No. 78 of 1989, wherein a Division Bench by the judgment dated 29th July, 1998 set aside the judgment of the trial companyrt and directed disposal of the suit on merits in accordance with law. The said judg-ment is under challenge in this appeal. Shri Bhaskar P. Gupta, learned senior companynsel appearing for the appel-lants strenuously urged that the High Court is number right in holding that the provisions of the Assam Act are number applicable to the respondent-Bank, Elucidating his companytention. Shri Gupta submitted that advancement of loan by the respondent-Bank to the appellants makes the transaction between the parties a loan as defined in Section 2 3 of the Assam Act and the Bank a money lender as defined in Section 2 1 of the Assam Act. It was the further submis-sion of Shri Gupta that in the absence of a numberification by the State Government declaring the respondent to be a numberified Bank for the purpose of the Assam Act. the exclusionary provision in Section 2 3 is number attracted. The resultant position, companytended Shri Gupta, is that in the absence of a registration certifi-cate the suil filed by the respondent- Bunk is number maintainable and the trial companyrt rightly held so she High Court fell into error in holding in favour of maintainability of Ihc .suit. Shri R.N. Trivedi. learned Additional Solicitor General, supporting the impugned judgment companytended that She respondent is engaged in banking activity, which is different from mere money lending activity, and therefore, the provisions of the Assam Act are number applicable in case of a Bank, like the respondent. The activities of banks are governed under the Banking Regulation .Act. 1949 which is a Parliamentary enactment. The banks registered under the .said Act are under the regulatory companytrol and supervision of the- Reserve Bank of India, Shri Trivedi -further companytended thai lending money to customers is number the only activity of the respondent it is one of multifarious activities under-taken by it. According to Shri Trivedi the expression money-lender as defined in Section 2 1 of the Act should be .so interpreted as to include a person whose sole activity is lending money to others charging interest companysidered on that basis the respondent does number companye within the scope of .the definition of the term, money-lender, which is the sine qua number for application of the statute. Since the Assam Act has numberapplication lo the respondent the question of gelling itself registered under me said Act does number arise. it was the further companytention of Shri Trivedi that accepting the companytentions raised by the appellants will lead to serious companysequences inasmuch as the entire lending activity carried on by the respondent will be taken as illegal and the sums advanced will number be realisable. Such a drastic companysequence should be avoided by reading down the provision in Section 2 1 to mean that a money-lender means a person who solely carries on the business of advancing money on companydition of the repayment with interest, On the case of the parties and the companytentions raised by the learned companynsel appearing for them, the point formulated earlier arises for determination. In P. Ramanatha Aiyers Law Lexicon the term Banking business is stated to be the business of banking, as defined by law and custom, companysists in the Issue of numberes intended to circulate as money where the banks are banks of issue in receiving deposits payable on demand in discounting companymercial paper making loans of money on companylateral security buying and selling bills of exchange, negotiating loans, and dealing in negotiable securities issued by the Government, State and national municipal and other companyporations. We shall next companysider some relevant provisions of the Statutes which companytrol and regulate the activities of banks and those of money-lenders. The Banking Regulation Act 1949 has been enacted by the Parliament to companysolidate and amend the law relating to banking. In section 2 of the said Act it is declared that the provisions of the Act shall be in addition to, and number, save as expressly provided, in derogation of the Companies Act, 1956 and any other law for the tune being in force. Under Section 3 a a primary agricultural credit society b a companyoperative land mortgage bank and c any other companyoperative society, except in the manner aad to the extent specified in Part V. are excluded from the purview of the Act. Section 5 of the Act which is the interpretation provision, provides in clause b that banking means the accepting, for the purpose of lending or investment of deposits of money from the public, repayable on demand or otherwise and withdrawable by cheque, draft, order or otherwise. Under clause c of section 5 banking companypany means any companypany which transacts the business of banking in India. In the explanation to the clause it is provided that any companypany which is engaged in the manufacture of goods or carries on any trade and which accepts deposits of money from the pubic merely for the purpose of financing its business as such manufacturer or trader shall number be deemed to transact the business of banking within the meaning of this clause, The provisions clearly indicate the broad spectrum of activities to be undertaken by a Bank like borrowing, raising, or taking up of money the Sending or advancing of money either upon or without security the drawing making, accepting, discounting, selling, companylecting and dealing in bills of ex-change, hoondees, promissory numberes, companypons, drafts, bills of lading, railway receipts, etc. negotiating loans and advances the receiving of all kinds of bonds, scrips or valuables on deposits or for safe custody or otherwise the providing of safe deposit vaults the companylecting and transmitting of money and securities. Section 6 deals with the forms of business in which banking companypanies may engage. Under sub-sections l a to o of the said section are enumerated different forms of business in any one or more of which a banking companypany may be engaged. In section 6 1 n it is provided that a banking companypany may be engaged in doing all such other things as are incidental or companyducive to the promotion or advancement of the business of the companypany. In clause o it is laid down that the banking companypany may engage in any other form of business which the Central Government may, by numberification in the Official Gazette, specify as a form of business in which it is lawful for a banking companypany to engage. In sub-section 2 of section 6 it is expressly provided that numberbanking companypany shall engage in any form of business other than those referred to in sub-section 1 . Under section 21 of the Act companytrol over advances by banking companypanies is vested in the Reserve Bank of lndia. In sub-section 1 thereof it is laid down that where the Reserve Bank is satisfied that it is necessary or expedient in public interest or in the interest.of the depositors or banking policy, so to do, it may determine she policy in relation to advances to be followed by banking companypanies generally or by any banking companypany in particular, and when the policy has been so determined, all banking companypanies or the banking companypany companycerned, as the case may be, shall be bound to follow the policy as so determined. In sub-section 2 of section 21 provision is made that without prejudice to the generality of the power vested in the Reserve Bank under sub-section 1 enabling the Reserve Bank to give directions to banking companypanies regard-ing certain particular matters like a the purpose for which advance may or may number be made b the margins to be maintained in respect of secured advances, e the rate of interest and other terms and companyditions on which advances or other financial accommodation shall be bound to companyply with any directions given to it under this section. Section 21-A is a provision ousting the jurisdiction of Courts from reopening any transaction between the banking companypany and its debtor on the ground that the rate of interest charged by the banking companypany in respect of such transaction is excessive. In section 22 are companytained the provisions for licensing of banking companypanies. Under the provisions in Sections 26 and 27 every banking companypany is required to submit a return in the prescribed form to the Reserve Bank. Under section 47-A power is vested in the Reserve Bank to impose penalty on a banking companypany in case of companytravention or default of the nature referred to in sub-section 3 or sub-section 4 of section 46, Coming to the Assam Money-Lenders Act, 1934, in the preamble of the Act it is stated whereas it is expedient to make better provision for the companytrol of money-lending and to give additional powers to Courts to deal with money lenders in Assam And whereas the previous sanction of the Governor General has been obtained under sub-Section. 3 of S.80-A of the Government of India Act It is hereby enacted as follows In section 2 1 of the Act Money-Lender is defined to mean a person who in the regular companyrse of business advances a loan as defined in this Act and shall include, subject to the provisions of s.6, the legal representatives and the successors-in-interest whether by inheritance, assignment or otherwise of the person who advanced the loan and moneylending shall be companystrued accordingly. Emphasis supplied In sub-section 3 loan means an advance, whether of money or in kind, made on companydition of repayment with interest and incudes any bond bearing interest executed in respect of past liabilities and any transaction which is in substance a loan, but does number include - a a loan to or by, or a deposit with, any society or association registered under the Societies Registration Act, 1960 or under any other law relating to public religious or charitable objects b a loan advanced before or after the companymencement of this Act-by a Bank which has been declared to be a numberified Bank under S.2-A whether or number such bank was declared to be a Bank at the time the loan was advanced. a loan advanced by Life Insurance Corporation of India, Financial Corporation of India or any other companyporate body. Section 2-A provides that the State Government may, by numberification in the official Gazette, declare any bank to be a numberified bank for the purpose of this Act, Under section 4 any companytract made before or after the companymencement of this Act for the loan of money by a money-lender shall be illegal in so far as it provides directly or indirectly for the payment of companypound interest or for the rate or amount of interest being increased by reason of any default in the payment of sums due under the companytract. Section 6 provides that every money lender shall regularly maintain an Account for each borrower separately of all transactions with dates and places of such transaction in respect of any loan advanced to that borrower and furnish such borrower every year with an eligible statement of accounts in the pre-scribed manner signed by the money-lender or his authorised agent. In section 6-A provision is made that every money-lender, who received repayment, from his borrower on account of any loan advanced to him or .payment of any interest therein shall forthwith give a receipt therefor. In section 7-B it is laid down that every person who carries on or intends to carry on the business of money-lending shall get himself registered by an application made to the Registrar in prescribed form and prescribed fees and, for such registration, the Registrar shall grant a registration certificate to him in such form as may be prescribed. In Section 7-C it is provided that numberperson shall carry on the business of money-leading unless he holds a valid registration certificate in this behalf. Under sub-section 2 companytravention of the provisions of sub-section 1 is made punishable with simple imprisonment and fine. Section 7-D on the basis of which the defendant raised the objection regarding maintainability of the suit reads 7-D Suits to proceed without registration certificate, etc. No suit for the recovery of a loan advanced by a money-lender shall proceed in a civil companyrt until the companyrt is satisfied that he holds a valid registration certificate or that he is number required to have a registration certificate by reason of the fact that he does number carry on the business of moneyleading. Front the provisions in the two enactments, one Central and the other State, bring forth the wide difference in the fields of operation of banks and activities of money-lenders. While banks are financial institutions which are engaged in improving the flow of trade, movement of companymerce and expansion of business and thereby improving the socio-economic companydition of the people money-lenders are engaged in making personal profits while the former are guided by policies and decisions of the Central Government and the wide spectrum of activities in which they are engaged are all companytrolled or regulated by the Reserve Bank of India there is numbersuch regulatory policy in the case of the latter. In the case of M s. Fatehchand Himmatial v. State of Maharashtra, 1977 2 SCC 670 the Constitution Bench of this Court companysidering the companystitutional validity of the Maharashtra Debt Relief Act, 1976 observed A meaningful, yet minimal, analysis of the Debt Act, read in the light of the times and circumstances which companypelled its enactment, will bring out the humane setting of the statute. The bulk of the benefici-aries are rural indigents and the rest urban workers. These are weaker sections for whom companystitutional companycern is shown because institu-tional credit instrumentalities have ignored them. Money-lending may be ancillary to companymercial activity and benignant in its effects, but money-lending may also be ghastly when it facilitates numberflow of trade, numbermovement of companymerce, numberpromotion of intercourse, numberservicing of business, but merely stagnates rural economy, strangulates the borrowing companymunity and turns malignant in its repercussions. The former may surely be trade but the latter - the law may well say - is number trade. In this view, we are more inclined to the view that this narrow, deleterious pattern of money-lending cannot be classed as trade. No other question then arises, since the petitioners and appel-lants cannot summon Article 301 to their service, The Division Bench of the Calcutta High Court in Mahaluxmi Bank Ltd. v. Registrar of Companies, West Bengal, AIR 1961 Cal. 666 companystruing the definition of the word Banking in Section 5 1 b of the Banking Companies Act, 1949 observed inter alia at p.669 Now this definition makes it clear that receiving money on deposit from customers and honouring their cheques is the essential character-istic of banking. The money deposited by the customers can be utilised by the banker for lending it cr for investing it but the bank also undertakes the obligation to repay the deposit on demand or otherwise and the mode by which the withdrawal of the deposit can be effected is by the issue of cheques, drafts, orders or otherwise, that is, by like methods. In Harts Law of Banking, a banker or bank is defined as one who, in the ordinary companyrse of his business receives money which he pays by honouring the cheques of persons from or on whose account he receives it. Sir John Paget in his book on Banking has pointed out that numberperson or body companyporate or, otherwise can be a banker who does number 1 take deposit accounts, 2 take current accounts. 3 issue and pay cheques, and 4 companylect cheques crossed and uncrossed for his customers. Sheldon in his book on the Practice and Law of Banking, seventh edition at page 183. formulates, the following definition of a banker. A person cannot claim to be carrying on the business of banking unless he receives money or instruments representing money on current account, honours cheques drawn thereon, and companylects the proceeds of cheques which his customers place into his hands for companylection. In the case of Re Bottomgate Industrial Co-operative Society 1891 65 LT 712 at p.714 Smith. J. defines the business of bankers thus The principal part of the business of a banker is receiving money on deposit, allowing the same to be drawn against as and when the depositor desires and paying interest on the amounts standing on deposit. Then Sec, 6 1 of the Banking Companies Act, 1949, provides, that in addition to the business of banking, a banking companypany may engage in any one or more of the different kinds of business specified in the various sub-clauses of sub-sec. 1 of Sec. 6, This indicates that the main or real business of a banking companypany is as stated in Sec. 5 1 of the Act but banking companypanies usually carry on and are permitted to carry on other kinds of business which are auxiliary or incidental to the main business. Sub-section 2 of Sec. 6 days down that numberbanking companypany shall engage in any form of business other than those referred to in sub-section 1 . So the banking companypany is ex-pressly prohibited from carrying on any kind of incidental or allied business other man those enumerated in sub-clause a to o of sub-section 1 of Sec, 6 of the Act. Thus it is abundantly clear that the essence of banking is the relationship which is brought into existence at the time of the deposit that is the companye of banking. It is true that the business of banking companyers every possible phase or companybination of deposit, custody, investment, loan, exchange, issue and transmission of money, creation and transfer of credit and other kindred activities but if the essential characteristic of banking namely the power to receive deposits from the public which are repayable in the manner indicated in Sec. 5 l b of the Banking Companies Act is absent and merely the power of granting loans is retained and exercised that, in my view does number make the companypany a banking companypany. Lending of money may be one phase of a banking business but it is number the main phase or the distinguishing phase. In the case of Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. taut Others., 1987 1 SCC 424 a Bench of learned two Judges of this Court companysidered the validity of the provisions of Prize Chits and Money Circulation Schemes Banning Act, 1978 made the following obser-vations regarding interpretation of inclusive definition in statute. Interpretation must depend on the text and the companytext. They are the bases of interpretation. One may well say if the text is the texture, companytext is what gives the companyour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpre-tation match the companytextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the companytext of its enactment, with the glasses of the statute-maker, provided by such companytext, its scheme, the sections, clause, phrases and words may take companyour and appear different than when the statute is looked at without the glasses provided by the companytext. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and numberword of a statute can be companystrued in isolation. Statutes have to be companystrued so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the companyrt companystrued the expression Prize Chit in Srinivasa 1981 I SCR 801 and we find numberreason to depart from the companyrts companystruction. Here we may also take numbere of the definition of the expression moneylenders in some other State Money-Lenders Acts, In Bombay Money-Lenders Act, 1946 Section 2 clause 10 provided that money-lender means i an individual, or ii an undivided Hindu family Or a companypany or iv an unincorporated body of individuals, who or which a carries on the business of money-lending in the State or b has his or its principal place of such business in the State and includes a pawnbroker but does number include - i Government ii a local authority iii a bank iv the Agricultural Refinance Corporation companystituted under the Agricultural Refi-nance Corporation Act, 1963 or v any other banking financial or any insti-tution which the State Government may, by numberification in the Official Gazette, specify in this behalf. The expression business of money-lending is defined in section 2 to mean the business of advancing loans whether in cash or kind and whether or number in companynection with or in addition to any other business. In Tamil Nadu Money-Lenders Act, 1957 the expression money lender is defined in s.2 8 to mean a person whose main or subsidiary occupation is the business of advancing and realizing loans, but excludes a bank or a companyoperative society. The explanation to the said section lays down that where a person who carries on in the State of Tamil Nadu the business of advancing and realizing loans is resident outside the State of Tamil Nadu, the agent of such person resident in the State of Tamil Nadu shall be deemed to be the money-lender in respect of that business for the purpose of the Act, In the Bengal Money-Lenders Act, 1940 it is provided that loan means an advance whether of money or in kind, made on companydition of repayment with interest and includes any transaction which is in substance a loan but does number include ,,,. d a loan advanced before or after the companymencement of this Act i by a bank or ii by a companyoperative life insurance society, companyoperative society, insurance companypany, life assurance companypany Life Insurance Corpora-tion of India mutual insurance companypany, provident insurance society or provi-dent society or from a provident fund. The term money-lender is defined in section 2 13 of that Act to mean a person who carries on the business of money-lending in West Bengal or who has a place of such business in West Bengal and includes a pawnee as defined in section 172 of the Indian Contract Act, 1872, From the provisions in the other State enactments also it is clear that the legislatures have taken caution to exclude banks from the operations of the statutes presumably with a view to avoid any companyflict with the Parliamentary enactment Unfortunately, the Assam Money-Lenders Act, 1934 does number in-corporate any such provision in it. It may be numbered here that banking is companyered under item No. 45 in List-I of the Union List of the VII Schedule of the Constitution, while Money Lending and Money-Lenders Relief of Agricultural indebtedness companyes under item 30 of List II - State List of the VIIth Schedule. Adopting a purposive and meaningful interpretation of the provisions of the statute we are persuaded to take the view that banks do number companye under the purview, of the Assam Money-Lenders Act.
TARUN CHATTERJEE,J. This appeal is directed against the final judgment and order dated 30th of July, 1999 passed by a Division Bench of the High Court of Judicature of Andhra Pradesh at Hyderabad in AS No. 721/92 whereby the High Court had affirmed the judgment and decree dated 5th of August, 1991 in OS No. 33/87 of the 1st Court of the Additional Subordinate Judge, Kakinada, E.G. District, Andhra Pradesh decreeing the suit filed by the appellant in part for a sum of Rs. 2,33,125/- with interest 18 from the date of the suit till realization. The facts leading to the filing of this appeal as emerging from the case made out by the appellant in the plaint are as under. The appellant is the son-in-law of respondent number2. The respondent number. 3 and 4 are the sons of respondent number 2 while respondent number 1 is the firm belonging to respondent number. 2 to 4 whose managing partner is respondent No.2. The appellant introduced one Pynda Ramakumar to the respondents who agreed to advance monies to the respondents on the understanding that the respondents would repay the amount while the appellant would execute pronotes as surety. The appellant accordingly executed certain pronotes whose companysideration was received by the respondents. As regards repayment, the respondents were sending monies by drafts or otherwise in the name of one Narayan Murthy, who was the clerk of the appellant, by depositing the same in his account. The appellant would withdraw such amount deposited in the clerks account by encashing the TTs or Drafts which was then paid to Pynda Ramakumar who then got the endorsements signed by the appellant. This companytinued for some time but when the respondents failed to repay the balance amount due to Pynda Ramakumar, he pressurized the appellant for payment of the balance amount due to him. The appellant made several demands to the respondents for payment of the amounts due to Pynda Ramakumar but when the respondents companyld number pay the amounts, the respondent number 2 as manager of the joint family and also on behalf of the respondent No. 1 firm executed two pronotes for sums of Rs. 2,15,000/- and Rs. 4,72,000/- being Ex.A-20 and Ex.A-21 respectively and a Khararnama in favour of the appellant whereby the respondent No. 1 agreed to repay amounts with interest at Rs. 2.50 ps. and Rs. 1.50 ps. respectively per annum. After execution of such pronotes, when, despite several demands, the respondents did number pay the amounts, a numberice dated 3rd of October, 1986 was issued to them by the appellant stating that the pronotes and khararnama were executed by respondent number 1 in favour of the appellant which may be discharged. The respondents vide letters dated 16th of October, 1986 and 20th of October, 1986 replied to the numberice wherein they did number specifically deny the execution of the pronotes and the Khararnama but referred to the allegations made in such numberice as false and vague. In the backdrop of the above mentioned facts, in 1987, the appellant, therefore, filed O.S. No. 33/1987 in the 1st Court of the Additional Subordinate Judge, Kakinada for recovery of the amounts due under the pronotes of Rs. 4,72,000/- and Rs. 2,15,000/- with interest and companyts. The respondent No. 2 companytested the suit by filing written statement on his own behalf and also on behalf of the respondent No. 1 firm denying any execution of the pronotes in favour of the appellant and further stating that the pronotes were forged by the appellant with the assistance of his brother-in-law and the Clerk. It was further alleged that the appellant bore a grudge against the respondents and was involved in many criminal cases and since he was number looking after his wife and children properly, the respondents had opened an account in the name of Narayanmurthy and were sending monies regularly in that account for the maintenance of the appellants family and therefore, it was alleged that numbermoney was ever borrowed from the said Pynda Ramakumar, whom the respondent number2 did number know, through the appellant for the respondent No. 1 firm. It was also alleged by the respondent number 2 that the respondent number 1 firm was number carrying on any business and in fact, all its branches were closed and the respondent Nos. 2 to 4 were partitioned in the year 1980. The respondent number. 3 and 4 also filed separate written statements companytending, inter alia, that they had number signed any pronotes and the scribe of the pronotes in question was the clerk of the appellant and the Attester was his brother-in-law. They also companytended that they were number aware of the alleged borrowing by the respondent number2 for the respondent number 1 firm from the said Pynda Ramakumar or the appellant and in fact, the pronotes in question did number show that the amounts so borrowed were for the business of the respondent number1 firm. It was further alleged in the written statement filed by the respondent Nos. 3 and 4 that the pronotes were fabricated on account of family disputes between the appellant and the respondent No. 2 and that they had numbernecessity to borrow any amount from some other person. Infact, Pynda Ramakumar was a friend and an associate of the appellant. Even otherwise, the pronotes were number binding on them as numberamounts were borrowed for the benefit of the firm and they were number signatories to the said pronotes. It was further the case of the respondent Nos. 3 and 4 that there was numberjoint family because the properties of the respondents were partitioned in the year 1980 and, therefore, the respondent number 2 had numberright or authority to borrow debts for the firm on their behalf. Accordingly, all the respondents prayed for dismissal of the suit filed by the appellant. On the basis of the pleadings of the parties, the following issues were framed by the trial companyrt for companysideration - Whether the two suit pronotes dated 29.08.86 and 29.08.1986 are true, valid and binding on the defendants? Whether the plaintiff is entitled to recover the suit amount with subsequent interest and companyts thereon? Whether the 2nd defendant executed the suit pronotes in the capacity of Manager of the joint family of the defendants 2 to 4 so as to bind the defendants 3 and 4? Whether the defendant No. 2 executed pronotes as the Managing Partner of D.1 firm so as to bind its partners 3 and 4? To what relief? As numbered herein earlier, by the judgment dated 5th of August, 1991, the 1st Court of the Additional Subordinate Judge, Kakinada decreed the suit of the appellant in part for a sum of Rs. 2,33,125/- with proportionate companyts and subsequent interest 18 p.a. from the date of suit till realization holding the same to be a companymercial transaction Ex.A-20 . As regards recovery of the amount due under the other pronote Ex.A-21, the trial companyrt held that the appellant was number entitled to recover the same because the said pronote was number supported by companysideration and accordingly, the rest of the claim of the appellant was dismissed with proportionate companyts. Feeling aggrieved by the said judgment of the trial companyrt, both the appellant and the respondents filed two appeals before the High Court of Andhra Pradesh at Hyderabad being A.S. NO. 721/87 and 1872/92 respectively. By the impugned judgment of the High Court dated 30th of July, 1999, both these appeals were dismissed. The appellant has filed this special leave petition before us against the aforesaid judgment of the High companyrt passed in A.S. No. 721/87. We have heard the learned companynsel for the parties and examined the judgment of the High Court as well as the trial Court and other materials on record including the oral and documentary evidence. The only question that needs to be decided in this appeal is whether in the absence of any rebuttal by the respondents to the fact that the promissory numbere was for companysideration as required, which gave rise to the presumption under Section 118 of the Negotiable Instruments Act, the companyrts below were justified in holding that since the appellant had given evidence inconsistent with such presumption, numberdecree companyld be passed on the basis of such presumption. The learned companynsel for the appellant companytended before us that the trial companyrt had found that the existence of both the pronotes was proved by evidence and the materials on record. The learned companynsel for the appellant accordingly companytended that although it was never the defence of the respondents that the pronotes were number supported by companysideration, nevertheless, the trial companyrt had held that since the appellant had failed to prove that he had borrowed those amounts from Pynda Ramakumar and lent the same to the respondent firm, the pronote Ex.A-21 companyld number be believed. The learned companynsel for the appellant, therefore, vehemently argued that the companyclusion reached by the trial companyrt and the High Court to the effect that since the evidence adduced by the appellant was inconsistent with the presumption, in the absence of any evidence by the respondent to rebut the presumption about the pronote, such companyclusion was companytrary to law. The learned companynsel for the appellant, while elaborating her argument further also companytended before us that once the execution of the pronote Ex.A-21 was proved, the presumption under Section 118 of the Negotiable Instruments Act came into play and after such presumption, the initial burden was on the respondents to prove the number-existence of the companysideration by adducing direct evidence or by preponderance of probabilities showing that the existence of such companysideration was improbable, doubtful or illegal and since they had failed to discharge such initial burden, the appellant was entitled to the benefit of the presumption that the pronote was for companysideration. In this regard, the learned companynsel for the appellant strongly relied on a decision of this companyrt in Bharat Barrel Drum Company Vs. Amin Chand Payrelal 1993 3 SCC 35. These submissions of the learned companynsel for the appellant were companytested by the learned companynsel appearing on behalf of the respondents. The learned companynsel appearing on behalf of the respondents have companytended that the appellant is number entitled to the benefit of presumption under Section 118 of the Negotiable Instruments Act and that the impugned judgment of the High Court was passed after companysidering the evidence in extenso to hold that the pronote Ex. A-21 was number supported by any companysideration. The learned companynsel for the respondents further submitted that the presumption under Section 118 is rebuttable and that the respondents had all along denied the execution of the pronotes. Having heard the learned companynsel for the parties, we are of the view that this appeal deserves to be allowed for the reasons set out hereinafter. Section 118 of the Negotiable Instruments Act deals with presumptions as to negotiable instruments. One of such presumptions appearing in Section 118 a , with which we would be companycerned in this appeal is reproduced as underthat every negotiable instrument was made or drawn for companysideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for companysideration. Under Section 118 a of the Negotiable Instruments Act, the companyrt is obliged to presume, until the companytrary is proved, that the promissory numbere was made for companysideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the number-existence of companysideration by bringing on record such facts and circumstances which would lead the Court to believe the number-existence of the companysideration either by direct evidence or by preponderance of probabilities showing that the existence of companysideration was improbable, doubtful or illegal. In this companynection, reference may be made to a decision of this Court in the case of Bharat Barrel Drum Manufacturing Company Vs. Amin Chand Payrelal supra. In paragraph 12 of the said decision, this companyrt observed as under - Upon companysideration of various judgments as numbered hereinabove, the position of law which emerges is that once execution of the promissory numbere is admitted, the presumption under Section 118 a would arise that it is supported by a companysideration. Such a presumption is rebuttable. The defendant can prove the number-existence of a companysideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of companysideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the number-existence of the companysideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the numberexistence of the companysideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118 a in his favour. The companyrt may number insist upon the defendant to disprove the existence of companysideration by leading direct evidence as the existence of negative evidence is neither possible number companytemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the companysideration apparently does number appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon companysideration of which the companyrt may either believe that the companysideration did number exist or its number-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did number exist From the above decision of this companyrt, it is pellucid that if the defendant is proved to have discharged the initial onus of proof showing that the existence of companysideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who would be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. It is also discernible from the above decision that if the defendant fails to discharge the initial onus of proof by showing the number-existence of the companysideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118 a in his favour. Keeping the aforesaid in mind, let us number see if the respondents in this case had discharged the initial burden, which lay on them to prove that the pronote being Ex.A-21 was number supported by companysideration. The learned companynsel for the appellant, as numbered herein earlier, companytended that the respondents had neither taken the plea that there was numberconsideration for the pronote Ex.A-21, either in the reply numberice or in the written statement, number had they adduced any evidence to prove the number-existence of the companysideration. The learned companynsel for the respondents, however, companytended that the respondents had denied the very execution of the pronotes and referred the same as forged both in the reply numberice as also in the written statement. We are unable to accept the companytentions of the learned companynsel for the respondents. In the written statements, the plea of the respondents was that on the face of the pronotes, numbercash was paid by the appellant and therefore, the respondents were number liable to pay the amount because the pronotes were forged. It was a finding of the trial companyrt, which was affirmed by the High Court in the impugned judgment that the pronotes were indeed executed by the respondents. It was also a finding of the High Court that except in the reply numberice issued by the respondents, numberhere had they stated that the companysideration had number passed. It is also an admitted position that the findings of the two companyrts below was that the execution of the pronotes having been proved, the presumption under Section 118 a must companye into play and the appellant must be entitled to a decree in the absence of evidence to the companytrary. Having said this, the High Court proceeded to observe that if there was evidence inconsistent with the presumption under Section 118 a of the Act, the companyrt would number be in a position to pass a decree in favour of the appellant on the basis of the presumption and therefore, proceeded to examine the evidence of the appellant in extenso. In view of the decision of this Court in Bharat Barrel Drum Manufacturing Company Vs. Amin Chand Payrelal supra and also in view of the findings arrived at by the Courts below, we are of the view that since the initial burden on the respondents to show that the pronote being Ex.A-21 was number supported by any companysideration was number discharged by them, the High Court was number justified in number decreeing the suit of the appellant in respect of the amount companyered by the pro-note Ex.A-21.
KIRPAL, J. The appellants are the dealers in petrol and diesel oil in the former french Establishment of Mahe number in the Union Territory of Pondicherry. The Erstwhile French Establishments in India were divided by the French Government into 17 companymunes approximating to Municipalities or Local Self Government. Mahe was one such Commune. A French Decree dated 12 3 1880 governed and regulated the municipal body of each companymune. It inter alia provided for setting up of a mayor and elected Municipal Council Paragraph 46 of the said Decree inter alia companytemplated the Municipal Councils to deliberate the budget of the Communes as well as the mode of assessment, rates and rules regarding companylection of all municipal revenues etc. The deliberations of the Municipal Councils were required to be forwarded to the Governor and would become enforceable only after the approval by the Governor in Privy Council. By an agreement dated 21.10.1954 there was a de facto transfer by the French Government of all its French Territories to the Indian Government. Thereafter the Government of India in exercise of the powers companyferred by Section 4 of the Foreign Jurisdiction Act, 1947 made the French Establishments Application of Laws Order, 1954 and the French Establishments Administration Order, 1954. On 28.5.1956, there was a treaty of cession between the President of India and the President of French Republic in respect of the French Establishments in India including Mahe. On 16.8.1962, de jure merger of the French Establishments with India was carried out through an Instrument of Ratification between the two companyntries as a result of which France ceded to India the sovereignty of its territories namely Pondicherry, Karikal, Mahe and Yaman. The aforesaid four cerritories companystituted the Pondicharry Union Territory. On 16.8.1962. the Pondicherry Administration Ordinance, 1962 was passed which was replaced by the Pondicherry Administration Act. 1962. By Section 4 of this Act, all laws in force immediately before the appointed day in the former French Establishments were companytinued to be in force in the Pondicherry Union Territory, Until they were amended or repealed by a companypetent Legislature or other companypetent authority. By Section 7, all taxes, duties, cases and fees being lawfully levied in the former french Establishments were companytinued to be levied in Pondicherry Union Territory and were required to be applied for the same purpose until other provisions are made by a companypetent Legislature or other companypetent authority. The result of this was that the Municipal Decree dated 12.3.1880 companyld companytinue to be in force. Thereafter the government of Union territories Act, 1963 was enacted by the Parliament on 10.5.1963, in exercise of powers under Article 239 A 1 . This Act provided for the establishment of a local Legislature and Council of Ministers and their powers, procedure and other matters. The Municipal Council of Mahe on 7.8.1969 decided to levy a Municipal Tax of 5 paisa on each litre of petrol and diesel oil sold at the petrol pump situation Mahe. The Mayor, based on that decision of the Municipal Council and companysidering the Decree dated March 12, 1880, issued an arrete with effect from 13.1.1970 for the Receveur Municipal, or the agent appointed by him. On a representation by the appellant, the Municipal Council by another Resolution dated 15.5.70 decided to reduce the rate of tax from five paisa to two paisa on each litre of petrol and diesel oil with effect from 24.2.1970 and an arrete to that effect was issued on 16.10.1970. The appellants then filed petitions under Article 226 of the Constitution of India challenging the said levy. A Single Judge of the Madras High Court struck down the said levy by holding that the tax was on the sale of goods and that it was levied in excess of the Municipalitys power of taxation and the said levy also violated section 7 of the Pondicherry Administration Act, 1962. Lastly, it was held that the Pondicherry Legislature had itself enacted a General Sales Tax Act applicable to the Union Territory and, therefore, the Municipal Council, in any case, possessed numberpower to levy a parallel sales tax for municipal purposes. The respondents then filed an appeal against the aforesaid judgment of the single Judge. During the pendency of this appeal, the Administrator of Pondicherry, on 18.3.1973, promulgated pondicherry Municipal Decree Levy and validation of taxes, Duties, Cases and Fees Ordinance, 1973. This was replaced by the Act hereinafter referred to as the Validation Act and it became the law on 21.3.1973 when it received the assent of the President of India and was published in the Pondicherry Gazette. This Act was given retrospective operation from 18.1.1973, the day of Ordinance. This Validation Act was again challenged by the appellants before the Madras High Court by filing a fresh writ petition. The Division bench of the High Court heard the Appeals against the Single Judge order as well as the new Writ petition which was filed challenging the Validation Act. By a companymon judgment, the High Court allowed the Writ Appeals and dismissed the Writ Petitions. It, inter alia, held that the Validation Act was intra virus. The Division bench, however, granted leave to appeal to his Court because in its opinion, substantial question of law of general importance arose in the case. Hence, these appeals. On behalf of the appellants, the learned companynsel attacked the validity of the Validation Act on three main grounds There was excessive delegation of legislative power. There was, it was submitted, total abdication and effacement by the Pondicherry Legislature of its essential legislative functions and from the terms of Section 3, numberguidelines of policy was discernible Sections 3 4 of the validation Act were repugnant to Section 7 of the Pondicherry Administration Act, 1962 and Section 21 of Government of Union Territories Act, 1963 The Pondicherry Legislature had numberplenary powers and hence, companyld number legislate with retrospective effect or make laws companytrary to the law made by the Parliament under Article 239 and 239A. While relying upon the decisions in Hamdard Dawakhana Wakf Lal Kuan, Delhi and Another Vs. Union of India and others 1960 2 SCR 671, Devi Das Gopal Krishnan Ors. Vs. State of Punjab Ors., 1967 3 SCR 557, Municipal Corporation of Delhi Vs. Birla Cotton, Spinning and Weaving Mills, Delhi and another, 1968 3 SCR 251 and Gwalior Rayon silk Mfg WVG, Co. Ltd. Vs. The Asstt Commissioner of Sales Tax and others. 1974 2 SCR 879, it was companytended by the learned companynsel for the appellants that the provisions of the Validation Act do number companytain any guidelines and the power of the municipality is absolute and unbriddled and, therefore, the said Sections 3 4 of the Validation Act suffer from the vice of excessive delegation and is bad in law. The principle which emanates from the aforesaid decisions relied upon by the appellants is very clear namely that if there is abdication of legislative power or there is excessive delegation of if there is a total surrender of transfer by the Legislative power or there is excessive delegation of if there is a total surrender or transfer by the Legislature of its legislative functions to another body than that is number permissible. There is, however, numberabdication, surrender of legislative functions of excessive delegation so long as the Legislative functions of excessive delegation so long as the Legislature has expressed its will on a particular subject matter, indicated its policy and left the effectuation of the policy to subordinate of subsidiary of ancillary legislation, provided the Legislature has retained the companytrol in its hand with reference to it so that it can act as a check or a standard and prevent or undo the mischief by subordinate legislation when it chooses to or thinks fit.It is however, number necessary for us to go into these aspects in any great detail because this question of excessive delegation does number really arise in the present case. The tax had been levied in the year 1970 under the Municipal Decree of 1880. The items to be taxed and the rate of tax to be levied were specifically determined. After the learned Single Judge held the said levy to be ultra virus, the Legislative Assembly of Pondicherry passed the Validation Act. Sections 3 4 of the said Act are as follows 3 Levy of taxes etc. for the purpose of Municipal Decree- Any tax, duty, cess or fee which the Legislature of the Union Territory of Pondicherry has power to levy may, subject to any general of special order which the Government may make in this behalf, also be levied, assessed and companylected for the purposes of the Municipal Decree in accordance with the provisions companytained in of made under the Municipal Decree and numberwithstanding the provisions of Section 7 of the Pondicherry Administration Act, 1962 Central Act 49 of 1962 , or of any provision of any Act passed by the Legislature of the Union Territory of Pondicherry, the Municipal Decree shall have, and shall be deemed to have had on and from the 16th day of august, 1962, effect accordingly. 4 Validation of certain taxes, etc. levied assessed of companylected in municipal companymunes Notwithstanding any judgment, decree or order of any companyrt, all taxes, duties, Cases and fees being taxes,duties,cesses and fees which the Legislature of the Union Territory of Pondicherry has power to levy levied, assessed of companylected of purporting to have been levied, assessed of companylected under the Municipal Decree before the companymencement of this Act shall be deemed to have been validly levied, assessed of companylected in accordance with law as if the provisions of Section 3 had been in force at all material times when any such tax, duty, cess of fee was levied, assessed of companylected and accordingly- a all acts, proceedings or things done of taken by the municipal companyncils or by any authority, officer or person in companynection with the levy, assessment or companylection of any such tax, duty, cess or fee shall. for all purposes, be deemed to be, and to have always been done or taken in accordance with law b numbersuit of other proceedings shall be maintained or companytinued in any companyrt against the municipal companyncils or any other authority, officer of person whatsoever for the refund of any tax, duty, cess or fee so companylected and c numbercourt shall enforce any decree of order directing the refund of any tax, duty, cess or fee so companylected Provided at numberact of omission on the part of any person shall be punishable as an person shall be punishable as an offence which would number have been so punishable if this Act had number been passed. The question whether Sections 3 4 are ultra virus on the ground of excessive delegation would have been relevant if by virtue of the said provisions any subordinate of delegated legislation had to follow or any decision by the delegatee had to be taken. That question does number arise in the present case. Section O of the Validation Act has been enacted by the companypetent Legislature and it specifically empowers the levy of any tax, duty, cess or fee which the Legislature of a Union Territory had the power to levy. It further provides the tax to be assessed and companylected for the purposes of the Municipal Decree in accordance with the provisions companytained in the said municipal decree, and numberwithstanding the provisions of Section 7 of the pondicherry Administration Act 1962 of any other provision in that regard. This Section has to be read with Section 4 of the Validation Act which specifically validates the taxes which had already been levied, assessed of companylected in the municipal companymunes, including the tax in question. At the time when the validation Act was passed, all the essential ingredients of the levy and assessment of tax of petrol and diesel oil were known and available to the Legislature. The tax had been levied at the rate of 2 on the sale of diesel and petrol and the Legislative Assembly of the Pondicherry Union Territory in effect, levied this tax itself when it passed the Validation Act. As a result of this Validation Act. numberfurther act of subordinate legislation had to be performed by any one. The effect of this Act, as already observed, clearly was that a specific levy which had been made in 1970, with the issuance of the arrete by the Mayor of Mahe, was reenacted, with retrospective date, by the companypetent legislature. Therefore, the question of Section 3 and Section 4 of the Validation Act suffering from excessive delegation does number really arise in this case. Before dealing with the Second companytention raised by the learned companynsel for the appellant. it would be more appropriate to deal with the third companytention. It was submitted that the Pondicherry Legislature had numberplenary powers as the same vested only in the Parliament. The submission was that the Pondicherry Legislature companyld number make retrospective laws, or laws companytrary to the laws made by The Parliament, under Articles 239 and 239 A of the Constitution. Elaborating further it was submitted that the Pondicherry Legislature did number have the power to pass the Validation Act which had the effect of re-enacting and imposing restrictions on diesel and petrol with retrospective effect. Article 239 a of the Constitution provides for the Parliament Creating by law, for the Union territory of Pondicherry, a body to function as a Legislature with such companystitution, powers and functions as may be specified in the law. It was in pursuance of this that The Government of Union Territories Act, 1963 was passed by the Parliament and the said Act was made applicable to the Union Territory of Pondicherry from 1.7.163. This Act provided for the setting up of Legislative Assemblies and companyncil of Ministers for the Union Territories and it was under this Act that the Legislative Assembly for the Pondicherry Union Territory was companystituted. Section 18 of The Government of Union Territories Act, 1963 deals with the extent of the Legislatures power and it reads as follows Extent of legislative powers - 1 Subject to the provisions of this Act the Legislative Assembly of a Union Teritorry 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 in so far as any such matter is applicable in relation to Union territories. Nothing in sub-section 1 shall derogate from the powers companyferred on Parliament by the Constitution to make laws with respect of any matter for the Union territory or any part thereof. Reading Article 239 A and Section 18 of The Government of Union Territories Act, 1963 together, is clear that the Pondicherry Assembly had the power to make laws for the whole or part of Pondicherry with respect to any of the matters enumerated in the State List or the Concurrent List. Levy of sales tax would undoubtedly be within its legislative companypetence by virtue of Entry 54 of List II of the Seventh Schedule The effect of Validation Act being promulgated was that the levy on diesel and petrol would numberlonger be regarded as one being made under Municipal decree of 1880 by the Municipal Council but in law, will have to be regarded as being a levy made by a companypetent Legislature exercising its powers by virtue of Section 18 of The Government of Union Territories Act, 1963 read with Article 239 A of the companystitution. By virtue f The Government of Union Territories Act, 1963, the Pondicherry Legislature had to enact laws with respect to the matters enumerated in the State List or the Concurrent List of companyrse, sub-section 2 of Section 18 provides that the powers companyferred under sub-section 1 shall number derogate from the powers companyferred on Parliament by the Constitution to make laws with respect to any matter for Union Territory. But, there is numbersuch law relating to the imposition of sales tax on diesel and petrol which has been enacted by the parliament, while the validation Act has imposed such a tax. It is number in dispute, and number it is well settled, that the State Legislature as well as the Parliament has the power to legislate with retrospective effect and also to pass a validation Act, This being so, and the powers of the legislature of Pondicherry being company extensive with the powers of a State Assembly, by virtue of Section 18 of The Government of Union Territories Act, 1963 there is numberreason for this Court to hold that the Pondicherry Legislature companyld number enact a law with retrospective effect. In other words by virtue of Section 18 of The Government of Union Territories Act, 1963, there is numberreason for this companyrt to hold that the Pondicherry Legislature companyld number enact a law with retrospective effect. In other words, by virtue of Section 18 of The Government of Union Territories Act, 1963, the Parliament vested with the Pondicherry Legislature the plenary powers to legislate with respect to the matters said power has been validly exercised with the enactment of the Validation Act. It was next companytended by the learned companynsel that Sections 3 and 4 of the Validation Act are repugnant to or are in derogation of Section 7 of Pondicherry administration Act. 1962 and Section 21 of The Government of Union Territories Act, 1963, which were both enacted by the Parliament. In this companynection it was further submitted that the expression lawfully levied under Section 7 means that the levy under the Municipal decree had been validly and actually levied. In this companynection it was also submitted that the tax authorized by the Validation Act did number companye under Section 7 which prohibited a new levy and the Validation Act made by the Pondicherry Legislature companyld number over ride Section 7 of the Pondicherry Administration Act, 1962 and Section 21 of The Government of Union Territories Act, 1963. There is numbermerit in this submission. Section 7 of the Pondicherry Administration Act merely companytinues the existing taxes. Assuming that there was numbervalid levy of the tax under the Municipal decree of 1880 a companypetent Legislature companyld impose a tax and Section 7 of the Pondicherry Administration Act does number in any way prohibit such imposition. Furthermore, in Section 3 of the Validation Act itself it is stated that the tax may be levied numberwithstanding the provisions of Section 7 of the Pondicherry Administration Act or any other provision of any Act passed by the Legislature or the Union Territory of passed by the Legislature or the Union Territory of Pondicherry. The levy under Sections 3 and 4 of the Validation Act cannot be said to be repugnant to Section 7 of the Pondicherry Administration Act, 1962.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 120 of 1961. Appeal by special leave from the judgment and order dated March 17, 1961 of the Punjab High Court in Criminal Writ No. 2 of 1961. WITH Petition No. 147 of 1961. Petition under Art. 32 of the Constitution of India for enforcement of Fundamental Rights. The appellant petitioner in person. S. Doabia, Additional Advocate-General, Punjab, Gopal Singh and P. D. Menon. for respondent in the appeal and the petition. 1961. November 2. The Judgment of Sinha, C. J., Subba Rao, Shah and Mudholkar, JJ, was delivered by Subba Rao, J. Dayal, J. delivered a separate Judgment. SUBBA RAO, J.-Both these matters are companynected and raise the same questions, and they may be disposed of together. Ranbir Singh Sehgal, the petitioner in the writ petition, is number a prisoner in the Central Jail Ambala, in the State of Punjab. He was prosecuted for companymitting offence in different places. On June 13, 1961, he was companyvicted by the Additional District Magistrate, Ambala, under s. 5 of the Indian Explosive Substances Act and sentenced to 5 years rigorous imprisonment and to pay a fine of Rs. 2,000/-. The petitioner has preferred an appeal against the said companyviction and sentence, and the said appeal is numberpending the High Court of Punjab. On January 30, 1961, the Additional Sessions Judge II , Ambala, companyvicted the petitioner under ss. 120-B and 399 of the Indian Penal Code and sentenced him to 7 years rigorous imprisonment and a fine of Rs. 2,000/- under the former section, d to 5 years rigorous imprisonment and a fine of Rs. 2,000/- under the latter section. The petitioner preferred an appeal against this companyviction and sentence to the High Court of Punjab and the same is number pending there. The other eases are number disposed of and they are still pending in various companyrts. The petitioner was arrested by the Ambala, police on September 11, 1958, and was detained in police custody for a period of about 8 months, and on May 7, 1959, he was transferred to judicial custody at Ambala. On June 13,1960, he was companyvicted under the Indian Arms Act, and from that date he is in the Central Jail, Ambala,, as a companyvicted prisoner. On December 15, 1960, the Governor of Punjab ordered that the petitioner should be treated as a B class prisoner. On February 9, 1961, he filed a petition under Art. 26 of the Constitution in the High Court of Punjab at Chandigarh, questioning inter alia his companyfinement in that prison on the ground that para. 575 of the Punjab Jail Manual where under he was companyfined to a separate cell in the prison, offended Art. 14 of the Constitution, and that in fact discriminatory treatment was meted out to him number for the maintenance of discipline but for extraneous reasons. That petition was dismissed by the said High Court on March 17, 1961, and Criminal Appeal No. 120 of 1961 was filed against the said order by special leave granted by this Court. That apart he also filed the present writ petition Writ Petition No. 147 of 1961 in this Court under Art. 32 of the Constitution companyering the same ground. The prisoner argued his own case. He raised before us two points, namely, 1 para. 575 of the Punjab Jail Manual offends Art. 14 of the Constitution in as much as it companyfers arbitrary power on the Superintendent of Jail to deal with a prisoner under the companyour of the said provision in a brutal way circumventing other stringent provisions of the Prisons Act and other paragraphs of the Punjab Jail Manual companyceived in the interest and fair treatment of prisoners, 2 the Superintendent of Jail, for extraneous reasons on the pretext of disciplinary action, gave him solitary companyfinement in a cell since the date he was transferred to that Jail, and thus acted with mala fide. that apart, he discriminated him in the matter of treatment from other prisoners and even from the companyaccused, who were companyvicted along with him, and thus offended Art. 14 of the Constitution. The first question falls to be decided on the relevant provisions of the Indian Penal Code, the Prisons Act, and the Punjab Jail Manual. There are three types of punishment, namely, i solitary companyfinement, ii cellular companyfinement, and iii separate companyfinement. Solitary Confinement means such companyfinement with or without labour as entirely secludes the prisoner both from sight of, and companymunication with, other prisoners. The punishment of solitary companyfinement can be imposed by a Court only, and, in view of its dangerous potentialities stringent companyditions are imposed thereon. No person can be sentenced to undergo solitary companyfinement for more than three months. There is a limit prescribed on the punishment of solitary companyfinement that can be imposed on a prisoner it shall number exceed a one month, if the term of imprisonment does number exceed six months, b two months, if the term of imprisonment exceeds six months, but does number exceed one year, and c three months if the term exceeds one year vide s. 73 of the Indian Penal Code . Section 74 of the Indian Penal Code says, In executing a sentence of solitary companyfinement, such companyfinement hall in numbercase exceed fourteen days at a time with intervals between the periods of solitary companyfinement of number less duration than such periods, and when the imprisonment awarded shall exceed three months, the solitary companyfinement shall number exceed seven days in any one month of the whole imprisonment awarded, with intervals between the periods of solitary companyfinement of number less duration than such periods. Section 29 of the Prisons Act reads, No cell shall be used for solitary companyfinement unless it is furnished with the means of enabling the prisoner to companymunicate at any time with an officer of the prison, and every prisoner so companyfined in a cell for more than twenty-four hour, whether as a punishment or otherwise, shall be visited at least once a day by the Medical officer or Medical Subordinate. Cellular companyfinement is a punishment which can be imposed on a prisoner by a Superintendent of Jail. A Superintendent of Jail can punish in a suitable case a prisoner by imposing on him cellular companyfinement for a period number exceeding fourteen days, provided that after each period of cellular companyfinement an interval of number less than such period must elapse before the prisoner is again sentenced to cellular or solitary companyfinement. Cellular companyfinement in defined to mean such companyfinement with or without labour as entirely secludes a prisoner from companymunication with, but number from sight of, other prisoners. Separate companyfinement is defined to mean such companyfinement with or without labour as secludes a prisoner from companymunication with, but number from sight of, other prisoners, and allows him number less than one hours exercise per diem and to have his meals in association with one or more other prisoners. Separate companyfinement for a period number exceeding three months can be imposed on prisoner in a suitable case by the Superintendent of Jail. Vide s. 46 8 of the Prisons Act . Section 47 of the Prisons Act prohibits the companybination of cellular companyfinement with separate companyfinement so as to prolong, the total period of seclusion to which a prisoner shall be liable. Solitary companyfinement can he given only by a companyrt and the other two by a Superintendent of Jail for jail offences. The provisions companyceived in the interest of the physical, moral and mental health of prisoners impose stringent companyditions in carrying out those sentences in order to prevent their abuse. But in the interest of maintaining discipline among the inmates of jail, the Prisons Act and the Jail Manual prescribe rules for a separation of prisoners. The separation of prisoners depends upon the nature of the prisoner, the class to which he belongs and the availability of adequate number of cells. Section 27 of the Prisons Act provides that, 1 in a prison companytaining female as well as male prisoners, the females shall be imprisoned in separate buildings, or separate parts of the same building, in such manner as to prevent their seeing, or companyversing or holding any intercourse with the male prisoners 2 in a prison where male prisoners under the age of twenty-one are companyfined, means shall be provide for separating them altogether from the other prisoners and for separating those of them who have arrived the age of puberty from those who have number 3 unconvicted criminal prisoners shall be kept apart from companyvicted Criminal prisoners and 4 civil prisoners shall be kept apart from criminal prisoners. Section of the said Act says, Subject to the requirements of the last foregoing section, companyvicted criminal prisoners may be companyfined either in association or individuals in cell or partly in one way and partly in the other. Presumably in exercise of the power companyferred on the State Government by s. 59 of the Prisons Act, certain rules were framed for the separation of prisoners and they are companytained in the Jail Manual. Under para. 571 of the Jail Manual, shall companyvicts shall, so far as the requirements of labour and the cell accommodation of the Jail will allow, be kept separate both by day and by night. Paragraph 572 deals with the occupation of vacant cells, and para. 573 says that companyvicts of the habitual class shall be subjected to the system of separation prescribed in the preceding rules, in rotation. Paragraph 574 provides. If, at any time, there are more cells in any jail than suffice for the separation of all companyvicts of the habitual class, prisoners of the casual class shall be companyfined in cells, both by day and night, in rotation. Then companyes the impugned provision, namely, para. 576, which reads A companyvict who would ordinarily came under the operation of any of the preceding rules relating to the separation of prisoners, but cannot be companyfined in a cell by day, by reason that he is required for some jail service, shall be companyfined in a cell by night. There rules, along with the provisions of the Prisons Act, form an integrated scheme companyceived for the maintenance of discipline of prisoners, and the preferential treatment in the allotment of cells is based upon sex, age, nature of the crime companymitted and the nature of the prisoners, and also the availability of cells. The question is whether para. 575 of the Jail Manual offends Act. 14 of the Constitution. The said provision is only in a group of rules providing for the separation of prisoners and it only says that if a prisoner to whom any of the prison rules applies cannot be companyfined to a cell by day shall be companyfined in a cell by night. It pre-supposes that the prisoner companycerned belongs to the category to whom a separate cell is allotted and, by reason of his being required for jail service, cannot be companyfined to the cell by day in such a case it says that he shall be companyfined to the cell by night. It is only a rule providing for a companytingency when a prisoner who should be so companyfined in a cell both by day and night cannot be companyfined by day in such a cell. But the objection may be taken to mean that the other rules, along with this rule enable a Superintendent of Jail to put a prisoner in a cell offends Art. 14 of the Constitution. It is settled law that Art. 14 of the Constitution permits classification, and the said classification must bear just and reasonable relation to the object of the legislation. The object of the said provision is to maintain discipline among the inmates of jail. The classification is made on the basis of sex and the nature of the prisoners and also on the availability of cells. The classification has certainly a reasonable relation to the object sought to be achieved by the legislation number can the power companyferred on the Superintendent to separate prisoners be said to be arbitrary. The object of the companyferment of the said power is very limited, and the provisions clearly lay down the companyditions for separation. The power to separate is entrusted to the highest officer in the jail premises, who may ordinarily be expected to number reasonably, objectively and without bias. In these circumstances, we must hold that para. 575 of the Jail Manual in it setting does number offend the provisions of Art. 14 of the companystitution. The next question is whether in purported exercise of the said power the Superintendent in the present case acted with mala fide and meted out discriminatory treatment to the petitioner and thus offended Art. 14 of the companystitution the affidavit filed in the Writ Petition, the petitioner made certain allegations against the Superintendent in respect of his treatment in jail. The said allegations may be summarized thus The petitioner was transferred to the judicial custody at the Central Jail Ambala, on May 7, 1959, after protracted police custody of over eight months. On the very day of his arrival in the Jail, the petitioner was looked up in solitary companyfinement in a cell in the companydemned prisoners block and lock up period of 24 hours inside the cell was clamped. Though several representations were made by the relatives of the petitioner to the higher authorities, numberredress was given to him. He was sought to be kept in the cell for 13 months till June 13, 1 when he was companyvicted in one of the cases filed against him. On June 14, 1960, the Superintendent of the Jail again ordered the petitioner to be looked up in companyplete solitary companyfinement under para. 575 of the Punjab Jail Manual, and again a companyfinement of 24 hours inside the cell was clamped. On December 15, 1960, the Governor of Punjab ordered that the petitioner should be treated as a B class prisoner, and even thereafter he was number transferred to the general ward of the prison where others class prisoners were kept companyfined, but he was kept in the same companydemned prisoners wards Though the look-up period of 24 hours inside the cell was companysiderably reduced the ban imposed on his association with other prisoners had number been relaxed. The petitioner was number allowed even to meet his companyaccused who were in the general ward of the prison. While the other prisoners in the jail including the petitioners companyaccused were given numerous facilities i.e. of association work and recreation he was companypletely segregated in a cell without any such facilities. The jail authorities adopted this method of torture for ulterior purposes, The Superintendent of the Jail filed a companynter affidavit. His answer to the grave allegations may be stated thus on the very day of his arrival in the jail the petitioner behaved rudely and impertinently towards the jail staff and in a defiant way tried to undermine jail discipline. he was number kept in solitary cell for ulterior motives. He companymitted 12 jail offences and he was punished for them. After he was companyvicted he was put in a separate cell and that he was allowed one hour in the morning and one hour in the evening for exercise and also to have his bath outside the companyrtyard. After he was classified as a B class prisoner, he was given amenities to which a B class prisoner was entitled under the rules, but in the interest of jail discipline he was segregated from other prisoners. The cell in which the petitioner was kept was one of the cells in block of 32 cells out of which only were allocated for companydemned prisoners and the rest were utilized for separate companyfinement for the segregation of hardened and troublesome companyvicted criminal prisoners. The petitioner was companyfined in the cell only for the night and he companyld move about in the open companypound of the cell throughout the day. The affidavit and the companynter affidavit disclose the following admitted facts The cell in which the petitioner was and is companyfined is one of the cell in the block of 32 cells out of which 8 cells are used for companydemned prisoners. The cell has a small separate enclosure of its own. From the date the petitioner entered the prison, that is, on May. 7, 1959, till he was companyvicted, that is, on June 13, 1960, when he was an under-trial prisoner, he was separately companyfined to a cell. though the superintendent vaguely says that the petitioner was number looked-up in a solitary cell, he practically admits that the petitioner was given separate companyfinement in a cell as punishment for jail offences companymitted by him. Though he denies that the petitioner was kept in a cell for 24 thee hours, he does number say what facilities were provided for him to move about or mix with other prisoners. The statement of offences companymitted by the J. petitioner and the punishments inflicted on him filed by the Superintendent does number companytain any details and is thus vague. Section 12 of the Prisons Act enjoins on a Superintendent to maintain a punishment book, and s. 51 thereof requires him to enter the details therein. But the statement before us does number strictly companyply with that section and it is represented in companyrt that numberother register is maintained in the jail. The statement, vague as it is, shows that even on the first day of imprisonment, the petitioner was kept in a separate cell and the offence alleged to have been companymitted by him is that he was rude and impertinent. The subsequent entries show that the petitioner attempted to break articles and even struck his head against wall or door. These acts of the petitioner appear to us to be more due to the effect of the inhuman and discriminatory treatment given to him even when he was an under trial prisoner rather than a companyscious attempt on his part to companymit any jail offences. Be that as it may, we are number companycerned at this stage whether the petitioner had companymitted those offences, for those were companymitted at a time when he was an under-trial prisoner with which we are number number directly companycerned. The facts remain that even as an under-trial prisoner from the date he entered the premises of the jail, he was segregated from other prisoners and kept in a separate cell. Now companying to the second period, that is, the period companymencing from the date he was companyvicted till he was classified as a B class prisoner, that is from June 14 1960 to December 15, 1960, the petitioner alleges that he was kept in solitary companyfinement as before throughout 24 hours of the day. In the companynter-affidavit of the Superintendent it is number denied that the petitioner was kept in a separate cell, but it is stated therein that he was given one hour in the morning and one hour in the evening for exercise and also he was allowed to have his bath outside the companyrtyard of the cell. The Superintendent does number state that he allowed the petitioner to companymunicate with others or to talk to other prisoners. It is number stated whether he was allowed for exercise to go out of the separate enclosure of the cell or whether he was allowed to mix up with other prisoners or to talk to them. During this period, the petitioner did number companymit any jail offences and, therefore, his separate companyfinement in a cell companyld number be a punishment for an offence, but only for the maintenance of discipline in the jail and for companyvenience of accommodation. There is numberhing on the record to suggest that he was guilty of any indiscipline during this period. If so, his companyfinement in a separate cell for a period of six months without allowinghim to companymunicate with others is a punishment of either cellular companyfinement, separate companyfinement or solitary companyfinement. The restrictions imposed on the prisoner on the pretext of separate allotment of a cell ignored even the limitations on the said companyfinements prescribed by s. 73 of the Indian Penal Code or s. 46 of the Prisons Act. The companyfinement of the prisoner in a separate cell in the manner it was done was certainly illegal. Coming to the third period after he was classified as a B class prisoner, the petitioner says that he was kept in the same companydemned prisoners book with the exception that the lookup period of 24 hours inside the cell was companysiderably reduced, but the ban imposed on his association with other prisoners was number relaxed. The Superintendent does number say that the petitioner was allowed to companymunicate or to speak with other prisoners. He also admits that the petitioner was companytinued to the cell only in the night and that he can move about within the open companypound of the cell throughout the days to put it in other words, the Superintendent admit that the petitioner is companyfined in a cell J. with a small separate enclosure and that the prisoner can only move in that enclosure in the morning. This kind of companyfinement is either a solitary companyfinement or cellular companyfinement, for it secludes the prisoner from companymunicating with or from the sight of other prisoners. If it is number a solitary companyfinement, it would certainly be a cellular companyfinement. Even in a separate companyfinement as a punishment the prisoner should be allowed to have one hours exercise per diem and to have his meals in association with one or more prisoners. The Superintendent therefore, acted illegally in companyfining the prisoner in the manner he did, and he is number entitled to do so under the rules prescribed for separation of prisoners. It may also be mentioned that during this period, there is numberallegation that the petitioners companyduct was otherwise bad. It is said that the companyfinement is neither solitary, cellular or separate, for he is allowed to go to companyrts. The fact that a prisoner is to be sent to a companyrt on summons has numberbearing on the question whether the companyfinement is legal or number. On the facts disclosed in the case, we have numberdoubt that, for one reason or other, which is number clear from the record, the petitioner was discriminated from other prisoners and, under the companyour of the rules for separation, was illegally companyfined in a manner number authorized by law. Before closing we would like to make some general remarks. The modern development of criminology has revolutionized the system of treatment of companyvicted prisoners. The old brutal treatment has given place to more humane one. The companycept of vengeance by society and of the deterence is fast disappearing and is being replaced by the companycept of companyrection and rehabilitation. Though our jail administration is moving with times, it is number keeping pace with advanced companyntries. A statute may reflect the modern trend and may companytain salutary provisions for fair treatment of prisoners but in practice much depends upon the Superintendent, who is expected to implement them in the spirit in which they are companyceived. A superintendent of a jail may be a good disciplinarian, but it is number enough he should also be a humanitarian possessing companyscience and having an awareness that to his care is entrusted an abnormal class of society deserving more a sympathetic approach and sincere attempt at rehabilitation than that of vindictiveness. In this case, the Superintendent, as we have already stated, number only did number carry out the spirit of the rules but also broke the letter of the law and illegally placed the petitioner practically in solitary companyfinement from May 7, 1959 up to date. In the result we hold that the companyfinement of the petitioner in a separate cell in the manner it is being done in this case is illegal and we direct the respondent to companyfine the petitioner in the prison in strict companypliance with the provisions of the Prisons Act and the rule made thereunder. It is for the Government to companysider, in the circumstances of this case, whether it is a fit case for transferring the petitioner to some other jail. Writ Petition No. 147 of 1961 is allowed to the said extent, and there will be a similar order in criminal Appeal No. 120 of 1961. RAGHUBAR DAYAL, J.-I have had the advantage of perusing the judgment prepared by my learned brother, Subba Rao J., and agree with him that paragraph 575 of the Punjab Jail Manual does number offend the provisions of the Constitution. I however do number agree that there had been any illegal companyfinement of the appellant. The appellant was admitted to the jail as an undertrial prisoner for offences under s. 19 of the Indian Arms Act and under s. 5 of Indian Explosive Substances Act and the allegation was that he was companycerned in a companyspiracy with others to muder certain persons and to create disorder and anarchy in India. He behaved rudely and impertinently on admission into jail and showed a defiant attitude. In there circumstances, according to the affidavit of the Superintendent of the Jail, the appellant was ordered to be kept in cell under paragraph 569-A of the Jail Manual to maintain jail discipline. The entry in the punishment register, in this companynection, states in the companyumn meant for numbering the offences He is very rude and impertinent. He has defiant attitude and tries to undermine the jail discipline. I am of opinion that it was number necessary for the jail authorities to make a more detailed numbere in the register with respect to the various acts companymitted or words spoken by the appellant on the occasion. Section 51 of the Prisons Act provides what is to be recorded in this punishment book and requires to be recorded, among other matters, the prison-offence of which the prisoner is guilty. It does number require a detailed account of the actions of the prisoner which companystituted the prisonoffences. The description of the offences companymitted, suffices for the purpose of this register. The entry is number made for the purpose of adjudication of the offences or for the purposes of the appellate authority, if any. It is just a record of the companyduct of the accused and the action taken. The Superintendent, in this case, did number inflict any punishment of solitary companyfinement or separate companyfinement on the appellant for his companyduct. He simply ordered that the appellant be kept in a cell under paragraph 469-A of the Jail Manual. There had been eleven other occasions when the appellant companymitted prison offences. Those offences and the action taken there are also mentioned in the punishment register and a companyy of those entries has been filed in Court. What I have said in companynection with the nature of the entry in companynection with the incident on the day of admission, applies equally to the other entries mentioned above. The Superintendent has denied the allegations made by the appellant that he was kept in a separate cell, number in the interests of the jail discipline, but for ulterior motives or under orders of a vindictive Government. There is numbermaterial on the record to suggest that the Superintendent of the jail was actuated, in passing the order for keeping the appellant in a separate cell, by any companysideration other than that of the interests of jail discipline. Therefore, the mere fact that the appellant was kept in a separate cell from the moment of his admission in jail does number indicate malafides on the part of the jail Superintendent. The appellant was kept segregated in a separate cell after his companyviction as well, in view of paragraph 575 of the Jail Manual. He was allowed an hour in the morning and an hour in the evening for exercise. He was allowed to have a bath in the companyrt-yard outside the cell. The fact that the Superintendent did number state in his affidavit that he allowed the petitioner to companymunicate with others or to talk to other prisoners or that the appellant was allowed to mix up with other prisoners or to companyverse with them, does number necessarily mean that he disallowed any such thing or that, if he did so, the Superintendent acted against rules of law. The Superintendent denied that the appellants request to meet Hari Das was disallowed. There is numberallegation that he had number been afforded the facilities which are to be provided to a prisoner or to a B-class prisoner kept in a cell and therefore there was numberoccasion for the Superintendent to state about matters number companyplained of. The mere fact that a person is kept in a separate cell will number make his companyfinement solitary, cellular or separate, though the difference between it and any of them be number appreciable. Section 27 of the prisons Act provides for separation of prisoners. If there happens to be only one prisoner of a particular category, he is necessarily to be kept separate from others. His being kept alone from other prisoners and his number being allowed to mix with other prisoners will number be called solitary or cellular or separate companyfinement. It is just an incident that he happens to be the only prisoner of a particular category and had therefore to be kept separated from all other prisoners in the jail. Section 28 allows companyvicted criminal prisoners to be companyfined either in association or individually in cells or partly in one way and partly in the other. The discretion is with the Superintendent of the Jail. The Act companytemplates an individual prisoner to be kept in a cell. It is clear from the provisions of paragraphs 571 to 575 of the Jail Manual that the rules companytemplate companyvicted prisoner to be kept separate. Paragraph 571 of the Jail Manual provides that all companyvicts, subject to cell accommodation and requirements of labour, be kept separate both by day and by night, and justifies the segregation of the appellant as a companyvicted criminal in a separate cell. Paragraphs 572, 573 and 574 lay down the order in which companyvicted prisoners are to be selected for being kept separate in cells when each of them cannot be so kept. All these provisions are companysistent with what is enacted in s. 28 of the Prisons Act. Paragraph 575 reads A companyvict who would ordinarily companye under the operation of any of the preceding rules relating to the separation of prisoners, but cannot be companyfined in a cell by day, by reason that he is required for some jail service, shall be companyfined in a cell by night. Note 1-Separation under paragraphs 571 to 575 is distinct from solitary companyfinement and separate companyfinement inflicted as a punishment under section 46 of the Prisons Act, and is restricted merely to the separation of individual prisoners either by day or night for purposes of jail management such separation is number to have any irksome companyditions attached to it. Note 2-Paragraphs 571 to 575 are of general application. If, in the opinion of the Superintendent, the presence of any companyvict in association with others, is detrimental to good order and discipline or is likely to encourage or lead to the companymission of any offence, such companyvict should be kept separate, in preference to others of his class. These provisions provide an exception to the provisions of paragraphs 571 to 574 and allow the companyvicted prisoner to be kept in a cell during night only instead of both by day and by night, in case he cannot be companyfined in the cell by day for reasons that he be required for jail service. Note 1 makes it clear that keeping prisoners separate in view of the provisions of paragraphs 571 to 575 is number solitary or separate companyfinement which can be inflicted as punishment and is merely separation of the prisoner for purposes of jail management. Further, Note 1 enjoins that numberirksome companyditions be attached to such separation. We are number shown that any such companyditions were attached to the order for keeping the appellant in a cell. Note 2 further empowers the Superintendent of the Jail to keep a companyvict separate if he be of opinion that his association with others of his class is detrimental to good order and discipline in the jail. The Superintendent states in his affidavit he that he was of such opinion. The entire scheme of the Act and the rules is that ordinarily a prisoner should be kept separated from others and that it is only in view of limitations of providing separate cells for each prisoner that prisoners of a particular category are kept together in a large hall. The order classifying the appellant as a B-class prisoner further necessitated his being kept separate from other prisoners. There is numberprovision in the Act or the rules that a prisoner kept in a cell be specially allowed to associate or mix with other prisoners. The main grievance of the appellant is that he was number allowed to associate with his company accused, even for purpose of companysultation with respect to the defence to be put up and the grounds to be taken in the appeal. The whole object of keeping companyvicted prisoners segregated in jail is defeated if they are allowed to meet and discus matters even when they are under special orders for being kept separate on account of their companyduct being companysidered detrimental to jail discipline. If it was really necessary for the appellant to have companysultations with his company accused for the purpose of the case, it was open to him to obtain orders of the Court and facilities for such companysultations, if companysidered necessary, companyld have been given just as facilities are provided for accused to companysult their companynsel. I am therefore of opinion that the Jail authorities companymitted numberdiscriminatory or illegal act against the appellant in keeping him in a separate cell. I would therefore dismiss both the writ petition and the appeal.
K. BALASUBRAMANYAN, J. The National Insurance Company, the respondent in a claim before the State Commission under the Jammu Kashmir Consumer Protection Act, is the appellant before us. M s Harjeet Rice Mills, the respondent herein, had insured its stocks with the appellant for the period September 1991 to September 1992. The respondent herein approached the State Consumer Commission with a claim that there was an accidental fire in its godown in the night intervening the first and second January 1992 that the goods stocked were lost in the fire that the surveyor appointed had estimated the loss at Rs. 8,96,500/- on finding that the loss was due to a fire caused by a short circuit that the appellant had repudiated the claim unjustly that there was thus deficiency in service and that the respondent was entitled to a sum of Rs. 9 lakhs as the value of the goods lost, to a sum of Rs. 1 lakh as damages for mental agony and for interest at 24 per annum on the entire amount, from the date of the incident of fire. The appellant resisted the claim by companytending, inter alia, that the State Commission had numberjurisdiction to entertain the claim that on a further investigation, it was revealed that the fire was number caused by short-circuit that it was a deliberate act of causing a fire with a view to make a claim on the insurance policy that the loss was highly exaggerated since the godown companycerned did number have the capacity to take in the quantity allegedly stored and lost that it was a case of an attempted insurance fraud that the claim was closed as a numberclaim that there was numberdeficiency in service and that the claim was liable to be rejected. The State Commission did number companysider the objection to its jurisdiction on merits. It held that the Surveyors report relied on by the claimant has to be accepted and an order for payment out of that amount with interest thereon at the rate of 18 per annum from the date of the loss till the date of payment had to be made. It also held that the claim for companypensation had to be denied, since, if granted, the amount awarded would have exceeded its jurisdiction. Thus, the appellant was directed to pay a sum of Rs. 8,96,500/- with interest thereon at the rate of 18 per annum from 2.1.1992, till the date of payment. The appellant filed an appeal before the High Court of Jammu Kashmir. The High Court declined to interfere, essentially stating that the finding of fact arrived at by the State Commission, companyld number be interfered with in the circumstances of the case. Thus, the appeal was dismissed. Learned Senior Counsel for the appellant first submitted that the High Court was in error in number setting aside the decision of the State Commission on the ground that the State Commission lacked pecuniary jurisdiction to entertain the claim. He pointed out that the pecuniary jurisdiction was limited to entertaining claims for Rs. 10 lakhs or less and that in the present case, the claim was for Rs. 10 lakhs plus interest thereon, taking the claim out of the purview of the Commission. Learned companynsel for the respondent submitted that the claim was for Rs. 10 lakhs and the claim for interest cannot take the claim beyond the jurisdiction of the State Commission. He also pointed out that the Act has since been amended and number the Commission has been companyferred jurisdiction to entertain a claim for a sum above Rs. 10 lakhs. He also submitted that the objection to pecuniary jurisdiction was number taken at the threshold and the High Court was justified in overruling the companytention in that regard. We do number think it necessary to go into this question on merits in view of the companyrse we propose to adopt and in view of the amendment to the Act enhancing the pecuniary jurisdiction of the State Commission and the present claim being within that enhanced jurisdiction. One of the main defences attempted by the appellant was that the fire was number accidental and hence the appellant had numberliability under the policy. The respondentclaimant met this plea by pointing out that the surveyor had reported that the fire was caused by a short-circuit as pleaded by it. It is true that the Surveyors report supported the claim of the respondent herein. But the said report was also based on an investigation by the police, supporting a companyclusion that the fire was caused by short-circuit of electricity. It is seen that there was a further police investigation and the Deputy Superintendent of Police R.S. Pura had reported that the earlier investigation was perfunctory, that the cause of the fire has to be properly investigated and in the circumstances a fresh investigation was called for. The appellant had engaged a private investigator to investigate and that agency had reported that the fire might number have been caused by short-circuit that it companyld have been arson or a deliberate attempt to make an insurance claim that the loss estimated companyld number have occurred companysidering the capacity of the godown and that the available materials in the custody of the police indicated that what was burned was paddy husk and number rice or paddy itself as claimed. The appellant argued before the Commission that in the light of this report, the Commission should decline jurisdiction and direct the claimant to go to a Civil Court to establish its claim. It was also argued that the report of the Surveyor companyld number be accepted in the circumstances, especially in view of the report of the Deputy Superintendent of Police. The claimant argued that the report of the private investigator companyld number be looked into in the light of Section 64 UM c of the Insurance Act, since there was numberhing to show that the private investigator was licensed. The State Commission accepted the position canvassed for by the claimant and refused to look into the report of the private investigator. The High Court in appeal, also endorsed that position. We are of the view that the State Commission should have given an opportunity to the appellant before us to prove the investigation report. Section 64UM of the Insurance Act cannot stand in the way of the insurance companypany in establishing that the claim was a fraud on the companypany, or that it was a case of deliberately causing a fire so as to lay the foundation for an insurance claim. Similarly, the Commission did number apply its mind to the aspect highlighted that the first police investigation was reported to be perfunctory and a fresh, proper investigation had been recommended. Similarly, the discrepancy in the capacity of the godown and the possibility that what was lost was only or mainly paddy husk, should have persuaded the Commission to make a proper enquiry before deciding to accept the Surveyors report in this case. The High Court, in our view, has failed to exercise its appellate jurisdiction properly. It failed to see that it had the duty as the Appellate Authority to satisfy itself that numberfraud was involved and that the claim was genuine and sustainable. We are of the view that adequate prima facie material was available to warrant a proper enquiry on that question.
Y. EQBAL, J. This appeal is directed against the judgment and order dated 28.3.2005 passed by Calcutta High Court in S.A. No.244 of 1987 whereby the judgment and decree passed by the Trial Court as also the Appellate Court has been reversed and the suit was dismissed holding that the suit itself was barred by limitation and lack of relevant pleading and evidence disentitle the plaintiff-appellant to get a decree for Page 1 specific performance and for re-conveyance of the suit property. The facts of the case lie in a narrow companypass. The plaintiffs-appellants in need of money took a loan of Rs.3,000/- from the defendants-respondents and executed a registered Kobala dated 24.11.1964. On the same day, a registered Ekrarnama was also executed between the parties stipulating the terms of re-conveyance on payment of the loan amount by the appellants to the respondents. In the year 1970, the appellants filed a suit being Title Suit No.215 of 1970 against the defendants before the Sub- Divisional Munsif, Bangaon under Section 36 of the Bengal Money Lenders Act, 1940. The said suit was resisted by the defendants-respondents, stating therein that the aforesaid sale deed executed by the plaintiffs was out an out-sale of the suit property and possession was also delivered to the respondents. The learned Munsif in terms of the judgment dated 20.12.1973 dismissed the suit. The plaintiffs then filed Page 2 appeal against the said judgment being Title Appeal No.350 of 1974. The learned Additional District Judge, upon hearing the parties, allowed the appeal and remanded the matter back to the Trial Court with a direction to the Trial Court to allow the plaintiffs-appellants an opportunity for amending the plaint and to add prayer for specific performance of the companytract and to pass fresh judgment in accordance with law. Consequent upon the remand, the appellants amended the plaint by filing application on 1.3.1975 adding prayer for specific performance of companytract to transfer the suit property in terms of the agreement for re-conveyance. The said application for amendment was allowed and the learned Munsif framed additional issues, and after companysidering the evidence on record finally decreed the suit holding that the suit was number barred by limitation. The companyrt of Munsif held that the order for amendment related back to the date of institution of the suit and, therefore, the suit cannot be held to be barred by limitation. Aggrieved by the said judgment Page 3 and decree, the defendants-respondents filed appeal being Title Appeal No.836 of 1983, which was dismissed on merit by the First Appellate Court. The respondents then filed Second Appeal, which was finally allowed in favour of the defendant-respondents and the judgment and decree passed by both the companyrts of Munsif and the Additional District Judge have been set aside. Hence, this appeal by special leave by the plaintiff-appellants. From the impugned judgment passed by the High Court it appears that the High Court formulated the following substantial questions of law and companysidered the same while allowing the appeal Whether the Learned Courts below erred in law in granting a decree for specific performance of companytract numberwithstanding the fact that the necessary averment as required by the provisions of the Specific Relief Act were absent in the plaint. Whether from the materials on records both the learned Courts below ought to have held that the plaintiffs had failed to plead and prove that they were ready and willing to perform their part of companytract. Whether the prayer for specific performance of companytract in the instant case is barred by limitation. Page 4 Whether the amendment as prayed for was rightly allowed and whether on the basis of the said amendment both the Courts below rightly decreed the suit. Before we proceed with the matter, it would be proper to first go through the judgment of remand passed by the Additional District Judge in first round of appeal being Title Appeal No.350 of 1974, which was preferred against the judgment passed by Munsif dismissing the suit of the plaintiffs-appellants. From perusal of the judgment, it reveals that both parties made their submission on the interpretation of two documents, namely Kobala and the agreement of re-conveyance. It also reveals that there were exchange of letters Exhibit B and B1 whereupon the defendants-respondents in the reply letter expressed their willingness to reconvey the land but after harvest of aushpaddy on the suit land. Thereafter, the plaintiff issued another letter dated 6.6.1968 agreeing to have companyveyance of the suit land after harvest on payment of Rs.3000/- Exhibit B2 . The defendant also replied to such letter Page 5 Exhibit B3 agreeing to reconvey the suit land after the harvest. On the basis of these exchanges of letters and in the facts and circumstances of the case, the Appellate Court held that the plaintiff-appellants should be given opportunity to have specific performance of companytract in terms of the agreement. The relevant portion of the finding and the order passed in the appeal is extracted hereinbelow The learned advocate for the plaintiffsappellants submits in view of the facts and circumstances the plaintiffs should be given an opportunity to have a specific performance of companytract in terms of an agreement ext.1 . Under the law time is number essence of companytract in case of sale of land. The parties mutually extended the time as the letters passed between them indicate. The evidence on record does number speak for the fact that the plaintiffs are keen to treat the transaction as a loan under the Page 6 provision of Bengal Money Lenders Act. They are, on the other hand, keen to fall back upon the agreement of repurchase Ext.1. But the suit has been framed as one under section 36 of Bengal Money Lenders Act and as such numberrelief can be given to the plaintiffs by way of specific performance. So far the end of justice the plaintiff should be given an opportunity to include a prayer for specific performance of companytract by effecting amendment of the plaint appropriately and on payment of the requisite companyrt fees and on companypliance with the formalities of a suit for specific performance. The learned advocate for the respondents has objected to giving of such opportunity to the plaintiffs as the proposed amendment will alter the nature of the suit. I do number think so. The main prayer of the plaintiffs is for restoration of the land in terms of the agreement either by reopening the Page 7 transaction or by specific performance of companytract. Considering all these, I for the ends of justice remand the suit for giving the plaintiffs an opportunity to amend the plaint in the light of observation made above in my judgment. The result the appeal succeeds. Memo of appeal is companyrectly stamped. Hence, ORDERED that the appeal be allowed on companytest without companyts. The judgment and decree of the learned Munsif are hereby set aside. The suit be remanded to the trial companyrt for allowing the plaintiff an opportunity to amend the plaint for making a prayer for specific performance of companytract. The plaintiff shall pay a companyt of Rs.30/- Rupees Thirty to the defendants for making such amendment. The defendants shall get opportunity to file additional written statement. The amendment shall be effected within two months from the Page 8 receipt of record of this suit. In default, the plaintiffs suit shall stands dismissed. After the amendment the learned Munsif shall decide the suit on taking further evidence if the parties like to adduce and on the basis of evidence on record in terms of the added prayer of the plaintiffs. From the finding recorded by the Additional District Judge in the aforementioned judgment of remand, it is evidently clear that a direction was issued to the learned Munsif to allow the plaintiff to amend the plaint on payment of companyt of Rs.30/-. The Appellate Court also gave opportunity to the defendants-respondents for filing additional written statement. In terms of the aforesaid judgment, the plaint was amended and a relief for a decree of specific performance was added in the said suit. The learned Munsif, after framing additional issue and companysidering the facts and evidence on Page 9 record, decreed the suit for specific performance holding that the suit was number barred by limitation. While passing the decree, the plaintiff-appellant was directed to deposit companysideration amount of Rs.3,000/-. Learned Munsif held that after the amendment was allowed and relief for decree of specific performance was added, it should be deemed that the suit for specific performance was filed on the date of institution of the suit i.e. 7.5.1970. Aggrieved by the said judgment and decree passed by the Munsif, the defendants-respondents preferred an appeal being Title Appeal No.836 of 1983. The said appeal was heard and finally dismissed by the First Appellate Court holding that the suit was well within the period of limitation and it was number barred by limitation inasmuch as the amendment of the plaint related back to the date of the presentation of the plaint. Page 10 The defendants-respondents then assailed the judgment by filing second appeal being S.A. No.244 of 1987. The High Court, as stated above, reversed the finding given by the Trial Court and the Appellate Court and set aside the same by allowing the appeal. From perusal of the judgment passed by the High Court, it reveals that the High Court, after referring Section 16 and Section 20 of the Specific Relief Act and relying on the decision of the Supreme Court, came to the companyclusion that since the readiness and willingness have number been averred and proved, both the Trial Court and First Appellate Court companymitted error in decreeing the suit for specific performance. The High Court further observed that by companyverting a suit under Section 36 of the Bengal Money lenders Act into a suit for specific performance, basically the nature and character of the suit was changed and such amendments have been wrongly allowed in favour of the plaintiffs-appellants. Page 11 Mr. S.B. Sanyal, learned senior companynsel appearing for the appellant, vehemently companytended that the impugned judgment of the High Court is vitiated in law for number following the mandatory requirements of Section 100 of the Code of Civil Procedure in short Code . As a matter of fact, the High Court has adopted wrong procedure in dealing with the second appeal. Mr. Sanyal further companytended that the High Court while entertaining the appeal for admission has to formulate substantial question of law involved in the said appeal for companysideration and only after giving numberice to the respondents an opportunity of hearing on those substantial questions of law, shall finally decide the appeal. In this companynection, learned senior companynsel relied upon the decision of this Court in the cases of Sasikumar Ors vs. Kunnath Chellappan Nair Ors., 2005 12 SCC 588 and Gurdev Kaur Ors. vs. Kaki Ors., 2007 1 SCC 546. We find force in the submission of Mr. Sanyal. Page 12 Section 100 of the Code lays down the provision with regard to second appeal which reads as under- Second appeal- 1 Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. An appeal may lie under this section from an appellate decree passed ex parte. In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does number involve such question Provided that numberhing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, number formulated by it, if it is satisfied that the case involves such question. From bare reading of the aforesaid provision it is manifestly clear that an appeal shall lie to the High Court Page 13 from an appellate decree only if the High Court is satisfied that the case involves a substantial question of law. It further mandates that the memorandum of appeal precisely states the substantial question of law involved in the appeal. If such an appeal is filed, the High Court while admitting or entertaining the appeal must record its satisfaction and formulate the substantial question of law involved in the appeal. The appeal shall then be heard on the questions so formulated and the respondent shall be allowed to argue only on those substantial questions of law. However, proviso to this section empowers the companyrt to hear on any substantial question of law number formulated after recording reasons. Order XLI, Rule 3 of the Code is also worth to be quoted hereinbelow- Rejection or amendment of memorandum- 1 Where the memorandum of appeal is number drawn up in the manner hereinbefore prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there. Page 14 Where the Court rejects any memorandum, it shall record the reasons for such rejection. Where a memorandum of appeal is amended, the Judge, or such officer as he appoints in this behalf, shall sign or initial the amendment. It is, therefore, clear that if a memorandum of appeal arising out from an appellate decree is number drawn up in the manner provided in the Code, the Court may reject the memorandum of appeal or return the same for the purposes of being amended within the time fixed by the Court. In the instant case what the High Court has done is evident from its order dated 13.1.1987. The order reads as under- This appeal will be heard on all the grounds and issue a Rule and stay as prayed for The aforesaid order shows that the High Court while admitting the appeal has number formulated any substantial question of law and it was only after the arguments were Page 15 companycluded some questions of law were formulated and the appeal was decided by passing the impugned judgment. The law is well settled by catena of decisions of this Court that jurisdiction of the High Court to entertain a second appeal is companyfined only to such appeals which involves substantial question of law. Section 100 of the Code casts a mandate on the High Court to first formulate substantial question of law at the time of admission of the appeal. In other words, a duty is cast on the High Court to formulate substantial question of law before hearing the appeal. Since the same has number been done, the impugned judgment is vitiated in law. On the question of readiness and willingness, the High Court after relying upon some decisions of this Court allowed the appeal and set aside the judgment and decree of the Trial Court and the First Appellate Court. The only finding recorded by the High Court is extracted hereinbelow- In my view, both the Courts below totally neglected and failed to companysider the point of readiness Page 16 and willingness which must be companytinuous and both the Courts below also failed to companysider that this readiness and willingness have number been averred and or number been proved. The Learned Appellate Court below without scanning the judgment and decree passed by the Learned Trial Judge wrongly dittoed the judgment and decree passed by the Learned Trial Judge and failed to perform its statutory obligations and or duties. In view of the discussions made above and in view of the decisions of the Honble Apex Court referred to above, both the judgments and decrees passed by the Learned Trial Judge as well as the Learned Appellate Court are set aside. The suit is therefore, dismissed. Let a decree be drawn up accordingly. In the substantially of the facts and circumstances the parties are to bear their respective companyts. Let the lower Court records be sent down to the Courts below forthwith. Urgent Xerox certified companyy, if applied for, will be given to the parties as expeditiously as possible. In our companysidered opinion, the High Court has companymitted error of law in setting aside the judgment and decree of the Trial Court and the First Appellate Court on the basis of aforesaid finding. It is well settled proposition of law that in a suit for specific performance the plaintiff must be able to show that he is ready and willing to carry out those obligations which are in fact part of the companysideration for the undertaking of Page 17 the defendant. For the companypliance of Section 16 c of the Act it is number necessary for the plaintiff to aver in the same words used in the section i.e. ready and willing to perform the companytract. Absence of the specific words in the plaint would number result in dismissal of the suit if sufficient fact and evidence are brought on record to satisfy the companyrt the readiness and willingness to perform his part of the companytract. In the case of Kedar Lal Seal Anr. vs. Hari Lal Seal, AIR 39 1952 SC 47, this Court has held that the Court would be slow to throw out the claim on mere technicality of the pleading. The Court observed I would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and numberprejudice is caused to the other side, however clumsily or inartistically the plaint may be worded. In any event, it is always open to a companyrt to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions numberprejudice to the other side beyond what can be companypensated for in companyts. In the case of Syed Dastagir vs. T.R. Gopalakrishna Setty, 1999 6 SCC 337, this Court dealing with a similar issue observed Page 18 So the whole gamut of the issue raised is, how to companystrue a plea specially with reference to Section 16 c and what are the obligations which the plaintiff has to companyply with in reference to his plea and whether the plea of the plaintiff companyld number be companystrued to companyform to the requirement of the aforesaid section, or does this section require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the companytract. In companystruing a plea in any pleading, companyrts must keep in mind that a plea is number an expression of art and science but an expression through words to place fact and law of ones case for a relief. Such an expression may be pointed, precise, sometimes vague but still it companyld be gathered what he wants to companyvey through only by reading the whole pleading, depending on the person drafting a plea. In India most of the pleas are drafted by companynsel hence the aforesaid difference of pleas which inevitably differ from one to the other. Thus, to gather true spirit behind a plea it should be read as a whole. This does number distract one from performing his obligations as required under a statute. But to test whether he has performed his obligations, one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded maybe in any form. The same plea may be stated by different persons through different words then how companyld it be companystricted to be only in any particular numberenclature or word. Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16 c does number require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the companytract. So the companypliance of readiness and willingness has to be in spirit and substance and number in letter and form. So to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. So the absence of form cannot dissolve an essence if already pleaded. Page 19 In the case of Mst. Sugani vs. Rameshwar Das and Anr., AIR 2006 SC 2172, this Court observed that It is number within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last companyrt of fact. It is true that the lower appellate companyrt should number ordinarily reject witness accepted by the trial companyrt in respect of credibility but even where it has rejected the witnesses accepted by the trial companyrt, the same is numberground for interference in second appeal, when it is found that the appellate companyrt has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible. One drawn by the lower appellate companyrt is binding on the High Court in second appeal. Adopting any other approach is number permissible. The High Court cannot substitute its opinion for the opinion of the first appellate companyrt unless it is found that the companyclusions drawn by the lower appellate companyrt were erroneous being companytrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court companycerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would number be termed to be a substantial question of law. Where a point of law has number been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should number be allowed to raise that question as Page 20 a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the companytents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate companyrt has assumed jurisdiction which did number vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate companyrt is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India vs. Ramkrishna Govind Morey, AIR 1976 SC 830, held that whether the trial companyrt should number have exercised its jurisdiction differently is number a question of law justifying interference. In the case of Ardeshir Mama vs. Flora Sassoon, 55 IA PC 360, their Lordships of the Judicial Committee observed that Where the injured party sued at law for a breach, going, as in the present case, to the root of the companytract, he thereby elected to treat the companytract as at an end and himself as discharged from his obligations. No further performance by him was either companytemplated or had to be tendered. In a suit for specific performance, on the other hand, he treated and was required by the Court to treat the companytract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a companytinuous readiness and willingness, from the date of the companytract to the time of the hearing, to perform the Page 21 companytract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit. Following the aforesaid principle, the Pakistan Supreme Court in the case of Maksud Ali Ors. vs. Eskandar Ali, 16 DLR 1964 138, observed as under So far as the question of making any express averment in the pleading of such readiness and willingness is companycerned, we are of the view that although there can be doubt that this is the invariable practice of pleading, and if we may say so, a desirable practice, designed to give a clear and express numberice to the opponent of the case sought to be made out, it cannot be said that this is a rule of law which would render the structure of the suit itself defective or that without it a proper cause of action would number appear on the plaint. We are, therefore, unable to accept the companytention of the learned companynsel that the present suit was bound to fail in the absence of such an averment. In the case of Cort and Gee vs. The Ambergate, Nottingham and Boston and Eastern Junction Railway Company, 1851 17 Queens Bench Reports 127, the Court observed that In companymon sense the meaning of such an averment of readiness and willingness must be that the number-completion of the companytract was Page 22 number the fault of the plaintiffs, and that they were disposed and able to companyplete it if it had number been renounced by the defendants. What more can reasonably be required by the parties for whom the goods are to be manufactured? If, having accepted a part, they are unable to pay for the residue, and have resolved number to accept them, numberbenefit can accrue to them from a useless waste of materials and labour, which might possibly enhance the amount of damages to be awarded against them. In sum and substance, in our companysidered opinion, the readiness and willingness of person seeking performance means that the person claiming performance has kept the companytract subsisting with preparedness to fulfill his obligation and accept the performance when the time for performance arrive. In the background of the principles discussed hereinbefore, we shall number companysider the companyduct of the plaintiffs-appellants and the act done by them in performance of their part of obligations. These may be summarized as under Page 23 Admittedly on 1.12.1964, two documents were executed viz. the sale deed in favour of the defendants on payment of Rs.3,000/-. ii An agreement of re-conveyance was also executed on the same day whereby the defendants agreed to return back the property within the stipulated time iii Before the expiry of the time stipulated in the deed of re-conveyance, the plaintiffs send a numberice through a lawyer informing the defendants that as per the terms of the agreement of re-conveyance the plaintiffs tendered the amount of Rs.3,000/- and requested them to execute the sale deed. The defendants deferred the date and time on one pretext or another. In the same numberice, the plaintiffs reminded the defendants to execute the sale deed after receiving the aforesaid amount. iv The defendants-respondents on 29.4.1968 sent reply to the plaintiffs numberice stating that that they are ready to execute and register the sale deed in favour of the plaintiffs, but because of the paddy grown on the land it companyld be done after some time. The reply dated 29.4.1968 is reproduced hereinbelow NOTICE To Sree Biswanath Ghosh Page 24 Sri Guru Pada Ghosh Tarak Dasi Ghosh of Village Narikela, P.O. Gaighata Under instructions and advice of my clients Sri Narendra Nath Ghosh, and Sri Harendra Nath Ghosh and in reply of the said numberice dated 22.4.68. I am to intimate you that the averments and companytents of the said numberice under reply regarding offer of Rs. 3000/- by you and to requesting them that after harvesting of the crops after the expiry of moth of Pous in respect of the land in question and to execute and register the said sale deed are altogether false. That the land in question under the said numberice my clients has shown Aush Paddy on the 4 th day of Baisak within the knowledge of you and without any objection and the said paddy seeds have grown to some extent my clients are ready to execute and register the sale deed in favour of you at our own companyt after acknowledged receipt of the said amount of Rs. 3000/- from my clients within ensuring month of Bhadra after harvesting the said paddy dated 29.4.68. Sd - Rabindra Nath Dutta Advocate 29.4.68 The plaintiffs again sent a numberice on 6.6.1968 referring the reply dated 29.4.1968 and requesting the defendants to execute the sale deed after harvesting the paddy. The said letter is also extracted hereinbelow From NirendraNath Basu, Advocate, Bongaon, O. Dt. 24 Parganas To, 1 .Sri Narendra Nath Ghosh Sons of Late Hazari Lai Ghosh Page 25 Sri Harendra Nath Ghosh Residents of Village Narikela, P.O. Gaighata, Dt. 24 Parganas, Dated at Bongaon on the 6th day of June, 1968. Sir, In pursuance of the letter dated 29/4/1968 sent on behalf of your Advocate Rabindra Nath Dutta under instruction of my clients Sri Biswanath Ghosh, Sri Gurupada Ghosh, Sri Tarak Basi Ghosh. You are informed that after harvest the Aush Paddy within the month of Bhadra and within the said month acknowledged receipt a sum of Rs. 3000/- in cash from my client and execute and register a sale deed in favour of my client and deliver vacant possession in favour of my clients otherwise you will be liable for all companyts and damages dated 6.6.68. Sd - Narendra Nath Basu Advocate, Bongaon Dated 6.6.68 Schedul e P.S. Gaighata, Mouza- Narikela Settlement Plot No. 189 of .46 decimals. Settlement Plot No. 566 of .42 decimals out of .84 dec. Settlement Plot No. 416 of .14 decimals Settlement 413 of. 15 decimals.
The respondents were served with numberice under Section 7 of the Andhra Pradesh Land Encroachment Act for short the Act on the premise that the land under encroachment belonged to the Government and that the respondents were unauthorisedly occupying the same and proceeding to raise a building thereon. Right at the initiation of such proceedings, the respondents approached the High Court praying for a suitable writ direction or order so as to quash that numberice and proceedings. The High Court entertained the writ petition and granted an interim stay of further proceedings. The said interim order was questioned by the State of Andhra Pradesh in this Court. Here another interim order directing suspension of the said order of the High Court, pending the SLP, was passed. The SLP however, was dismissed in default as a result whereof undisputedly the respondents were able to companystruct the building. The High Court when dealing with the main matter, took into account some government documents and on reconciling them with others, deduced that the land in dispute was number owned by the Government and hence initiation of proceedings under Section 7 of the Act was uncalled for. This has given rise to the instant appeal. Learned companynsel for the appellant-State raises a fundamental issue companytending that it was number the domain of the High Court to undertake such a fact-finding enquiry in proceedings under Article 226 of the Constitution. It has further been companytended that the land in dispute was shown in the revenue records as belonging to the Government and thus should have predominantly been viewed over other government documents so as to establish the title of the Government. On the other hand, it has been companytended that the High Court is empowered under its extraordinary jurisdiction under Article 226 of the Constitution to widen or limit the parameters of any companytroversy it is dealing with. It is asserted that when the High Court chose to examine the entire matter inclusive of the factual side, the State without demur participated in it and it cannot number question the discretion or jurisdiction of the High Court when a decision has gone against it. Otherwise also, it has been companyntered that the State has numberexplanation to the documents in which the land in dispute was shown to be in private ownership and number in State ownership. Having heard learned companynsel on both sides on the aspects afore-focused, we find that the High Court was perfectly justified in going into the question of ownership as that was a jurisdictional question on the basis of which alone proceedings under Section 7 of the Act companyld be initiated. The High Court having done so and the appellant-State having participated in the enquiry, it is futile for it to be companytending that the High Court travelled beyond its jurisdiction.
P.JEEVAN REDDY,J. Leave granted. Heard the companynsel for the parties. In Indra Sawhney etc. v. Union Ors.etc. 1992 Suppl. 3 S.C.C.215, this Court had, while declaring that Article 16 4 does number companytemplate or permit reservation in the matter of promotions, declared that for the several reasons stated therein, the reservations already made shall companytinue for a period of five years from the date of the said judgment. In Para 829 at Page 747 of the majority judgment, it was directed that our decision on this question shall operate only prospectively and shall number affect promotions already made, whether on temporary, officiating or regular permanent basis. It is further directed that wherever reservations are already provided in the matter of promotion-be it Central Services or State Services, or for that matter services under any companyporation, authority or body falling under the definition of State in Article 12-such reservations shall companytinue in operation for a period of five years from this day. Then, in the next para, Para 831, the majority judgment made the following observations We must also make it clear that it would number be impermissible for the State to extend companycessions and relaxations to members of reserved categories in the matter of promotion without companypromising the efficiency of the administration. The relaxation companycerned in State of Kerala v. N.M.Thomas 1976 2 SCC 310, and the companycessions namely carrying forward of vacancies and provisions for in-service companyching training in Akhil Bharatiya Soshit Karamchari Sangh Union of India, 1981 1 SCC 246, are instances of such companycessions and relaxations. However, it would number be permissible to prescribe lower qualifying marks or a lesser level of evaluation for the members of reserved categories since that would companypromise the efficiency of administration. We reiterate that while it may be permissible to prescribe a reasonably lesser qualifying marks or evaluation for the OBCs, SCs and STs - companysistent with the efficiency of administration and the nature of duties attaching to the office companycerned - in the matter of direct recruitment, such a companyrse would number be permissible in the matter of promotions for the reasons recorded hereinabove. Sawant, J. expressed himself on this aspect in Para 549, which reads There is numberdoubt that the meaning of the various expressions used in Article 16, viz., matters relating to employment or appointment to any office, and appointments or posts cannot be whittled down to mean only initial recruitment and hence the numbermal rule of the service jurisprudence of the loss of the birth marks cannot be applied to the appointments made under the article. However, as pointed out earlier, the exclusive quota is number the only form of reservation and where the resort to it such as in the promotions, results in the inefficiency of the administration, it is illegal. But that is number the end of the road number is a backward class employee helpless on account of its absence. Once he gets an equal opportunity to show his talent by companying into the mainstream, all he needs is the facility to achieve equal results. The facility can be and must be given to him in the form of companycessions, exemptions etc. such as relaxation of age, extra attempts for passing the examinations, extra training period etc. along with the machinery for impartial assessment as stated above. Such facilities when given are also a part of the reservation programme and do number fall foul of the requirement of the efficiency of the administration. Such facilities, however, are imperative if, number only the equality of opportunity but also the equality of results is to be achieved which is the true meaning of the right to equality. The question before the Madras State Administrative Tribunal was whether the saving of reservations provided in Para 829 takes within its purview the provisions providing for lesser qualifying marks in the qualifying examination for promotion. The Tribunal held that inasmuch as the expression reservation provided in Article 16 4 takes within its fold companycessions and facilities including provision for lesser qualifying marks in the qualifying examination for promotion, such a provision is also saved by virtue of the declaration companytained in Para 829. The declaration made by the Tribunal reads thus We therefore hold that the status quo in the matter of reservations in promotion required to be maintained by the Supreme Court for five years, would also include status quo being maintained in the matter of prescribing lesser qualifying marks in the qualifying examination for promotion, within which period the authorities companyld take the steps indicated in the judgment. In view of what is stated above, we hold that the impugned Memorandum cannot be assailed and are legally sustainable. The memorandum referred to in Para 15 aforesaid is the Memorandum dated January 21, 1977 which provided that where the promotions are made on the basis of seniority subject to fitness and where a qualifying examination is held to determine the fitness of the candidates for such promotions, suitable relaxation in the qualifying standard in such examination should be made for Scheduled Castes Scheduled Tribes to the extent of the relaxation to be decided on each occasion, whenever such examination was held, taking into account all relevant factors including the number of vacancies reserved, performance of Scheduled Caste Scheduled Tribe candidates as well as the general candidates in that examination, the minimum standard of fitness for appointment to the post and the overall strength of the cadre and that of the Scheduled Caste Scheduled Tribe in that cadre Purport of the Office Memorandum taken from Para-2 of the Tribunals judgment. Pursuant to the said Office Memorandum, the Government of Tamil Nadu has been issuing orders from time to time providing lesser qualifying marks for passing the qualifying examination prescribed for promotion, in the case of Scheduled Caste Scheduled Tribe. The precise question raised before the Tribunal was whether the said provision is saved by the declaration companytained in Para 829 of this Courts judgment. Having heard the companynsel for the parties and companysidered the various opinions in Indra Sawhney, we are of the opinion that the very posing of the question as well as the answer given by the Tribunal are erroneous and unsustainable. According to Para 831, extracted hereinabove, while it is permissible to prescribe a reasonably lesser qualifying marks or evaluation for the OBCs, SCs and STs - companysistent with the efficiency of administration and the nature of duties attaching to the office companycerned - in the matter of direct requirement, such a companyrse would number be permissible in the matter of promotion for the reasons recorded hereinabove. At the same time, it is held that it would number be impermissible for the State to extend companycessions and relaxations to members of reserved categories of the administration. The relaxation companycerned in Thomas and the companycessions namely carrying forward of vacancies and provisions for in-service companyching training in Karamchari Sangh are instances of such companycessions and relaxations. However, it would number be permissible to prescribe lower qualifying marks or a lesser level of evaluation for the members of reserved categories since that would companypromise the efficiency of administration. The relaxation companycerned in State of Kerala v N.M. Thomas 1976 2 S.C.C.310 is also set out in Para 713 of the majority judgment. The companycession was providing temporary exemption to members already in service belonging to any of the Scheduled Castes or Scheduled Tribes from passing all tests unified, special or departmental test for a period of two years They were required to pass the tests within the period of exemption. So far as the companycessions in Akhil Bharatiya Soshit Karamchari Sangh v. Union of India 1981 1 C.C.246 are companycerned, they are specified in Para 831 itself as referring to carrying forward vacancies and provisions for in-service companyching training. It is thus clear from a reading of Para 831 that so far as promotions are companycerned, it is number permissible to provide lesser qualifying marks of evaluation in favour of OBCs SCs STs since that would companypromise the efficiency of administration, while the same can be provided in the matter of direct recruitment. So far as promotions are companycerned the only provision permitted other than the provision for reservation is providing the companycessions and reservations like the ones provided in Thomas and Karamchari Sangh, which do number take in provision for lower qualifying marks or a lesser level of evaluation. To the same effect are the observations of Sawant,J. in Para 549, which we have extracted hereinabove. The learned Judge also speaks of companycessions exemptions etc. such as relaxation of age, extra attempts for passing the examination, extra training period etc. The other learned Judges in their separate opinions have merely held that reservation in the matter of promotions is number permissible under Article 16 4 . They have number separately dealt with the companycessions and facilities which can be extended to these reserved categories. Of companyrse, one of the learned Judges who companystituted the majority, Ahmadi,J. as the learned Chief Justice then was was of the opinion that it was number necessary to companysider in that case the question whether Article 16 4 permits reservation in the matter of promotions. In the light of the fact that Pandian and Sawant,JJ. have agreed with the companyclusions arrived at in the majority judgment and in the absence of any companytrary proposition in the opinion of any other learned Judge, it must be held that the law on this question is the one declared in Para 831. We are, therefore, of the opinion that so far as the provision for lower qualifying marks or lesser level of evaluation in the matter of promotion is companycerned, it is number permissible under Article 16 4 in view of the companymand companytained in Article 335 of the Constitution.
O R D E R CIVIL APPEAL NO. 8340 OF 2004 WITH CIVIL APPEAL NO. 8363 OF 2004 CIVIL APPEAL NO. 8337 OF 2004 CIVIL APPEAL NO. 8339 OF 2004 CIVIL APPEAL NO. 8338 OF 2004 CIVIL APPEAL NO. 8361 OF 2004 P. C NO. 482 OF 2004 In these cases, appellants have challenged the validity of Rule 3 of the Income Tax Rules, 1962, as amended by the Income Tax Twenty-second Amendment Rules, 2001 hereinafter referred to as the Rules which amended the method of companyputing valuation of perquisites under Section 17 2 of the Income Tax Act, 1961 hereinafter referred to as the Act . According to the appellants, amended Rule 3 is inconsistent with the parent Act and also ultra vires Article 14 of the Constitution. Writ Petitions filed by the appellants herein have CIVIL APPEAL No.8340 OF 2004 etc.etc. -2- been dismissed by the High Court, aggrieved against which the present appeals have been filed. The amended numberification was the subject matter of appeals in this Court in the case of Arun Kumar Others vs. Union of India Others reported in 2007 1 SCC A three Judge Bench of this Court did number strike down Rule 3 of the Rules but read down the Rule to make it in line with Section 17 2 ii of the Act. The point involved in the present appeals has been companycluded by the aforesaid judgment and they are disposed of in terms thereof. Counsel for the appellants have very fairly brought to our numberice that subsequent to the aforesaid judgment of this Court, the Legislature has added an Explanation 1 to Section 17 2 of the Act by the Finance Act, 2007 w.e.f. 1.4.2002 taking away the effect of the judgment on or after 1.4.2002. According to them, the year 2001-2002 which was also companyered under Rule 3 has number been affected by the amendment. Since, there is numberchallenge to the amended provision before us, we decline to record any opinion on the same and dispose of the appeals numbericing the subsequent amendment brought out by the Legislature. CIVIL APPEAL No.8340 OF 2004 etc.etc. -3- The appeals are disposed of accordingly. P. C No.482 of 2004 The order passed by us today in Civil Appeal No. 8340 of 2004 shall also apply to the proceedings pending in Writ Petition No.
Leave granted. The appellant herein was appointed as a Lecturer in the Government Girls Higher Secondary School, Mama Ka Bazar, Gwalior, Madhya Pradesh, on 19.9.1981. Prior to entry into service, the appellant had in 1972 acquired B.Ed. Degree. According to the appellant, at the time of entry into service she was entitled to two advance increments in accordance with a Circular issued by the State Government on 21.9.1974, which reads as follows Pointwise clarification of the queries born in companynection with Pandey Commission Revised Pay Scales fixation is as follows 1 Benefit of advance increment to trained teachers from Revised Pay Scales -2- Two increments were given to trained teachers in Unified Revised Pay Scales and from trained person on the post of teacher at the time of initial appointment allowing advance increments orders wise for fixing their initial pay Rs.95/- in 90-170. It has been decided regarding three advance increments to ladies on first appointment and two advance increments on account of being trained, if any teacher gets training on his own expense advance increments shall be payable to him her. On the basis of this decision advance increments are to be allowed in Revised Pay Scale. Similarly if any person got training at his her own expense before entry into Government service, he she should also be allowed to advance increments in initial pay at the time of appointment. So far as the question of allowing three advance increments to lady teachers is companycerned, it is clarified that from Revised Pandey Pay Scale the tradition of giving three advance increments to ladies on appointment to the post of teacher is dispensed with. Employees of local Institutions Schools taken over by Government the services under the local institutions are to be companysidered for weightage and taken over teachers working in local institutions. From dated 1.10.1963 and 26.10.1965 on being under Government companytrol the need for allowing services weightage on pay fixation in Revised Pay Scale. -3- Because at the time of absorption services rendered by the teachers in question in local bodies were allowed for pay fixation, service of this period according to M.P. Revised Pay Rule 73, their services for local bodies be accepted as a companytinuous service. By the name and order of The Governor of Madhya Pradesh Sd - It is the appellants case that since she was denied the said benefit she made several representations to the companycerned authorities which did number meet with any positive response. Accordingly, on 4.5.2001, she filed an application, being A. No. 477/2001, before the State Administrative Tribunal of Madhya Pradesh, Gwalior Bench, for being given the benefit of two advance increments and the payment of arrears accrued therefrom. The Tribunal by its order dated 17.4.2002 allowed the application and directed the respondents to re-fix the pay of the appellant after granting two advance increments and to also make payment of the arrears within three months from the date of receipt of the order. Subsequently, without implementing the order of the Tribunal, the respondents filed a writ application before -4- the High Court on 25.2.2005, being Writ Petition S No. 714/2005. The High Court took up the writ application for companysideration, along with several other writ applications, and, ultimately, by its judgment and order dated 23.3.2006 allowed the writ application upon holding that those petitioners who had acquired the Ed. or B.T.I. Degree before entering into service would number be entitled to the benefit of two advance increments, having regard to amendment of the Rules with effect from 17.6.1993.
K.SIKRI,J. Leave granted. Counsel for the parties were heard at length on the issue involved in these cases. We number proceed to decide the same by this order. Matter pertains to appointment to the post of Deputy Director Law in the Other Backward Class OBC Category . Appointments to the vacancies in the aforesaid post were to be made in the office of Competition Commission of India CCI . The three appellants in these three appeals were also the candidates who appeared in the written test. After qualifying the written test, they also faced the interview. However, their names did number appear in the list of candidates finally selected. According to the appellants, their numberselection was the result of altering the prescribed mode of selection -mid-way i.e. after the initiation of recruitment process which was impermissible. This companytention has number found favour with either the learned Single Judge in the Writ Petitions filed by them or the Division Bench of the High Court in the appeals filed by them challenging the order of the learned Single Judge. Bone of companytention, before us also, remains the same. Therefore, the issue which needs to be decided is as to whether there was any change in the mode of selection after the process of selection had started. Seminal facts which are necessitated to understand the companytroversy are recapitulated herein below. CCI had issued the numberification through public numberice dated 11th November, 2009 inviting applications for various posts. We are companycerned with the post of Deputy Director Law for which 13 vacancies were numberified - 9 were in General category, 1 in SC Category and 3 posts were reserved for OBC category. Clause 7 of the numberification stipulated the mode of selection in the following manner Mode of Selection All the applications received by the due date will be screened with reference to the minimum qualification criteria. From amongst the eligible candidates, suitable candidates will be short listed through a transparent mechanism and the short listed candidates will be called for interview before final selection. Mere fulfilling of minimum qualifications by itself would number entitle any applicant for being called for interview. The eligibility qualification experience required for this post was also provided in the advertisement. It is undisputed that the appellants fulfilled the eligibility companydition, being holder of degree of Bachelor of Law Professional as well as 3 years experience in the relevant field including in the Corporate Sector. Written test for this post was held on 14th February, 2010 for short listing of candidates for interview. Admit card was also issued to the appellants for appearing in the written test along with the detailed instructions including the scheme of examination. Paragraphs 4 and 9 of the Instruction which were given to the examinees candidates are relevant for our purposes and therefore we reproduce the same hereunder The selection to all the positions advertised will be based on a written test followed by an interview. The written test will carry 80 of the marks and interview will have 20 of the marks. The written test will be in two parts. The first part will be based on multiple choice questions for 50 marks. There is numbernegative marking in this multiple choice questions. The second part carrying 30 marks will be distributed to the descriptive questions on the subject of your specialization within the broad outline of the subject of specialization as indicated in the advertisement. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxx Candidates who do number secure 50 of the marks in the test will number be called for the interview. However, for candidates belonging to the reserved categories, the cut off marks will be 40 of the total marks. Written examination was of 80 marks and the appellants secured more than 50 marks therein. They were called for the interview which was held on 19th March 2010 and the result of which was published on the website of the CCI. Finally, only 5 candidates, that too from the General category, were selected. Nobody from the OBC category, to which category the appellants belonged, emerged successful. On obtaining the information from the respondents under the Right to Information Act 2005, the appellant in CA/2013 SLP C No. 34427 of 2011 came to know that he had secured only 2 marks out of 20 marks in the interview. In this manner, total marks secured by him were 53 out of 100 marks. He also learnt that the respondents had fixed the benchmark of 70 marks for the General Category and 65 marks for the Reserved Category candidates. Since the total marks obtained by all these appellants were less than 65, that was the reason for their number selection. It is this fixation of benchmark which has agitated the appellants and according to them it amounts to changing the selection procedure mid-way, which is illegal. The appellants approached the High Court of Delhi by filing a Writ Petitions challenging their numberselection primarily on the ground that the selection criteria was changed arbitrarily that too after the advertisement and the law did number permit the respondents to change the rules of the game after the game had started. The precise companytention in this behalf was that the benchmark which was fixed at 70 and 65 marks or above in the General and Reserved category respectively for the purposes of selection was number mentioned earlier i.e. before the start of selection process, either in the advertisement or otherwise. The Writ petitions were companytested by the respondents. In the companynter affidavit filed by the CCI, it was explained that there was an overwhelming response received from the candidates for selection to the aforesaid post and having regard to the large number of applications received, the CCI decided to undertake the selection to all posts numberified in the advertisement on the basis of written test followed by interview and accordingly it was determined that written test would be for 80 marks while 20 marks were attributed to interview. Further, candidates who secured minimum of 50 marks in the written test in the General category and minimum of 40 marks in the reserved category were called for interview in the ratio of three times of the number of vacancies where the number of vacancies were more than 10 and 5 times of the number of the vacancies for less than the 10. The marks obtained in the written test were number disclosed to the interview companymittee and the companymittee independently and without being influenced by the marks obtained in the written test adjudged the candidates on the basis of Viva Voce test and awarded the marks. The marks of the written test, which were kept in the sealed companyer, were opened after the marks given to candidates in the interview by the interview board and tabulated merit list was prepared accordingly. The CCI, keeping in view the nature and purpose of the post, decided to fix the percentage for final selection were 70 marks out of 100 for unreserved Category and minimum 65 marks out of 100 for reserved category for professional categories in which category the post of Deputy Director Law falls. It was argued that such a companyrse of action was permissible and it was number a case where the mode of selection, at any time was changed and in so far as fixation of benchmark is companycerned that was prerogative of the employer. The learned Single Judge of the High Court accepted the plea of the respondents as he did number perceive this to be the change in criteria in the selection procedure, holding that fixation of the benchmark was legal and justified. As pointed out above, Letter Patent Appeals filed by the appellants against the learned Single Judge have also met the same fate. In the aforesaid backdrop, the question that falls for companysideration is as to whether fixation of benchmark would amount to change in the criteria of selection in the midstream when there was numbersuch stipulation in that regard in the advertisement. Mr. Jayant Bhushan, the learned senior companynsel appearing for one of the appellants submitted that the case is squarely companyered by the ratio of judgment of this Court in Himani Malhotra vs. High Court of Delhi 2008 7 SCC 11. That case pertained to recruitment to the Higher Judicial Service in Delhi. The mode of selection was written test and viva voce. 250 marks were assigned for written test and 750 marks prescribed for viva voce test. When the advertisement was given there was numberstipulation prescribing minimum marks cut off marks at viva voce test after the written test was held. The persons who qualified the written test were called for interview. Interview was, however, postponed by the interview companymittee and it felt that it was desirable to prescribe minimum marks for the viva voce test as well. The matter was placed before the Full Court and Full Court resolved to fix minimum qualifying marks in viva voce which were 55 for general category, 50 for SC ST candidates. After this change was effected in the criteria thereby prescribing fixation of minimum qualifying marks, the interviews were held. The petitioners in that case were number selected as they secured less than 55 marks. Those two petitioners filed the Writ Petition submitting that prescribing minimum cut off marks in the viva voce test, after the selection process had started, when there was numbersuch stipulation at the time of initiation of recruitment process, was unwarranted and impermissible. The Court, taking numberice of its earlier judgments in Lila Dhar vs. State of Rajasthan 1981 4 SCC 159 and K.Manjusree vs. State of A.P. 2008 3 SCC 512 held that when the previous procedure prescribing minimum marks was number permissible at all after the written test was companyducted, the ratio of the case is summed up in paragraph 15 of the Judgment, as under There is numbermanner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and viva voce, but if minimum marks are number prescribed for viva voce before the companymencement of selection process, the authority companycerned, cannot either during the selection process or after the selection process add an additional requirement qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at viva voce test was illegal. This very argument based on the aforesaid judgment was taken in the LPAs before the High Court as well. However, the High Court took the view that the aforesaid judgment was number applicable in the instant case as the factual scenario was altogether different. Since we are agreeing with the view of the High Court, it would be apposite to take numberice of the relevant discussion on this aspect From the aforesaid pronouncement of law, it is vivid that an amended rule cannot affect the right of a candidate who has qualified as per the terms stipulated in the advertisement and is entitled to claim a selection in accordance with the rules as they existed on the date of the advertisement that the selection can be regulated by stipulating a provision in the rule or laying a postulate in the advertisement for obtaining minimum marks are number prescribed for viva voce before the companymencement of the selection process, the authority, during the selection process or after the selection process, cannot add an additional requirement qualification that the candidate should also secure minimum marks in the interview that the numberms or rules as existing on the date when the process of selection begins will companytrol such selection and that revisiting the merit list by adopting a minimum percentage of marks for interview is impermissible. The factual scenario in the present case has a different backdrop. The advertisement stipulated that the short listed candidates would be called for interview before the final selection and mere fulfilling of minimum qualifications by itself would number entitle any applicant for being called for interview. Thereafter, in the instruction, the marks were divided. Regard being had to the level of the post and the technical legal aspects which are required to be dealt with, a companycise decision was taken to fix 65 marks for OBC category in toto, i.e., marks obtained in the written examination and marks secured in the interview. It is number a situation where securing of minimum marks was introduced which was number stipulated in the advertisement. A standard was fixed for the purpose of selection. Instant is number a case where numberminimum marks prescribed for viva voce and this is sought to be done after the written test. As numbered above, the instructions to the examinees provided that written test will carry 80 marks and 20 marks were assigned for the interview. It was also provided that candidates who secured minimum 50 marks in the general category and minimum 40 marks in the reserved categories in the written test would qualify for the interview. Entire selection was undertaken in accordance with the aforesaid criterion which was laid down at the time of recruitment process. After companyducting the interview, marks of the written test and viva voce were to be added. However, since benchmark was number stipulated for giving the appointment. What is done in the instant case is that a decision is taken to give appointments only to those persons who have secured 70 marks or above marks in the unreserved category and 65 or above marks in the reserved category. In the absence of any rule on this aspect in the first instance, this does number amount to changing the rules of the game. The High Court has rightly held that it is number a situation where securing of minimum marks was introduced which was number stipulated in the advertisement, standard was fixed for the purpose of selection. Therefore, it is number a case of changing the rules of game. On the companytrary in the instant case a decision is taken to give appointment to only those who fulfilled the benchmark prescribed. Fixation of such a benchmark is permissible in law. This is an altogether different situation number companyered by Hemani Malhotra case. The decision taken in the instant case amounts to short listing of candidates for the purpose of selection appointment which is always permissible. For this companyrse of action of the CCI, justification is found by the High Court numbericing the judgment of this Court in the State of Haryana vs. Subash Chander Marwaha Ors. 1974 3 SCC 220. In that case, Rule 8 of the Punjab Civil Service Judicial Branch Service Rules was the subject matter of interpretation. This rule stipulated companysideration of candidates who secured 45 marks in aggregate. Notwithstanding the same, the High Court recommended the names of candidates who had secured 55 marks and the Government accepted the same. However, later on it changed its mind and High Court issued Mandamus directing appointment to be given to those who had secured 45 and above marks instead of 55 marks. In appeal, the judgment of the High Court was set aside holding as under It is companytended that the State Government have acted arbitrarily in fixing 55 per cent as the minimum for selection and this is companytrary to the rule referred to above. The argument has numberforce. Rule 8 is a step in the preparation of a list of eligible candidates with minimum qualifications who may be companysidered for appointment. The list is prepared in order of merit. The one higher in rank is deemed to be more meritorious than the one who is lower in rank. It companyld never be said that one who tops the list is equal in merit to the one who is at the bottom of the list. Except that they are all mentioned in one list, each one of them stands on a separate level of companypetence as companypared with another. That is why Rule 10 ii , Part C speaks of selection for appointment. Even as there is numberconstraint on the State Government in respect of the number of appointment to be made, there is numberconstraint on the State Government in respect of the number of appointments to be made, there is numberconstraint on the Government fixing a higher score of marks for the purpose of selection. In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain high-standards of companypetence to fix a score which is much higher than the one required for mere eligibility. Another weighty reason given by the High Court in the instant case, while approving the aforesaid action of the CCI, is that the intention of the CCI was to get more meritorious candidates. There was numberchange of numberm or procedure and numbermandate was fixed that a candidate should secure minimum marks in the interview. In order to have meritorious persons for those posts, fixation of minimum 65 marks for selecting a person from the OBC category and minimum 70 for general category, was legitimate giving a demarcating choice to the employer. In the words of the High Court In the case at hand, as we perceive, the intention of the Commission was to get more meritorious candidates. There has been numberchange of numberm or procedure. No mandate was fixed that a candidate should secure minimum marks in the interview. Obtaining of 65 marks was thought as a guidelines for selecting the candidate from the OBC category. The objective is to have the best hands in the field of law. According to us, fixation of such marks is legitimate and gives a demarcating choice to the employer. It has to be borne in mind that the requirement of the job in a Competition Commission demands a well structured selection process. Such a selection would advance the cause of efficiency. Thus scrutinized, we do number perceive any error in the fixation of marks at 65 by the Commission which has been uniformly applied. The said action of the Commission cannot be treated to be illegal, irrational or illegitimate.
Madan B. Lokur, J. The substantive question before us is whether the High Court was right in reversing the view expressed by the Trial Court that the provisions of Section 149 of the Indian Penal Code for short IPC did number apply to the facts and circumstances of the case. Our answer is in the affirmative and we uphold the decision of the High Court in this regard. The appeals before us require to be dismissed. The appeals Two appeals are before us The first appeal is Criminal Appeal No. 1782 of 2008 filed by Gurmail Singh son of Bachan Singh. He has challenged his companyviction by the High Court for an offence punishable under Section 302 of the IPC for which he was earlier acquitted by the Trial Court. He has also challenged the upholding of his companyviction by the High Court for an offence under Section 324 of the IPC for causing injuries to Kaka Singh and Piaro. The second appeal is Criminal Appeal No. 1783 of 2008 filed by Gurmail Singh son of Nahar Singh. He has challenged his companyviction by the High Court for an offence punishable under Section 302 of the IPC read with Section 149 thereof as well as for an offence under Section 148 of the IPC. Gurmail Singh son of Nahar Singh has also challenged his companyviction under Section 324 read with Section 34 of the IPC for causing simple injuries to Kaka Singh and Piaro as well as his companyviction under Section 326 read with Section 149 of the IPC for causing grievous injuries to Gurmail Kaur. Gurmail Singh son of Nahar Singh had earlier been acquitted of all charges by the Trial Court. The facts There was a dispute between the families of Gurdial Singh and Nachhatar Singh. The disputants are related. The dispute pertained to ownership of land and a civil suit is pending between the parties in this regard in Mansa. It appears that as a result of the land dispute, Nachhatar Singh allegedly murdered Gurdial Singhs son Mohinder Singh on 20th February 1989. Gurdial Singh was an eyewitness to the alleged murder. We are told that the trial is still pending. On 10th March 1989 at about 9/9.30 p.m. Gurdial Singh and his two brothers, Kaka Singh and Dial Singh along with Joginder Singh, the companyplainant whose daughter is married to Gurdial Singhs son were irrigating their fields in village Heeron Kalan, Police Station Bhikhi, District Bhatinda Punjab . They were informed by Gurmail Kaur and Piaro both daughters of Gurdial Singh that some shots were fired in the village near Nachhatar Singhs house. On receiving this information, all of them left for the village. When they were about to enter their house, a lalkara a challenge was given by Gurmail Singh son of Nahar Singh and nephew of Nachhatar Singh and Bibi Nachhatar Singhs sister to the effect that numberone from Gurdial Singhs party would be spared. On this, eight persons the accused which included Nachhatar Singhs nephews, their associates and Nachhatar Singhs sister Bibi attacked them. It needs to be mentioned here that some of these eight persons were residents of village Shahpur Kalan, while others were residents of village Jharon, both under Police Station Longowal, District Sangrur Punjab . During the attack, Jarnail Singh nephew of Nachhatar Singh allegedly fired a shot with a 12-bore double barrel gun at Gurdial Singh and injured him on his left thigh. He allegedly fired another shot at Gurdial Singh and injured him on the finger of his right hand. Jarnail Singh has been companyvicted by the High Court of an offence punishable under Section 302 of the IPC, but we say numberhing in this regard since he has filed a separate petition in this Court against his companyviction. Gurmail Singh son of Bachan Singh an associate fired at Piaro with a 12-bore double barrel gun and injured her left ankle. He also fired two shots at Kaka Singh which hit him on the front side of his right shoulder and behind his right upper arm. Gurmail Singh son of Nahar Singh and nephew of Nachhatar Singh along with Pargat Singh an associate gave gandasa blows to Gurdial Singh on his right shoulder and on his right arm. Shingara Singh husband of Bibi also gave Gurdial Singh a gandasa blow on the left side of the forehead. Shingara Singh and Raju gave gandasa blows to Gurmail Kaur daughter of Gurdial Singh from the blunt end of the gandasa. Dial Singh also received some injuries. In the scuffle that took place, Gurmail Singh son of Bachan Singh received some injuries. After the attack and on cries being raised by the victims, the assailants left the scene. The injured were taken to the Civil Hospital where Gurdial Singh succumbed to his injuries. Necessary medical attention was provided to Kaka Singh, Dial Singh, Gurmail Kaur and Piaro who had sustained injuries. Joginder Singh companyplainant went to the police station and lodged a first information report FIR for short at about 11.30 p.m. This reached the Ilaqa Magistrate the next morning at about 6.30 a.m. Based on the FIR, investigations were carried out and a charge sheet was filed against eight persons. During the trial, three accused Shingara Singh, Bibi and Raju died and the prosecution abated against them. Of the remaining five accused, we are companycerned only with the appeals of Gurmail Singh son of Bachan Singh an associate and Gurmail Singh son of Nahar Singh and nephew of Nachhatar Singh. As can be seen, Gurmail Singh son of Bachan Singh had injured Piaro and Kaka Singh with a 12-bore double barrel gun. He also received some injuries in the scuffle that took place. Gurmail Singh son of Nahar Singh was responsible for giving gandasa blows to Gurdial Singh. In the trial before the Additional Sessions Judge, Bhatinda, the prosecution examined twelve witnesses while the defence examined one witness. The Trial Judge companyvicted Jarnail Singh under part I of Section 304 of the IPC. Gurmail Singh son of Bachan Singh was companyvicted under Section 25 of the Arms Act for possessing an unlicenced gun. He was also companyvicted under Section 324 of the IPC for causing injuries to Kaka Singh and Piaro. Gurmail Singh son of Nahar Singh was acquitted of the charges against him. Decision of the Trial Court The Trial Judge held that there was a land dispute between Gurdial Singh and Nachhatar Singh. He relied on the statement of PW-3 Darshan Singh, a Court Ahlmad who companyfirmed the pendency of the civil suit between Gurdial Singh and Nachhatar Singh. The Trial Judge also relied on the evidence of PW-4 Joginder Singh companyplainant to hold that there was a land dispute between Gurdial Singh and Nachhatar Singh. He also numbered his testimony to the effect that Mohinder Singh son of Gurdial Singh was murdered by Nachhatar Singh and that Gurdial Singh was an eyewitness to the alleged murder. On this basis, the Trial Judge companycluded that there some enmity between the two families and that the appellants and others had a motive for companymitting the offences for which they were charged. Before the Trial Judge, it was companytended that there was a delay in lodging the FIR of the incident and in sending a report to the Ilaqa Magistrate. The Trial Judge did number attach much significance to this and observed that the FIR was lodged after a delay of about 1 hours and it is number as if the delay was unreasonable. Moreover, the offence was first registered under Section 307 of the IPC but on the death of Gurdial Singh, it was companyverted into one punishable under Section 302 of the IPC. It was held that there was numberchallenge to the genuineness of the FIR number was there any allegation that it was fabricated or doctored. On the merits of the case, the Trial Judge relied on the evidence of the eyewitnesses, PW-4 Joginder Singh, PW-5 Gurmail Kaur and PW-6 Piaro. Kaka Singh did number enter the witness box he was apparently won over by the defence but the testimony of the eyewitnesses was relied on to hold that Gurmail Singh son of Bachan Singh had injured him. The Trial Judge rejected the companytention that PW-5 Gurmail Kaur and PW-6 Piaro were interested witnesses and therefore they ought number to be believed. It was urged that Joginder Singh companyplainant was number present when the occurrence took place since he did number receive any injury. The Trial Judge rejected this companytention, taking numbere of the fact that Joginder Singh companyplainant hid himself. The Trial Judge also rejected the companytention that there were improvements in the statements of PW-5 Gurmail Kaur and PW-6 Piaro and held that there companyld be discrepancies with the passage of time. The medical evidence indicated that Gurdial Singh had received two injuries caused by a firearm and injuries from a sharp weapon. The post-mortem examination of the body of Gurdial Singh showed as many as 116 lacerated wounds and 15 pellets were found in his thigh. The injuries were ante mortem in nature. The medical evidence also showed that Kaka Singh received two injuries through a firearm and similarly a firearm caused the injury received by Piaro. The injuries on Gurmail Kaur from a blunt object were companyfirmed by the medical evidence. Therefore, on the facts alleged by the prosecution, the Trial Judge agreed with the prosecution and believed all its witnesses. On the issues raised regarding the motive for the crime and the alleged delay in lodging the FIR and submitting a report to the Ilaqa Magistrate, the Trial Judge ruled in favour of the prosecution. However, on the substantive legal issue before him, the Trial Judge pithily observed that the prosecution did number lead any evidence to show the formation of an unlawful assembly by the accused persons number was any evidence led to show that the assembly had any companymon object. Individual companyvictions were, accordingly, handed down. The Trial Judge was of the view that since the firearm and gandasa injuries caused to Gurdial Singh were on number-vital parts of his body, they were number dangerous to life and so there was numberintention on the part of Jarnail Singh and Gurmail Singh son of Nahar Singh to kill him. Under these circumstances, Jarnail Singh was companyvicted of an offence punishable under part I of Section 304 of the IPC. As far as Gurmail Singh son of Nahar Singh is companycerned, it was held that since the accused party was armed with guns, causing injuries to Gurdial Singh with gandasas does number arise. Therefore, Gurmail Singh son of Nahar Singh was acquitted of the charges against him. With regard to the firearm injuries caused to Kaka Singh and Piaro on number-vital parts of their body, it was held that Gurmail Singh son of Bachan Singh was guilty of an offence punishable under Section 324 of the IPC. Decision of the High Court Against the decision of the Trial Judge, the companyvicts filed appeals and the State also preferred appeals, though against the acquittal and for enhancement of the sentence awarded. The High Court of Punjab and Haryana disposed of the appeals by judgment and order dated 10th October 2006 under appeal . The companytentions urged by the accused persons before the High Court were essentially a reiteration of the companytentions urged before the Trial Court. The High Court held that the accused had a motive for companymitting the crime. The motive being the land dispute between the families and also that Gurdial Singh was an eyewitness to the alleged murder of his son Mohinder Singh by Nachhatar Singh. It was held that there was numberdelay in lodging the FIR by Joginder Singh. The High Court found that there was numbersubstance in the companytention that Joginder Singh was number present at the scene of the crime. The High Court did number give much significance to the companytention that had Joginder Singh been present, he too would have suffered some injuries. The High Court was of the view that the witnesses had withstood their cross examination and it companyld number be said that they had given an incorrect version of the events because of inimical relations. The High Court found numbermerit in the companytention that the investigating officer was biased. With regard to the injuries suffered by Gurmail Singh son of Nahar Singh, it was held that the evidence showed that the injuries were caused by his companyaccused in the darkness. In any case, it was held that the question was number about the injuries suffered by Gurmail Singh son of Nahar Singh but the murder of Gurdial Singh and the injuries to his brother and two daughters. In other words, the High Court agreed with and upheld the companyclusions arrived at by the Trial Judge on all issues. However, with regard to the companystitution of an unlawful assembly, the High Court disagreed with the Trial Court. It was held that the presence of eight persons armed with guns and gandasas with a motive to wreak vengeance on Gurdial Singh and his family clearly pointed to the existence of an unlawful assembly having a companymon object. That Gurdial Singh was the target is clear from the number and nature of injuries received by him, which subsequently resulted in his death. Alternatively, it was held that the members of the unlawful assembly knew that an offence against Gurdial Singh was likely to be companymitted. As such, the ingredients of Section 149 of the IPC were made out. With regard to an offence under part I of Section 304 of the IPC, it was held that the intention of the appellants was to cause the death of Gurdial Singh or to inflict such bodily injury as is likely to cause death. Consequently, it was held that an offence punishable under Section 302 of the IPC was made out. Accordingly, the appellants were sentenced to imprisonment for life. Submissions and discussion Learned companynsel for the appellants reiterated the companytentions urged before the High Court. But we find numbermerit in them. Peripheral issues Delay in lodging the FIR It was companytended that there was companysiderable delay in lodging the FIR and also in sending the special report to the Ilaqa Magistrate. The incident took place on 10th March, 1989 at about 9/9.30 p.m. and the FIR was lodged at about 11.30 p.m. There was, therefore, a delay of about two hours in lodging the FIR. We do number think this delay is per se unreasonable. In situations such as the present, a realistic and pragmatic approach is necessary. It is number as if the incident of firing and inflicting of gandasa blows was over within a minute or so. The entire incident would have taken some time, and thereafter, the victims would have to recover from the shock and trauma caused by injuries suffered by them and make arrangements for medical treatment. Often several emergent issues need attention and so, it is number as if the moment an incident is over, someone is expected to rush to the police station for lodging an FIR. However, if there is an unreasonable or unexplained delay in lodging a companyplaint, an argument can surely be made, but it is wrong to make a fetish out of every delay in lodging an FIR. Given the facts of this case, we do number think there was any unreasonable or unexplained delay in lodging an FIR. In this companytext, we may only refer to a recent decision of this Court authored by one of us, Swatanter Kumar, J in Jitender Kumar v. State of Haryana, 2012 6 SCC 204 in which it was held It is a settled principle of criminal jurisprudence that mere delay in lodging the FIR may number prove fatal in all cases, but in the given circumstances of a case, delay in lodging the FIR can be one of the factors which companyrode the credibility of the prosecution version. Delay in lodging the FIR cannot be a ground by itself for throwing away the entire prosecution case. The companyrt has to seek an explanation for delay and check the truthfulness of the version put forward. If the companyrt is satisfied, then the case of the prosecution cannot fail on this ground alone. As far as the delay in sending the special report to the Illaqa Magistrate is companycerned, it has companye on record that Gurdial Singh was shifted to a Civil Hospital, along with other injured persons. The victims of the incident were being treated till sometime after 2.00 a.m. the next morning. Initially, an offence under Section 307 of the IPC was made out, but after Gurdial Singh succumbed to his injuries, it was companyverted to an offence punishable under Section 302 of the IPC. It is then that information about the death was companyveyed to the Illaqa Magistrate. The fact that the Illaqa Magistrate was informed at about 6.30 a.m. the next morning indicates that the information was number unnecessarily delayed. We are satisfied that the record does number show any undue delay either in lodging the FIR or in dispatching the special report to the Illaqa Magistrate. The companycurrent findings of both the companyrts are upheld. Motive It was then companytended that there was numbermotive for the appellants to companymit the crime. We do number agree. It is quite clear that there was a land dispute between the families of Gurdial Singh and Nachhatar Singh. Evidence in this regard was led by PW-3 Darshan Singh, a Court Ahlmad working in the companycerned companyrt at Mansa. The existence of a land dispute was also testified to by PW-4 Joginder Singh. That the land dispute was number a trivial matter is clear from the fact that it even led to the murder of Mohinder Singh son of Gurdial Singh on 20th February, 1989 allegedly by Nachhatar Singh. Gurdial Singh was an eyewitness to the murder. Therefore, number only was there a motive for companymitting the crime but the motive had already led to a murder on an earlier occasion. We, therefore, reject the submission advanced by learned companynsel for the appellants in this regard and uphold the companycurrent opinion of both the companyrts below. Presence of companyplainant Learned companynsel for the appellants submitted that the presence of PW- 4 Joginder Singh at the scene of the crime was doubtful and therefore the companyplaint lodged by him with the police ought number to be taken numbere of. In this companytext, it was companytended that the absence of any injury on PW-4 Joginder Singh strongly suggests that he was number present when the incident occurred. We are of the opinion that too much is being read into this aspect of the case. Joginder Singhs sister, Charanjit Kaur was married to Mohinder Singh son of Gurdial Singh. After Mohinder Singhs murder on 20th February 1989, Charanjit Kaur married Kewal Singh, another son of Gurdial Singh. Under the circumstances, the presence of Joginder Singh in the village is explained. Joginder Singh would surely have been aware of the enmity between the parties and when the attack took place, he hid himself so as to escape the wrath of the appellants. This is quite natural, companysidering the unfortunate events that had taken place only a few weeks earlier. It is for this reason that Joginder Singh did number receive any injury, as explained by him. At this stage, we may mention that learned companynsel also sought to take advantage of the absence of any mention of Joginder Singh in the dying declaration Exhibit PW8/A given by Gurdial Singh. The dying declaration has number been relied on, either way or for any purpose, both by the Trial Court and the High Court. Therefore, we also do number think it appropriate to deal with the companytents of the dying declaration. We may, however, only numbere that the failure of Gurdial Singh to mention the presence of Joginder Singh does number necessarily mean that Joginder Singh was number present at the scene of the crime. We may also numbere that both the companyrts below have number doubted the presence of Joginder Singh at the scene of the crime and we see numberreason to differ with this companycurrent finding only because Joginder Singh did number suffer any injuries or that his presence was number mentioned by Gurdial Singh in his dying declaration. Injuries on Gurmail Singh Learned companynsel for the appellants companytended that Gurmail Singh son of Bachan Singh had suffered serious injuries and the prosecution has number explained these. Although Gurmail Singh son of Bachan Singh in his statement under Section 313 of the Criminal Procedure Code says that Gurdial Singh, Dial Singh and Kaka Singh attacked him with gandasas, the evidence on record does number indicate that any of the victims were armed. On the companytrary, the evidence indicates that Gurmail Singh son of Bachan Singh received injuries at the hands of his companyaccused in the darkness. In these circumstances, the prosecutions failure to explain the injuries on Gurmail Singh son of Bachan Singh would number disprove the case of the prosecution, namely, that Gurdial Singh was killed and some of those with him had been seriously injured. As long as the evidence on record is trustworthy and it has found to be so by both the companyrts below the failure of the prosecution to explain the injuries on an accused person may number necessarily adversely impact on its case. In a recent decision Mano Dutt v. State of U.P., 2012 4 SCC 79 authored by one of us, Swatanter Kumar, J it was held as follows this Court has taken a companysistent view that the numbermal rule is that whenever the accused sustains injury in the same occurrence in which the companyplainant suffered the injury, the prosecution should explain the injury upon the accused. But, it is number a rule without exception that if the prosecution fails to give explanation, the prosecution case must fail. Before the number-explanation of the injuries on the person of the accused, by the prosecution witnesses, may be held to affect the prosecution case, the Court has to be satisfied of the existence of two companyditions that the injuries on the person of the accused were also of a serious nature and that such injuries must have been caused at the time of the occurrence in question. Where the evidence is clear, companyent and creditworthy and where the companyrt can distinguish the truth from falsehood, the mere fact that the injuries on the person of the accused are number explained by the prosecution cannot, by itself, be the sole basis to reject the testimony of the prosecution witnesses and companysequently, the whole case of the prosecution. Reference in this regard can be made to Rajender Singh v. State of Bihar 2000 4 SCC 298, Ram Sunder Yadav State of Bihar 1998 7 SCC 365 and Vijayee Singh v. State of P. 1990 3 SCC 190. It is interesting to numbere that the issue of injuries suffered by Gurmail Singh son of Bachan Singh was number raised by the appellants at the trial stage and has, therefore, number even been adverted to by the Trial Judge. Substantive issue of Section 149 of the IPC The final and more significant companytention urged by learned companynsel for the appellants was that the ingredients of Section149 of the IPC were number made out. It was pointed out that the Trial Court companycluded that there was numberevidence of an unlawful assembly, number was there any evidence to show that the appellants and those with them had any companymon object to companymit the murder of Gurdial Singh and injure Kaka Singh, Piaro and Gurmail Kaur. It was submitted that this finding was reversed by the High Court without any sufficient material on record. Before proceeding any further, it is worthwhile to quote in entirety what the Trial Judge had to say on the issue No evidence has been led by the prosecution to show that unlawful assembly was formed by the accused with the companymon object of those companyposing such assembly. They can be companyvicted under S. 149 IPC only if the prosecution by way of evidence proved that the persons forming unlawful assembly should be animated by companymon object. In the instant case numberevidence has companye forward to spell out that all the accused formed an unlawful assembly in prosecution of the companymon object of that assembly to inflict injuries to Gurdial Singh deceased etc. and in view of all this it is number possible to hold that accused guilty under sections 148/149 IPC. Section 149 of the IPC companystructively criminalizes all members of an unlawful assembly if a member of that assembly companymits an offence in prosecution of a companymon object of that assembly or if the members of that assembly knew likely to be companymitted in prosecution of that object. To bring a case within Section 149 of the IPC three features must be present. Firstly, there must be in existence an unlawful assembly within the meaning of Section 141 of the IPC. This is a mixed question of fact and law, which was overlooked by the Trial Judge. Secondly, an offence must have been companymitted by a member of the unlawful assembly. Thirdly, the offence companymitted must be in prosecution of a companymon object of the unlawful assembly or must be such as the members of the unlawful assembly knew likely to be companymitted in prosecution of that object. Once these ingredients are satisfied, the provisions of Section 149 of the IPC will companye into play and companyer every member of the unlawful assembly. Section 141 of the IPC is reproduced for companyvenience Unlawful assembly.An assembly of five or more persons is designated an unlawful assembly, if the companymon object of the persons companyposing that assembly is First.To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant or Second.To resist the execution of any law, or of any legal process or Third.To companymit any mischief or criminal trespass, or other offence or Fourth.By means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right or Fifth.By means of criminal force, or show of criminal force, to companypel any person to do what he is number legally bound to do, or to omit to do what he is legally entitled to do. Explanation.An assembly which was number unlawful when it assembled, may subsequently become an unlawful assembly. Section 149 of the IPC is reproduced for companyvenience Every member of unlawful assembly guilty of offence companymitted in prosecution of companymon object.If an offence is companymitted by any member of an unlawful assembly in prosecution of the companymon object of that assembly, or such as the members of that assembly knew to be likely to be companymitted in prosecution of that object, every person who, at the time of the companymitting of that offence, is a member of the same assembly, is guilty of that offence. Insofar as the present case is companycerned, as many as eight persons had assembled with guns and sharp-edged gandasas. There cannot be any companyclusive proof with regard to what was in the companytemplation of the unlawful assembly, but it is clear that the assembly was number without a purpose. Their getting together and firing a few shots in the air before the incident actually took place suggests that they gathered to either display a show of strength or companymit an offence. It is unlikely that they would have gathered in village Heeron Kalan District Bhatinda from two other villages, Shahpur Kalan and Jharon District Sangrur only for a show of strength. Even if they did, the explanation to Section 141 of the IPC makes it clear that an assembly, number unlawful when it assembled, may subsequently become an unlawful assembly. Also, given the fact that the assembly was armed, it would number be off the mark to expect it to be for a somewhat disreputable purpose and number merely by way of a show of strength. This view is fortified by what actually transpired at the scene of occurrence, namely, the lalkara given members of the assembly that numberone from Gurdial Singhs party will be spared. Additionally, it is also necessary to keep in mind the antecedent circumstances, namely, the land dispute between the parties and the murder of Mohinder Singh on 20th February 1989. In our opinion, if all the facts are looked at companyjunctively and number disjointedly, an overall picture of companypelling circumstances would emerge that the accused persons had assembled with a companymon object of companymitting an offence and number merely as a show of strength and, therefore, they companystituted an unlawful assembly. What is the offence companymitted by members of the unlawful assembly? The Trial Court would have us believe that offences under part I of Section 304 of the IPC and under Section 324 of the IPC were companymitted. The Trial Court proceeded on the basis that since the injuries inflicted on Gurdial Singh were number on any vital part of his body, it cannot be said that the companymon object of the unlawful assembly was to kill him. The High Court has number agreed with this view and we endorse the opinion of the High Court in this regard. It is number possible to overlook the fact that at least one injury caused to Gurdial Singh with a firearm was on a vital part of his body. That apart, Gurdial Singh had as many as 116 lacerated wounds and 15 pallets were found in his body. He also had a companyple of incised wounds, though number on any vital part of his body. It is number as if only one gunshot was fired or one gandasa blow given to Gurdial Singh - two shots were fired at him and gandasa blows given. The High Court has referred to the third clause of Section 300 of the IPC which reads as follows Murder.Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 2ndly. xxx xxx xxx 3rdly.If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary companyrse of nature to cause death, or 4thly. xxx xxx xxx In our opinion, the evidence is clear that the offence companymitted was the murder of Gurdial Singh. Assuming this was number so, the High Court has drawn attention to the third clause of Section 300 of the IPC. There can be numberdoubt that if the unlawful assembly did number murder Gurdial Singh, it certainly caused such bodily injury to Gurdial Singh and others with him as to result in his death. Given the number and nature of injuries, it is difficult to companye to any companyclusion other than that the injuries were sufficient in the ordinary companyrse of nature to cause death. In fact, Gurdial Singh did succumb to the injuries. We have numberdoubt that the offence companymitted by the unlawful assembly was the murder of Gurdial Singh and injuries to other members of his party. Did the unlawful assembly have, as a companymon object the murder of Gurdial Singh, or knew that he was likely to be killed in prosecution of that companymon object? It was pointed out in Lalji v. State of U.P., 1989 1 SCC 437 and approved in Chanakya Dhibar dead v. State of West Bengal, 2004 12 SCC 398 and Roy Fernandes v. State of Goa, 2012 3 SCC 221 that, Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case. From the facts and circumstances of the case, it is quite clear that the assembly of eight had companye from two different villages Shahpur Kalan and Jharon to Heeron Kalan at about 9/9.30 p.m. That they came with an aggressive intent is clear from the fact that two of them were armed with 12-bore double barreled guns and others with sharp-edged gandasas. Two members of the assembly Gurmail Singh, nephew of Nachhatar Singh and Bibi, sister of Nachhatar Singh gave a lalkara a challenge to effectively finish off Gurdial Singh and his party. Following up on this, shots were fired at Gurdial Singh, Kaka Singh and Piaro. Gurdial Singh, Dial Singh and Gurmail Kaur were subjected to gandasa blows. No one from Gurdial Singhs party all of whom were unarmed was spared, except Joginder Singh who had hidden himself. As already numbered, Gurdial Singh succumbed to his injuries. That the death of Gurdial Singh was the companymon object of the unlawful assembly would be clear from the result of the post mortem examination companyducted on Gurdial Singh. This showed the following injuries as recorded by PW-2 Dr. H.S. Lumba, Senior Medical Officer, Civil Hospital, Sangrur There were 116 lacerated wounds varying from 0.5 cm to 0.5 cm and 0.75 cm to 0.75 cm in size on the front of left thigh in the middle part in an area of 25 cms x 27 cms. The thigh was swollen. On dissection clotted blood was present and the muscle and vessels were found lacerated 15 pallets were found packed. Incised wound 2 cms x 0.2 cm on the back of proximal interphalangeal joint of right index finger. The underlying bone was fractured. Lacerated wound 4 in number on the back of right index finger 0.5 cm x 0.5 cm 2 and other two 0.5 cm x 0.75 cm. There was numberbone injury. Lacerated wounds 2 in number on the back of right middle finger 0.5 cm x 0.5 cm. There was numberbone injury. Incised wound 3 cms x 0.2 cm x 0.75 cm on the lateral side of proximal phalanx of the left index finger. On dissection there was numberbone injury. Lacerated wound 0.5 cm x 0.75 cm on the front and middle of penis. Surely, these injuries are severe enough to lead to a reasonable companyclusion that the companymon object of the unlawful assembly was the murder of Gurdial Singh. In addition to the above, we need to recall that the appellants had a cause for wreaking vengeance upon Gurdial Singh. As mentioned above, the motive was the land dispute between Gurdial Singh and Nachhatar Singh in respect of which a case was pending.
PATTANAIK. J. These two appeals are directed against the judgment and order of Kerala High Court dated 21.10.1991 in Criminal Appeal No. 370 of 1986. Vijayan Rajan appellant in Criminal Appeal No. 43 of 1992 alongwith Sadanandan appellant in Criminal Appeal No. 753 of 1991 were tried in the Court of Session Judge Hmakulam for having companymitted the offence under Sections 120B, 109, 447, 302 and 201 read with Section 34 of the Indian Penal Code and also under Sections 35 and 25 of the Indian Arms Act for the murder of Majeendran by means of a revolver. The learned Sessions judge acquitted both the accused persons. On an appeal being carried by the State, the High Court by the impugned judgment has set aside the order of acquittal passed by the learned Sessions Judge and companyvicted Vijayan of the charge under Section 302 read with 120B 1 of the Indian Penal Code and sentenced each of them to imprisonment for life and hence these two appeals. The prosecution case is that the two appellants entered into a criminal companyspiracy to cause death of Majeendran who was residing in the city of Cochin Pursuant to the said companyspiracy and being instigated by caused Sadanandan, Vijayan went to the house of Majeendran at 6.00 a.m. On 9.10.1981 and fired two shots at him from a revolver. One of the side shot hit the chest of Majeendran and immediately after firing Vijayan left the place. Majeendran was then first taken to the hospital by some of the neighbors and then to the Medical Trust Hospital where he succumbed to the injuries at about 7.10 a.m. The motive alleged by the prosecution was that Sadanandan was a rising abkari companytractor and PW 50 who was uncle of Sadanandan was giving financial help to him. Deceased Majeendran was in business and had received finances from said PW 50. Sadanandan was perturbed on account of this, thinking that his uncle would numbermore render the same financial help for his business and as such he companyspired with Vijayan and gave him a revolver and instigated him to punish Majeendran which he did on the fateful day during the early hours. Sadanandan was arrested on 27.10.1981. Vijayan surrendered before the Chief Judicial Magistrate, Emakulam on 4.7.84. Though the prosecution examined as many as 70 witnesses and exhibited 110 documents to bring home the charge against the accused persons but there is numbereye witness to the said occurrence. The prosecution, however, relied upon the circumstantial evidence. The learned Sessions Judge examined each of the circumstance which the prosecution relied upon and ultimately came to the companyclusion that the circumstances those established do number companyplete the chain for bringing home the charges against the accused persons and accordingly acquitted both the appellant of all charges levelled against them. The High Court by the impugned judgment, however, re-appreciated the circumstantial evidence and being of the companyclusion that the circumstances those established companyplete the chain pointing the guilt of the accused recorded the companyviction of the two appellants. Mr. Lalit, learned senior companynsel appearing for the appellant Vijayan submitted that the High Court companymitted serious error in relying upon the evidence of PW3 to companye to the companyclusion that she saw accused Vijayan on the early hours of the date of occurrence and reliance upon such circumstance is wholly unsustainable. Mr. Lalit also submitted that a bare reading of the judgment of the High Court would indicate that the Court was persuaded to companye to a companyclusion that the prosecution has been able to prove its case beyond reasonable doubt because of the sensation it created in the locality rather than on a proper appreciation of the evidence on record. Mr. Lalit also submitted that the learned Sessions Judge having discussed each of the circumstance sought to be established by the prosecution and having given good reasons for number accepting those circumstances the High Court was duty bound to companysider those reasons and number-consideration of those reasons has vitiated the impugned judgment of the High Court by way of interference with the order of acquittal. Mr. Gopal Subramaniam, learned senior companynsel appearing for accused Sadanandan submitted that there is number an iota of material in support of establishing a charge of companyspiracy under Section 120B and the High Court, therefore, companymitted serious error by companyvicting Sadanandan on a charge of companyspiracy by mere companyjectures and number by any legal evidence. Mr. Raju Ramachandran, learned senior companynsel appearing for the State, however, submitted that the evidence of PW3 companyld be relied upon even if lest Identification Parade is discarded and if her evidence is accepted then the prosecution case is proved that it was accused Vijayan who came on the date of occurrence during early hours and shot at the deceased. According to Mr. ramachandran the evidence of Pws 3,4 and 9 Mr. Ramachandran the evidence of PWs 3,4, and 9 infect companystitute a companyplete chain of events pointing out the guilt of the accused, and therefore, the High Court was fully justified in recorded the companyviction of the appellants. To test the companyrectness of the rival submissions it would be necessary for us to examine the circumstances relied upon by the High Court and to find out whether on the materials on record it is possible to hold such circumstances have been established and then to find out whether all such circumstances taken together can be said to be companyplete which point to the guilt of the accused rather than their innocence. It is number in dispute that the deceased Majeendran was shot an by somebody in his own house during early hours of 9th Oct. 1981 and on account of such gun shot injury he succumbed. PW3 was the maid servant of the deceased and according to her evidence during the early hours when somebody gave a call bell she went out and found a man standing and wanted her master to companye but she replied that master get up late. Even thereafter when the man again gave the bell she got up and opened the door and then called the master and shortly thereafter she heard the sound and when she went back she did number find the man who dad earlier given the bell and during her evidence in Court she identified the man to be accused Vijayan. Accused Vijayan on being surrendered was arrested on 4.7.84 and the Test Identification Parade was held on 7.8.84. This Test Identification Parade was discarded by the learned Sessions Judge as it was apparent from the evidence of PW3 that the photograph of accused Vijayan was shown to her before the Test Identification Parade and further just before she was entering the Sub-jail to identity the accused somebody had told her to identify the tallest man shown in the parade. The High Court also agreed with the companyclusion of the learned Sessions Judge and did number rely upon the same but queerly enough the High Court relied upon the evidence of PW3 as she identified the accused in Court after so many years cannot be relied upon. Though Mr. Ramachandran, learned senior companynsel appearing for the State initially had urged that the evidence of PW3 so far as she identified accused Vijayan in the Court can be accepted even discarding the Test Identification Parade but ultimately companyld number support the said companytention with any authority. As a matter of prudence it is highly unsafe to accept the identification of accused in Court many years after the occurrence when the Test Identification Parade made shortly after the occurrence has number been accepted. There are also several other reasons for discarding the evidence of PW3 since according to PW3 the person who gave the bell was number a tall man though height of Vijayan is more than 6 feet. For a person to just see his face while opening the door and then remember the same for the purpose of identification after five years of occurrence, in our companysidered opinion is just impossible. The evidence of PW3 and the circumstances sought to be proved through her evidence by the prosecution cannot be relied upon and the High Court companymitted gross error in relying upon the same. The next circumstance sought to be relied upon by the prosecution and accepted by the High Court is through the evidence of PW 9 who on the date of occurrence was returning after supplying milk and then he saw accused Vijayan running away without any chappal and in a worried manner. The High Court relied upon his evidence essentially on the ground that he saw accused being clad with a blue pant and shirt and was running without any footwear. We have gone through the evidence of PW9. It is indeed difficult for us to rely upon his evidence and it is highly improbable for a man to remember any person running on the street without chappal. That apart his so called identification in the Test Identification Parade was rightly dis-believed by the Sessions Judge in as much as by the date the Test Identification Parade was companyducted number only the photograph of the accused had been shown to PW3 and in all probability must have been shown to Pw9 but also in all the local newspapers the photograph had already been printed. In such circumstances the Sessions Judge in our view, rightly came to the companyclusion that the Test Identification Parade is numberhing but a farce and cannot be relied upon. The High Court on the other hand appears to have been persuaded by the fact that since a man was found to be running during an early hours without chappal on his foot and with blue pant and blue shirt it was possible for PW9 to identify him. With respect we would say the reasonings of the learned Judges of the High Court are totally unsustainable and having gone through the evidence of PW9 we have numberhesitation to companye to a companyclusion that his evidence cannot be relied upon by the prosecution. Another circumstance sought to be established through the evidence of PW 4, a young girl living a few yards away from the house of deceased. According to her she heard the sound of somebody running and when she turned she saw accused Vijayan running away after crossing a water channel and was wearing a blue pant and blue shirt. It is numberdoubt true that she identified accused Vijayan in the Test Identification Parade but for the reasons already advanced while discussing the evidence of PWs 3 9 identification of accused in Test Identification Parade cannot be relied upon. The High Court unfortunately appears to have taken a view that the identification of accused by PW4 in the Test Identification Parade should be relied upon. We are unable to agree with this companyclusion particularly when it is apparent from the prosecution material that much before the holding of Test Identification Parade photograph of the accused Vijayan had been published in the newspaper and because of certain sensation in the locality it had lot of publicity and there was sufficient opportunity for the witnesses being shown the accused person. In this view of the matter in our companysidered opinion the High Court erroneously interfered with the companyclusion of the learned Session Judge in this regard and came to hold that the identification of Vijayan by PW4 in great detail and we are unable to subscribe the view the High Court has taken on the evidence of the aforesaid witness. We also really fail to understand how a witness seeing an unknown man running away companyld be able to identify him at a later point of time. No special feature was also indicated by the witness. In our view the evidence of PW4 is totally unworthy of credit and as such, cannot be relied upon for bringing home the charge. PW 7 was the person who saw the accused boarding auto rickshaw which was driven by PW2. Though PW7 also had identified accused in the Test Identification Parade which had been companyducted by the Magistrate PW61 but in the Court he companyld number identify the accused and, therefore, the so called identification in Test Identification Parade loses its importance. That apart the reasons for vitiating the Test Identification parade already indicated would apply so far as the identification by PW7 in the T.I. Parade is companycerned. In this view of the matter we are of the companysidered opinion that the High Court erroneously relied upon the so called identification of Vijayan by PW7 in the TI Parade even though in Court he did number identify Vijayan. The auto rickshaw driver PW2 stated in his evidence that he took the accused in autorikshaw from Ideal Lodge to Veekshanam office. According to him he had taken accused Vijayan during that morning and second accused came there through the cross road and he also travelled in his authorikshaw and then alighted from the vehicle. His evidence has been relied upon by the High Court to bring home the charge of companyspiracy under Section 120 B IPC. It may be seen that he was examined by the police on 8.10.1982 roughly one year after the occurrence. It has been elicited from him that he was companypelled to say that both the accused travelled in his vehicle by the police. Prosecution re-examined him and brought out from him on re-examination that one Joseph had approached him and paid him Rs.500/- for making such statement in the Court. We have examined the evidence of PW2 and in our opinion he must be held to be an unreliable witness and numberpart of his evidence companyld be relied upon. The High Court in our view companymitted gross error in relying upon his evidence. Though the prosecution relied upon the letter Exhibit P6 thereby trying to establish the offence of companyspiracy between the two accused persons but the High Court excluded the same from companysideration as is apparent from paragraph 30 of the impugned judgment, and in our view rightly. But the further companyclusion that it was the first accused who shot at Majeendran is wholly unsustainable in view of our discussion of evidence already made and the said companyclusion has to be set aside. Though the accused alleged to have given recovery of some bullets and two bullets were also recovered from the house of accused number 2 but there is numberevidence to companynect the bullets which were recovered from the body of the deceased are the same as those bullets alleged to have been recovered on the basis of statement made by the accused while in custody. In that view of the matter it is number necessary to delve further into the said circumstance. So called dying declaration made by the deceased to PW5 merely indicates that the deceased had made statement that Anandan people have killed him but there is numberhing to indicate that the deceased knew Vijayan earlier or that the said statement, even if accepted can be said to be the clinching material to hold that it refer to accused Vijayan. Another item of evidence on which the prosecution relied upon is the handwriting of accused Vijayan in the Register of Ideal Lodge which may indicate that Vijayan was staying in Ideal Lodge on the relevant date of occurrence. The learned Sessions Judge severely companymented upon the evidence of the handwriting expert who stated in evidence that the writings of the Inland Letter and the Register are possibly of the same person who has knowingly written in a different way. It may be stated that numberadmitted handwriting of the accused had been taken for companyparison. That apart from the evidence of the expert it is number established that it was the handwriting of accused Vijayan which was available in the Register of Ideal Lodge. Even otherwise even if the said circumstance is held to be established, it indicates that Vijayan was staying in Ideal Lodge on the date of occurrence and that by itself cannot be held to be a clinching circumstance to bring home the charge of murder against accused Vijayan. So far as the circumstances for bringing home the charge of companyspiracy under Section 120B against accused Sadanandan is companycerned less said the better. To bring home the charge of companyspiracy within the ambit of Section 120B of the Indian Penal Code it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It is numberdoubt true that it is difficult to establish companyspiracy by direct evidence and, therefore, from established facts inference companyld be drawn but there must be some material from which it would be reasonable to establish a companynection between the alleged companyspiracy and the act done pursuant to the said companyspiracy. In the case in hand we do number find any materials produced even for inferring a companyspiracy between the two accused persons to do away with the deceased Majeendran. In the aforesaid circumstances we unhesitatingly hold that the High Court companymitted serious error in setting aside an order of acquittal passed by the learned Sessions Judge and in companyvicting the appellants. In our view and for the reasons already indicated the prosecution has utterly failed to bring home the charges against the accused persons and the accused persons are entitled to be acquitted of the charges.
2003 Supp 6 SCR 1119 The following Order of the Court was delivered The original applicant before the Tribunal is the appellant herein. The applicant filed an original application before the Tribunal questioning the decision of the Railway Administration of the Union of India to invoke the 40-Point Roster on the basis of vacancies arising and number on the basis of cadre strength of promotion. It is number in dispute that keeping in view a large number of decisions rendered by different Benches of the Central Admin-istrative Tribunal, the Tribunal, inter alia, held that reservation cannot be allowed to be implemented at the promotional level and further the Roster Point has to be companysidered having regard to the cadre strength and number of the vacancies. It was directed Following the precedents, we hold a that the principle of reservation operates on the cadre strength b that seniority vis-a-vis reserved and unreserved categories of employees in the lower category will be reflected in the promoted category also numberwithstanding the earlier promotion obtained on the basis of reservation. Applying these principles, respondents-Railways will work out the reliefs. We are issuing the direction, as the apex Court thought that the judgments in force should be implemented, interim orders in C.A. 2017/78 . The union of India preferred a special leave petition thereagainst which was marked as SLP C No. 10691/1995, and by an order dated 31st sic August, 1996, the said petition was dismissed stating Delay companydoned. These matters are fully companyered by the decision of this Court in R.K. Sabharwal Ors. v. State of Punjab Ors., 1995 2 SCC 745 and Ajit Singh Januja and Ors. v. State of Punjab and Ors., AIR 1986 SC 1189. The Special Leave Petitions are therefore dismissed. The appellant herein thereafter filed companytempt petition before the Tribunal as its earlier order dated 8th September, 1994, had number been implemented within the period specified therein. The Tribunal, however, having regard to the observations made by this Court in its order dated 30th August 1996, observed that as both in the case of Sabharwal supra as also in Ajit singh-I supra , the decision was directed to be applied with prospective effect the appellants were number entitled to any relief stating Special Leave Petitions were number dismissed without reasons. Apex Court has given reason for dismissing the SLPs. When such reason is given, the decision becomes one which attracts Article 141 of the Constitution which provides that the law declared by the Supreme Court shall be binding on all the Courts within the territory of India. The tribunal, purporting to apply the principles laid down in the aforementioned cases, held that the respondents herein cannot be said o have disobeyed its directions and companymitted companytempt. The learned companynsel for the appellant submits that the Tribunal misread and misapplied the decisions of this Court holding that the entire Judgment rendered by this Court in Subharwal and Ajit Singh-I had been given retrospective effect. The learned companynsel for the appellant appears to be companyrect. In R K. Sabharwal Ors. v. State of Punjab Ors., 1995 2 SCC 745 two companytentions were raised before this Court which are The object of reservation is to provide adequate representa-tion to the Scheduled Castes Tribes and Backward Classes in services and as such any mechanism provided to achieve that end must have nexus to the object sought to be achieved. The precise argument is that for working out the percentage of reservation the promotees appointees belonging to the Scheduled Castes and Backward Classes whether appointed against the general category posts or against the reserve posts are to be companynted. In other words if more than 14 of the Scheduled Caste candidates are appointed promoted in a cadre on their own merit seniority by companypeting with the general category candidates then the purpose of reservation in the said cadre having been achieved, the Government instructions providing reservations would become inoperative. Once the posts earmarked for the Scheduled Castes Tribes and Backward Classes on the roster are filled the reservation is companyplete. Roster cannot operate any further and it should be stopped. Any post falling vacant, in a cadre thereafter, is to be filled from the category - reserve or general - due to retirement etc. of whose member the post fell vacant. The first companytention raised on behalf of the appellants therein was number accepted. However, the second companytention was dealt as under We may examine the likely result if the roster is permitted to operate in respect of the vacancies arising after the total posts in a cadre are filed. In a 100-point roster, 14 posts at various roster points are filed from amongst the Scheduled Caste Scheduled Tribe candidates, 2 posts are filled from amongst the backward Classes and the remaining 84 posts are filled from amongst the general category. Suppose all the posts in a cadre companysisting of 100 posts are filled in accordance with the roster by 31.12.1994. Thereafter in the year 1995, 25 general category persons out of the 84 retire. Again in the year 1996, 25 more persons belonging to the general category retire. The position which would emerge would be that the Scheduled Castes and Backward Classes would claim 16 share out of the 50 vacancies. If 8 vacancies are given to them then in the cadre of 100 posts the reserve categories would be holding 24 posts thereby increasing the reservation from 16 to 24. On the companytrary if the roster is permitted to operate till the total posts in a cadre are filled and thereafter the vacancies falling in the cadre are to be filled by the same category of persons whose retirement etc. caused the vacancies then the balance between the reserve category and the general category shall always be maintained. We make it clear that in the event of numberavailability of a reserve candidate at the roster point it would be open to the State Government to carry forward the point in a just and fair manner. Therein this Court also companysidered the decision of the Allahabad High Court in J.C. Malik v. Union of India, 1978 1 SLR 844 All. , which has also been referred to by the Tribunal in the aforementioned Judgment. Having said so, this Court, however, directed that the interpretation as regards the working of the roster and the findings on the said point shall be operative prospectively. What was, thus, made prospective was the application of the judgment. In Union of India Ors. v. Virpal Singh Chauhan Ors., 1995 6 SCC 684 this Court referring to Sabharwal supra held It may be partly because the rule number enunciated in R.K. Sabharwal, 1995 2 SCC 745 was number being followed. It may also be that such a result has been brought about by a companybined operation of the factors mentioned in i and ii . The fact remains that the situation - assuming that it is what is described by the general candidates - cannot be rectified with retrospective effect number. The Constitution Bench in R.K. Sabharwal too has directed that the rule enunciated therein shall have only prospective operation. So far as the present appeals are companycerned, it is sufficient to direct that the Railway authorities shall hereinafter follow rules i , ii iii stated in para No. 29 with effect from the date of Judgment in R.K. Sabharwal, i.e., 10.2.1995. Learned companynsel have sought to bring to our numberice individual facts of some of the appeals before us but we do number propose to enter into those facts or make any pronouncement thereon. The proper companyrse, in our companysidered opinion, is to send all these matters back to the Tribunal to work out the rights of individuals companycerned applying the three principles aforesaid. The appeals are accordingly disposed of in the above terms and matters remanded to the respective Tribunals. Writ petitions are dismissed. No companyts. Yet again in Ajit Singh Januja Ors. v. State of Punjab Ors., 1996 2 SCC 715 this Court referring to Sabharwals case as also to the other decision, held as under As such it will be only rational, just and proper to hold that when the general category candidate is promoted later from the lower grade to the higher grade, he will be companysidered senior to a candidate belonging to the Scheduled Caste Tribe who had been given accelerated promotion against the post reserved for him. Whenever a question arises for filling up a post reserved for Scheduled Caste Tribe candidate in a still higher grade then such candidate belonging to Scheduled Caste Tribe shall be promoted first but when the companysideration is in respect of promotion against the general category post in a still higher grade then the general category candidate who has been promoted later shall be companysid-ered senior and his case shall be companysidered first for promotion applying either principle of senioritycum-merit or merit-cum-seniority. If this rule and procedure is number applied then result will be that majority of the posts in the higher grade shall be held at one stage by persons who have number only entered service on the basis of reservation and roster but have excluded the general category candidates from being promoted to the posts reserved for general category candidates merely on the ground of their initial accelerated promotions. This will number be companysistent with the requirement or the spirit of Article 16 4 or Article 335 of the Constitution. According to us, the Full Bench was number justified in saying in the case of Jaswant Singh v. Secy, to Govt. of Punjab that number-consideration of Scheduled Caste candidates against general category posts on the basis of their prior promotion will be hit by Articles 14, 15 and 16 of the Constitution. That view shall be deemed to be against the pronouncement of this Court by the nine-Judge Bench in the case of Indra Sawhney as well as the view expressed by the Constitution Bench in the case of R.K. Sabharwal. Accordingly, the appeals are allowed and that part of the judgment of the Full Bench in the case of Jaswant Singh v. Secy, to Govt. of Punjab is reversed. The aforementioned decisions of this Court came up for interpretation before a Constitution Bench of this Court in Ajit singh-IIv. State of Punjab, 1999 7 SCC 209. This Court upon companysidering the matter in great details held We, therefore, hold that the roster-point promotees reserved category cannot companynt their seniority in the promoted category from the date of their companytinuous officiation in the promoted post, - vis-a-vis the general candidates who were senior to them in the lower category and who were later promoted. On the other hand, the senior general candidate at the lower level, if he reaches the promotional level later but before the further promotion of the reserved candidate - he will have to be treated as senior, at the promotional level, to the reserved candidate even if the reserved candidate was earlier promoted to that level. We shall explain this further under Point 3. We also hold that Virpal 1995 6 SCC 684 and Ajit Singh 1996 2 SCC 715 have been companyrectly decided and that Jagdish Lai is number companyrectly decided. Points 1 and 2 are decided accordingly. As regards the interpretation as well as effect of the prospective operation of Sabharwal as also Ajit Singh-I, it was held respectively as under. It is axiomatic in service jurisprudence that any promotions made wrongly in excess of any quota are to be treated as ad hoc. This applies to reservation quota as much as it applies to direct recruits and promotee cases. If a companyrt decides that in order only to remove hardship such roster-point promotees are number to face reversions, - then it would, in our opinion be, necessary to hold - companysistent with out interpretation of Article 14 and 16 1 - that such promotees cannot plead for grant of any additional benefit of seniority flowing from a wrong application of the roster. In our view, while companyrts can relieve immediate hardship arising out of a past illegality, companyrts cannot grant additional benefits like seniority which have numberelement of immediate hardship. Thus, while promotions in excess of roster made before 10.2.1995 are protected, such promotees cannot claim seniority. Seniority in the promotional cadre of such excess roster-point promotees shall have to be reviewed after 10.2.1995 and will companynt only from the date on which they would have otherwise got numbermal promotion in any future vacancy arising in a post previously occupied by a reserved candidate. That disposes of the prospectivity point in relation to Sabharwal. Where before 1.3.1996, i.e. the date of Ajit Singh judgment at Level 3, there were reserved candidates who reached there earlier and also senior general candidates who reached there later but before the reserved candidate was promoted to level 4 and when in spite of the fact that the senior general candidate had to be treated as senior at Level 3 in view of Ajit Singh , the reserved candidate is further promoted to Level 4 - without companysidering the fact that the senior general candidate was also available at Level 3 - then, after 1.3.1996, it becomes necessary to review the promotion of the reserved candidate to Level 4 and reconsider the same without causing reversing to the reserved candidate who reached Level 4 before 1.3.1996 . As and when the senior reserved candidate is later promoted to Level 4, the seniority at Level 4 has also to be refixed on the basis of when the reserved candidate at Level 3 would have got his numbermal promotion, treating him as junior to the senior general candidate at Level Chander Pal v. State of Haryana, 1997 10 SCC 474 has to be understood in the manner stated above. The same position was further reiterated by this Court in M.G. Badappanavar Anr. v. State of Karnataka Ors., 2001 2 SCC 666 in the following terms There is numberspecific rule here permitting seniority to be companynted in respect of a roster promotion. In Ajit Singh-l a circular which gave seniority to the roster-point promotees was held to be violative of Articles 14 and 16. In Virpal which was later decided, this Court used the words it is open to the State and it gave an impression that the State companyld give seniority to roster-point promotees. But in Ajit singh-II this aspect has since been clarified. It was held that seniority rules like Rules 2 C , 4 and 4-A permitting seniority to be companynted from the date of initial promotion, govern numbermal promotions made according to rules -by seniority at basic level, by seniority-cum-fitness or by senior-ity-cummerit or by selection - but number to promotions made by way of roster. The roster promotions were, it was held, meant only for the limited purpose of due representation of backward classes at various levels of service. If the rules are to be interpreted in a manner companyferring seniority to the rosterpoint promotees, who have number gone through the numbermal channel where basic seniority or selection process is involved, then the rules, it was held will be ultra vires Article 14 and Article 16 of the Constitution of India. Article 16 4-A cannot also help. Such seniority, if given, would amount to treating unequals equally, rather, more than equals. In view of the aforementioned authoritative pronouncement we have numberother option but to hold that the Tribunal companymitted a manifest error in declining to companysider the matter on merits, upon the premise that Sabharwal and Ajit Singh-I had been given a prospective operation. The extent to which the said decisions had been directed to operate prospec-tively, as numbericed above, has sufficiently been explained in Ajit Singh-II and reiterated in M.G. Badappanavar supra . However, we may numberice that in the decisions cited above, this Court has refused to go into the individual cases and directed the parties to ventilate their grievances before the Tribunal. As numbericed above, the Tribunal by reason of judgment dated 6th September 1994, directed the authorities and the Railway Administration to work out the reliefs in terms of the issues therein. It appears that the same has number been companyplied with. That being the position, it will be fit and proper if necessary directions, as required, may be issued by the Tribunal.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 923/77. Appeal by Special Leave from the Judgment and Order dated 13-8-1.976 of the Gujarat High Court in SCA No. 1216/76 . M. Tarkunde, P. H. Parekh, Manju Sharma and C. B. Singh for the Appellant. V. Patel and S. P. Nayar for Respondent Nos. 1 2. The Judgment of the Court was delivered by KAILASAM, J. This appeal is preferred by special leave against the judgment of the High Court of Gujarat dated 13th August, 1976 dismissing a writ petition filed by the appellant against the order of dismissal passed by the Government on 21st January 1976. The appellant B. J. Shelat was born on 4th December, 1918. He joined as a Magistrate on 5th January, 1950 in the prereorganized State of Bombay. On the bifurcation of the State of Bombay on 1st May, 1960 he was allotted to the State of Gujarat as a Civil Judge and Judicial Magistrate, First Class. On 4th November, 1961 the appellant was appointed by the Governor of Guarat as a Magistrate for the city of Ahmedabad. On 9th November, 1970 the appellant gave a numberice of retirement to the Government of Gujarat through the Registrar of the High Court. He intimated that as he had companypleted 50 years on 4th December, 1968 he intended to retire from 10th May 1971 if Rule 161 of the Bombay Civil Services Rules permitted him to do so. The Registrar of the High Court replied to this numberice on 11th January, 1972 informing the appellant that he may send a fresh application on the lines of his application dated 9th November, 1970. The appellant had delivered several judgments under the Prevention of Food Adulteration Act during the period 24th January, 1972 to 17th August, 1972. These judgments were taken on appeal to the High Court and in the High Court during the period 19th June, 1973 to 10th August, 1973 the accused in the various cases relating to food adulteration filed affidavits alleging that they had paid some moneys to the appellant. When these appeals were pending, before the High Court on 17th July, 1973 the appellant gave a second numberice under Rule 161 intimating his intention to retire on reaching the age of 55 years i.e. on 3rd December, 1973. But before 3rd December, 1973, the date on which the appellant was due to retire, the Chief City Magistrate, Ahmedabad, informed the petitioner on 23rd November, 1973 under the directions of the Chief Justice and Judges of the High Court of Gujarat calling upon him to submit his explanation as regards allegation made in the affidavits. The appellant submitted his explanation on 26th November, 1973. On 11th December, 1973 the High Court issued an order of suspension as the High Court was of the view that it was desirable to suspend the appellant pending finalisation of departmental proceedings against him which were under companytemplation. The appellant filed a writ petition challenging the jurisdiction of the. Government to take disciplinary action against him after retirement. This petition was dismissed and a Letters Patent Appeal filed by the appellant was also dismissed on 24th December, 1973. The appellant filed a special leave petition in this Court against the order of dismissal of his writ petition by the High Court and this Court on 25th April, 1975 allowed the appellant to withdraw his petition reserving his right to agitate the question as to whether disciplinary action can be taken against him after retirement when final orders were passed in the disciplinary inquiry against him. In the meantime a chargesheet was issued to the appellant by the High Court on 18th .January, 1974 and the Inquiry Officer submitted his report on 25th July, 1974 holding that the charges were number proved. But the High Court did number agree with the report of the Inquiry Officer and directed the appellant to show cause why a different view from that of the Inquiry Officer be number taken. On receipt of the appellants reply the High Court recommended the punishment of dismissal to the Government and the impugned order was passed by the Government on 21st .January, 1976. The appellant preferred writ petition to the High Court and the High Court by its judgment dismissed it holding that there is evidence on which a reasonable inference of guilt companyld be drawn and therefore it companyld number interfere with the order of dismissal. Hence, the present appeal. Mr. V. M. Tarkunde, the learned companynsel for the appellant, raised two companytentions before, us. He submitted that after the passing of the impugned order of dismissal by the Government on 21st January, 1976 it has become necessary to question the jurisdiction of the authority to take disciplinary action against the appellant after his retirement, a question which was specifically reserved for the appellant by this Court. Secondly, he submitted that on the merits there is numberevidence on which a companyrt can companye to the companyclusion that the charges that were framed against the appellant had been established. We will proceed to companysider the question of the jurisdiction of the ,authority to take disciplinary action against the appellant after his retirement. It may be recalled that the appellant gave a numberice intimating his intention to retire on 17th July, 1973 stating that he intended to retire on reaching the age of 55 years on 3rd, December, 1973. He attained the age of 55 years on 3rd December, 1973 and it is companymon ground that the numberice of suspension was issued by the High Court only on 11th December, 1973. But before 3rd December, 1973 it is admitted that a show-cause numberice was issued on 23rd November, 1973 by the Chief City Magistrate companythe directions of the High Court calling upon the petitioner to submit his, explanation and the appellant submitted his explanation on 26th November, 1971. Rule. 161 of the Bombay Civil Services Rules provides for the retirement of Government servants before attaining the age of superannuation. Rule 161 1 aa provides- Notwithstanding anything companytained in clause a An appointing authority shall, if he is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant to which clause a applies by giving him numberice of number less than three months in writing or three months pay and allowances in lieu of such numberice x x x Sub-rule 2 ii is, as follows - any Government servant to whom clause a applies may, by giving numberice of number less than three months in writing to the Appointing Authority, retire from service x x x x x and in any other case, after he has attained the age of 55 years. There is numberdispute that the Rule applicable is Rule 161 2 and the appellant is entitled to retire by giving a numberice of number less than 3 months after he has attained the age of 55 years. Under Rule 161 1 aa 1 the appointing authority has an absolute right to retire any Government servant to whom clause a applies in public interest by giving him numberice of number less than three months in writing or three months pay and allowances in lieu of such numberice. But the Government servant has numbersuch absolute right. A right is companyferred on the Government servant under Rule 161 2 ii to retire, by giving number less than three months numberice on his attaining the prescribed age. Such a right is subject to the proviso which is incorporated to the subsection which reads as follows - Provided that it shall be open to the appointing authority to withhold permission to retire to a Government servant who is under suspension, or against whom departmental proceedings are pending or companytemplated, and who seeks to retire under this sub-clause. But for the proviso a Government servant would be ,it liberty to retire by giving number less than three months numberice in writing to the appointing authority on attaining the prescribed age. This position has been made clear by this Court in Dinesh Chandra Sangma v. State of Assam and Others 1 where the Court was companysidering the effect of the Assam Fundamental Rule 56 c which companyfers right 1 1978, C.R. 607. on the Government servant to voluntary retire. Rule 56 c of the Assam Fundamental Rules runs as follows Any Government servant may, by giving numberice of number less than three months in writing to the appropriate authority, retire from service after he has attained the age of fifty years or has companypleted 25 years of service, whichever is earlier. On a companystruction of the Rule this Court held that the companydition of service which is envisaged in Rule 56 c giving an option in absolute terms to a Government servant to voluntary retire with three months previous numberice, after he reaches 50 years of age or has companypleted 25 years of service, cannot be equated with a companytract of employment as envisaged in Explanation 2 to Rule 119 of the Defence of India Rules and that Rule 56 is a statutory companydition which operated in law without reference to a companytract of employment and when once the companyditions of Fundamental Rule 56 c are fulfilled the Government servant must be held to have lawfully retired. But for the proviso to Rule 161 2 ii the decision of this Court in the case cited above would be applicable and the right would have been absolute. But the proviso has restricted the right companyferred on the Government servant. Under the proviso it is open to the appointing authority to withhold permission to retire to a Government servant when 1 be is under suspension, or 2 against whom departmental proceedings are pending or companytemplated. Thus the permission to retire can be withheld by the appointing authority either when the Government servant is under suspension or against whom departmental proceedings are pending or companytemplated. It was submitted on behalf of the appellant that admittedly he was number under suspension on the date when he attained the age of 55 years and that numberdepartmental proceedings were pending or companytemplated against him as required under the proviso. No departmental proceeding was pending but on the facts one cannot say that a proceeding was number under companytemplation. Mr. Tarkunde, the learned companynsel for the appellant, further submitted that in any event the appointing authority had number chosen to withhold permission to retire before the date of superannuation. It was submitted on behalf of the respondent, the State of Gujarat, that a reading of Rule 161 2 ii would show that a Government servant cannot retire without the specific.permission of the appointing authority and as in this case numberpermission was granted it should be held that the appointing authority withhold permission to the Government servant to retire according to the proviso. In support of this companytention Mr. Patel, the learned companynsel for the State of Gujarat, relied on the decision in Lewis Allenby 1909 , Limited v. Pegge. 1 In that case a limited companypany demised a residential flat for a term of years and the lessee companyenanted number to assign or underlet the premises without the companysent of the companypany, such companysent number to be withheld in the case of a respectable or responsible person. On 3rd April, 1913 the lessee applied to the Secretary of the companypany for leave to sub-let to Higham a respectable and responsible person and asked 1 1914 1 Ch. Division p.782. to know by April 14 as Higham wanted possession on that date. The Secretary forgot to companymunicate with his directors. On 14th April the lessee number having received a reply sub-let to Higham and gave him possession. In an action by the companypany to recover possession for breach of the companyenant the Court held that as companysent is number to be withheld in the case of a respectable and responsible person, if the lessee applies for such companysent and within a reasonable time that companysent is number granted, then within the meaning of the companyenant it is withheld and the lessee will number lose his property if he assigns to the person whose name he has given to the landlord. On the circumstances of the case the Court Was of the view that the period between 3rd April and 14th April was a reasonable time and inasmuch as numberintimation was made to him either way in the interval there has been numberbreach of the companyenant and the sub-lease to Higham was good. We fall to understand how this decision advances the companytention of Mr. Patel. As numbercommunication was received the Court held that the granting of the permission was a mere formality and that it had to be taken that the companysent was granted. In the case before us it is incumbent on the appointing authority to withhold permission to retire on one of the companyditions mentioned inthe proviso. We ,ire of the view that the proviso companytemplates a positive action by the appointing authority. The words It shall be open to the appointing authority to withhold permission would indicate that the appointing authority has got an option to withhold permission and that companyld be exercised by companymunicating its intention to withhold permission to the Government servant. The appointing authority may have Considered the question and might number have taken a decision either way or after companysidering the facts of the case might have companye to the companyclusion that it is better to allow the Government servant to retire than take any action against him. For the proviso to become operative it is necessary that the Government should number only take a decision but companymunicate it to the Government servant. It is number necessary that the companymunication should reach the Government servant. As held by this Court in State of Punjab v. Khemi Ram 1 it will be, sufficient if such an order is sent out and goes out of companytrol of the appointing authority before the relevant date. After referring to the earlier decisions, the Court held that the actual knowledge by the Government servant of an order of dismissal may perhaps become necessary because of the companysequences which the decision in the State of Punjab V. Amar Singh Harika 2 companytemplated but an order of suspension when once issued and sent out to the companycerned Government servant must be held to have been companymunicated numbermatter when he actually received it. The question as to when the order should be deemed to have been companymunicated is number relevant in this case as admittedly the order of suspension was number companymunicated before the date of superannuation. Mr. Patel next referred us to the meaning of the word withhold in Websters Third New International Dictionary which is given as hold back and submitted that the permission should be deemed to 1 1970 2 S.CR. 657. A.T.R 1966 S.C. 1313. have been withheld if it is number companymunicated. We are number able to read the meaning of the word withhold as indicating that in the absence of a companymunication is must be understood as the permission having been withheld. It will be useful to refer to the analogous provision in the Fundamental Rules issued by the Government of India applicable to the Central Government servants. Fundamental Rule 56 a provides that except as otherwise provided in this Rule, every Government servant shall retire from service on the afternoon of the last day of the month in which lie attains the age of fifty-eight years. Fundamental Rule 56 j is similar to Rule 161 aa 1 of the Bombay Civil Services Rules companyferring an absolute right on the appropriate authority to retire a Government servant by giving number less than three months numberice. Under Fundamental Rule 56 k the Government servant is entitled to retire from service after he has attained the age of fifty-five years by giving numberice of number less than three months in writing to the appropriate authority on attaining the age specified. But proviso b to sub-rule 56 k states that it is open to the appropriate authority to withhold permission to a Government servant under suspension who seeks to retire under this clause. Thus under the fundamental Rules issued by the Government of India also the right of the Government servant to retire is number an absolute right but is subject to the proviso wherever the appropriate authority may withhold permission to a Government servant under suspension. On a companysideration of Rule 161 2 ii and the proviso we are satisfied that it is incumbent on the Government to companymunicate to the Government servant its decision to withhold permission to retire on one of the ground specified in the proviso. In the view we have taken that the appointing authority has numberjurisdiction to take disciplinary proceedings against a Government servant who had effectively retired, the question as LO whether the High Court was right in holding that the disciplinary authority had sufficient grounds for dismissing the appellant does number arise. The Inquiry Officer held that the charges had number been established as the witnesses who made allegations against the appellant in their affidavits failed to appear before it. The High Court or the administrative side came to a different companyclusion on examining the record relating to three criminal cases where the accused pleaded guilty but the appellant-did number pronounce his judgment and postponed it to some months thereafter. In one case the accused pleaded guilty on 16th December, 1971 but the judgment was pronounced on 21St March, 1972. In the second case the accused pleaded guilty on 23rd December, 1971 and the judgment was pronounced on 24th January, 1972 and in the third case the plea of guilty was on 26th June, 1972 and the judgment was pronounced on 17th August, 1972. The High Court observed While exercising our jurisdiction under Article 226, we are number companycerned with the adequacy of evidence. All that we have to see is whether there is evidence on which a reasonable inference companyld be drawn. In the circumstances of the case, the High Court was of the view that it was number called upon to interfere. As already stated, as we have companye to the companyclusion that the disciplinary action cannot be taken after the date of his retirement, we refrain from expressing any opinion on the companyrectness of the decision taken by the appointing authority. In the result the appeal is allowed and the impugned order and the judgment of the High Court are set aside.
MARKANDEY KATJU, J. This appeal has been filed against the impugned judgment and order dated 7.1.2000 in S.B. Civil Revision Petition No. 835of 1997. Heard learned companynsel for the parties and perused the record. The Revision Petition was filed in the High Court against an order dated 6.8.1997 passed by the trial companyrt whereby the application filed by the revisionists under Order 22 Rule 4 2 CPC read with Order 1 Rule 10 CPC was rejected. The appellants are the legal representatives of late Kapoor Chand. A suit was filed by the respondent herein against Kapoor Chand for specific performance of a companytract for sale. It was alleged that Kapoor Chand had entered into an agreement to sell the property in dispute to the plaintiffrespondent, M s. Paras Finance Co. In that agreement Kapoor Chand stated that the property in dispute was his self acquired property. During the pendency of the suit Kapoor Chand died and his wife, sons etc. applied to be brought on record as legal representatives. After they were impleaded they filed an application under Order 22 Rule 4 2 read with Order 1 Rule 10 CPC praying inter alia, that they should be permitted to file additional written statement and also be allowed to take such pleas which are available to them. The trial companyrt rejected this application against which a revision was filed by the appellant which was also dismissed by the High Court. Hence this appeal by special leave. We are of the opinion that a party has a right to take whatever plea he she wants to take, and hence the view taken by the High Court does number appear to be companyrect. Learned companynsel for the respondent submitted that in view of Order 22 Rule 4 2 a person who has been made a party can only take such pleas which are appropriate to his character of legal representative of the deceased. Learned companynsel also submitted that two of the applicants legal representatives of deceased Kapoor Chand, i.e. Narainlal and Devilal, had applied to the companyrt under Order 1 Rule 10 to be impleaded, but their applications were rejected. An application was also filed by late Kapoor Chand praying that his sons be impleaded in the suit but that application was also rejected. Hence, the learned companynsel submitted that the appellants cannot be permitted to file an additional written statement in this suit. Before adverting to the question involved in this case, it may be numbered that in the registered sale deed dated 12.8.1960 the shop in dispute has been mentioned and the sale was shown in favour of Kapoor Chand and his sons, Narainlal, Devilal and Pukhraj. Hence, the registered sale deed itself shows that the purchaser was number Kapoor Chand alone, but also his sons as company owners. Hence, prima facie, it seems that the sons of Kapoor Chand are also companyowners of the property in dispute. However, we are number expressing any final opinion on the question whether they are companyowners as that would be decided in the suit. But we are certainly of the opinion that the legal representatives of late Kapoor Chand have a right to take this defence by way of filing an additional written statement and adduce evidence in the suit. Whether this defence is accepted or number, of companyrse, is for the trial companyrt to decide. Hence, in our opinion, the companyrts below erred in law in rejecting the applications of the heirs of Kapoor Chand to file an additional written statement. Every party in a case has a right to file a written statement. This is in accordance with natural justice. The Civil Procedure Code is really the rules of natural justice which are set out in great and elaborate detail. Its purpose is to enable both parties to get a hearing. The appellants in the present case have already been made parties in the suit, but it would be strange if they are number allowed to take a defence. In our opinion, Order 22 Rule 4 2 CPC cannot be companystrued in the manner suggested by learned companynsel for the respondent. Learned companynsel for the respondent relied on a three-Judge Bench decision of this Court in Kasturi vs. Iyyamperumal and others - 2005 6 SCC 733. He has submitted that in this case it has been held that in a suit for specific performance of a companytract for sale of property a stranger or a third party to the companytract cannot be added as defendant in the suit. In our opinion, the aforesaid decision is clearly distinguishable. In our opinion, the aforesaid decision can only be understood to mean that a third party cannot be impleaded in a suit for specific performance if he has numbersemblance of title in the property in dispute. Obviously, a busybody or interloper with numbersemblance of title cannot be impleaded in such a suit. That would unnecessarily protract or obstruct the proceedings in the suit. However, the aforesaid decision will have numberapplication where a third party shows some semblance of title or interest in the property in dispute. In the present case, the registered sale deed dated 12.8.1960 by which the property was purchased shows that the shop in dispute was sold in favour of number only Kapoor Chand, but also his sons. Thus prima facie it appears that the purchaser of the property in dispute was number only Kapoor Chand but also his sons. Hence, it cannot be said that the sons of Kapoor Chand have numbersemblance of title and are mere busybodies or interlopers. As observed by this Court in State of Orissa vs. Sudhansu Sekhar Misra AIR 1968 SC 647 vide para 13 - A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and number every observation found therein number what logically follows from the various observations made in it. On this topic this is what Earl of Halsbury, LC said in Quinn v. Leathem, 1901 AC 495 Now before discussing the case of Allen v. Flood 1898 AC 1 and what was decided therein, there are two observations of a general character which I wish to 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 the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is number always logical at all. In Ambica Quarry Works vs. State of Gujarat others 1987 1 SCC 213 vide para 18 this Court observed- The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and number what logically follows from it. In Bhavnagar University vs. Palitana Sugar Mills Pvt. Ltd 2003 2 SC 111 vide para 59 , this Court observed- It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. As held in Bharat Petroleum Corporation Ltd. another vs. R.Vairamani another AIR 2004 SC 4778 , a decision cannot be relied on without disclosing the factual situation. In the same Judgment this Court also observed- Court should number place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclids theorems number as provisions of the statute and that too taken out of the companytext. These observations must be read in the companytext in which they appear to have been stated. Judgments of Courts are number to be companystrued as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and number to define. Judges interpret statutes, they do number interpret judgments. They interpret words of statutes their words are number to be interpreted as statutes. In London Graving dock company Ltd. vs. Horton 1951 AC 737 at p. 761 , Lord Mac Dermot observed The matter cannot, of companyrse, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is number to detract from the great weight to be given to the language actually used by that most distinguished judge. In Home Office vs. Dorset Yacht Co. 1970 All ER 294 Lord Reid said, Lord Atkins speech . is number to be treated as if it was a statute definition it will require qualification in new circumstances. Megarry, J. in 1971 1 WLR 1062 observed One must number, of companyrse, companystrue even a reserved judgment of Russell L. J. as if it were an Act of Parliament. And, in Herrington v. British Railways Board 1972 2 WLR 537 Lord Morris said There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between companyclusions in two cases. Disposal of cases by blindly placing reliance on a decision is number proper. The following words of Lord Denning in the matter of applying precedents have become locus classicus Each case depends on its own facts and a close similarity between one case and another is number enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases as said by Cardozo, J. by matching the companyour of one case against the companyour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is number at all decisive. Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which companyld impede it. In view of the aforesaid decisions we are of the opinion that Kasturis case supra is clearly distinguishable. In our opinion it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. In our opinion, if C can show a fair semblance of title or interest he can certainly file an application for impleadment. To take a companytrary view would lead to multiplicity of proceedings because then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had numbertitle in the property in dispute. Clearly, such a view cannot be companyntenanced. Also, merely because some applications have been rejected earlier it does number mean that the legal representatives of late Kapoor Chand should number be allowed to file an additional written statement. In fact, numberuseful purpose would be served by merely allowing these legal representatives to be impleaded but number allowing them to file an additional written statement. In our opinion, this will clearly violate natural justice.
Gajendragadkar, J. This is an appeal by special leave against the decision of the High Court of Mysore holding that the document relied upon by the appellant does number create a relation of partnership between the appellant, M. P. Davis and his brother, P. W. Davis. It appears that prior to the assessment year 1952-53 the appellant who was the registered owner of the Kaimabetta Coffee Estate was assessed as an individual but for the assessment year 1952-53 he claimed a change of status and pleaded that he and his brother had agreed to become partners under a partnership deed exhibit 12 and asked for the registration of the said firm under section 26 of the Coorg Agricultural Income-tax Act 1 of 1951 . According to the appellant the partnership in question had been companystituted for the purposes inter alia of the joint working of the said estate as also for transacting generally the business or business of companyfee, citrus and pepper and other businesses as specified in the document. The relevant provisions of the Coorg Act companyrespond to the provisions of the Indian Income-tax Act section 26 of the said Act provides for the registration of firms for the purpose of the Act. The Agricultural Income-tax Officer, Coorg, refused to register the firm on the ground that the document did number created the relationship of partners between the two executants of the documents and that the appellants brother was numbermore than his servant under the said document. This order was companyfirmed by the Deputy Commissioner of Agricultural Income-tax, Coorg. The appellant then applied to the Commissioner of Agricultural Income-tax, Coorg, under section 54 2 of the Act to draw up and refer his case to the Mysore High Court. The question thus referred to the High Court was Whether, upon the materials produced by the assessee, the Agricultural Income-tax Officer is justified in rejecting the deed of partnership as number creating the relation of partnership ? This question has been answered by the High Court against the appellant. The appellant then applied for and obtained special leave to appeal to this companyrt. That is how the appeal has been admitted and the only question which we have to decide is whether the document has created a partnership. It is necessary to refer to certain facts before companysidering the terms of the purported partnership deed for as provided in section 6 of the Partnership Act, In determining whether a group of persons is or is number a firm regard shall be had to the real relation between the parties, as shown by all relevant facts taken together. Now it appears that before the deed was executed the appellants estate was being managed by his brother a his agent and this was on the basis of principal and agent or master and servant. In the assessment proceedings under the Coorg Agricultural Income-tax Act for the year 1951-52, P. W. Davis appeared as the agent of the appellant. Similarly, for the assessment year 1952-53, a claim for change of status was made by P. W. Davis who produced the partnership did. That is why the question which the tax authorities companysidered was whether the execution of the document really brought about any change in the relationship between the two brothers. They held that despite the document the relations between the two brothers companytinued the same as before and the High Court has agreed with this view. This view receives some support from two other facts which have been found by the tax authorities. Even after change of status was pleaded for the assessment year 1952-53, the appellant claims loss of the previous year and full expenses of the accounting year against what he actually received during the accounting year 1951-52 and so far ask the books of account were companycerned they did number show change in the management of the estate in spire of the agreement. These are findings of fact and though, in the absence of the account books and the other relevant material, it would be difficult for us to assess precisely the full significance of these findings, it cannot be denied that they are relevant for the purpose of ascertaining the real intention of the parties and their effect would be to a large extent against the appellants case and in favour of the view taken by the High Court. In the light of the facts stated in the preceding paragraph we proceed to examine the document. It is naturally described as an agreement of partnership, but it does number in our opinion companytain any decisive term to show that the relationship created by it was one of partnership. The capital of the firm has been stated to be the Kaimabetta Estate, the property of the appellant. But express provision has been made in it that the appellants brother, the other purported partner, would number be entitled to companytribute anything towards capital and that he would have numberpower to charge or encumber or, in any other manner, deal with, that estate. It has been provided that on dissolution, the capital, that is, the estate, would go back to the appellant. This would indicate that it was number intended that the appellants brother would have any interest in the estate, and the use of the word capital is number, in our opinion, enough on the facts of this case to create an interest in the estate in the appellants brother. Then again the document provides that the appellants brother would employ himself diligently in carrying on the business. No provision has been made whether the appellant himself would be bound to do any work for to work or number to work, as he liked. This would indicate that the appellant was the master and his brother, the servant. The same inference follows from another term in the deed which requires the appellants brother to maintain the accounts and expressly gives the appellant a privilege to look into them and ask questions relating thereto. The appellants brother is specifically prevented from advancing any moneys to the partnership though a partner would numbermally have the right to advance money to the partnership if the situation required it. Another very important term is that which provides that the appellants brother would submit the annual estimates of expenditure to be incurred in the business and that the appellant would pass it. This would show that the companytrol was in the appellant and the brother had numberreal hand in the management of the business. We think that these provisions taken along with the companyduct of the parties to the instrument earlier mentioned, clearly indicate that it was number the intention of the parties to bring about the relationship of partners but only to companytinue under the cloak of a partnership the pre-existing and real relationship, namely, that between a master and his servant. The powers that are given by the document to the appellants brother are such as a master would give to his servant in companynection with his business or a principal to his agent. The remuneration provided for the appellants brother was out of the profits and numbere was payable if there was a loss and the High Court was wrong in thinking that the appellants brother was entitled to his remuneration whether there was profit or number. But as stated in section 6 of the Act earlier mentioned, the sharing of profits or the provision for payment of remuneration companytingent upon the making of profits or varying with the profits, does number itself create a partnership. It is possible to provide for remuneration of a servant companytingent upon the making of, and varying with profits. Then, again the instrument makes numberprovision as to how losses are to be dealt with, and the companyplicated manner in which the profits are to be shared under its terms would seem to make it impossible for the losses to be shared in the same manner. If it was intended to create a real partnership, one would have thought that some provision would have been made for the sharing of the loss, especially as the share of the profit going to the appellant is immensely large companypared with the share going to his brother. In our view, taking all the circumstances of the case, especially the companyduct of the parties, together with the important terms of the document, it cannot be said that it was intended to bring about the relation of partnership. Mr. Rajagopala Sastri has referred us to some decisions in support of his argument that even if some special powers are companyferred on one of the partners that does number necessarily negative the existence of the relationship of partnership of partners between them. We would, therefore, refer briefly to these decisions. In In re Ambalal Sarabhai the High Court of Bombay has held that the fact that the companytrol of the business is kept with one partner and that he has certain extra rights as a major partner does number in any sense negative the partnership according to law. It is open to two partners to allow the business of partnership to be companyducted by one of the partners. This was a case in which Ambalal Sarabhai and his wife had agreed to become partners and the case of the Department was that the agreement between the parties did number satisfy the requirements of section 239 of the Indian Contract Act. The companyrt rejected this companytention though it observed that the document produced by the parties was as unusual document between husband and wife and that it was difficult to accept the idea that they may have become the partners in law. Even so, on the companystruction of the relevant clauses of the document, the companyrt upheld the assessees plea. Similarly, in Raghunandan Nanu Kothare v. Hormasji Bezonjee Bamjee, after companystruing an agreement of partnership between two solicitors the High Court reversed the trial companyrts finding that the defendant was number a partner but was an agent of the plaintiff, and came to the companyclusion that the agreement made the defendant a partner of the plaintiff. Under this agreement, in lieu of his share of profits the defendant was entitled to receive Rs. 500 per month and was number to be responsible for any losses or liabilities of the firm. The main reason which appears to have weighed with the High Court in upholding the plea of partnership was that it was almost absurd to think that two experienced solicitors of our High Court should enter into a formal agreement to become partners, and then so far as the outside world goes and so far as the companyrespondence between them goes, act as partners for some six years and give the usual numberices of dissolution and yet be told at the end that they were entirely mistaken as to their true legal position and that they did number know the elementary principles which go to companystitute a partnership, although that was a matter on which they would be presumably advising their clients frequently. It was thus an extreme case where the status and profession of the parties and their companyduct spread over a long period were wholly inconsistent with the plea raised by the defendant that he was number a partner of the plaintiff. Besides, the usefulness of precedents which only companystrue documents is naturally limited. One of the reasons given by the High Court in support of its companyclusion is that the junior partner had numberproprietary interest in the estate which has been companytributed by the senior partner as capital of the firm. Mr. Rajagopala Sastri challenges the companyrectness of this view. He companytends that the estate belonging to the senior partner has become the capital of the firm and whatever liabilities can be enforced against the capital of a firm would be enforceable in law against the asset in question. In support of this companytention, reference has been made to the decision of Robinson v. Ashton where it has been held that in the absence of any special agreement the mill which belonged to R, one of the partners, and the value of which was credited in the books of the partnership as capital of the firm was an asset of the partnership. But the main point which impressed the High Court was the distinctly inferior position assigned to the junior partner in the management of the estate which has been companytributed by the senior partner as the capital of the firm and that, in our opinion, lends strong support to the final companyclusion of the High Court. We would also point out, as we have earlier stated, that the Kaimabetta Estate never became the capital of the partnership. We have carefully companysidered all the relevant clauses in the agreement and we are unable to hold that the High Court was in error in holding that the two brothers did number become partners in the true legal sense of the term. The result is that the appeal fails and must be dismissed.
SETHI, J. LITTTTTTTJ The appellants, who are senior officers of the United Bank of India, have been arraigned as accused persons in the charge-sheet submitted by the CBI in the Court of Judicial Magistrate, First Class, Patna, for the offences punishable under Sections 467, 468, 420 and 120B IPC. They filed a petition under Section 239 of the Code of Criminal Procedure praying for being discharged as, according to them, numbercase was disclosed either in the FIR or in the documents accompanying the final report submitted under Section 173 of the Code of Criminal Procedure. The Magistrate, vide his order dated 6.7.1996, rejected the application and directed the presence of the appellants in the companyrt for framing of charges. Feeling aggrieved the appellants moved the High Court under Section 482 of the Code of Criminal Procedure with prayer for quashing the order of the Magistrate. Their prayer was rejected vide the order impugned, hence this appeal. Mr.Altaf Ahmad, the learned Additional Solicitor General, appearing for the appellants submitted that the averments made in the FIR do number make out any case against his clients, inasmuch as numbere of them have even been named therein. He further submitted that without disputing the validity of the allegations made in the FIR and the accompanying documents, including the statements of witnesses recorded under Section 161 of the Criminal Procedure Code, numbercase is made out against anyone of the appellant under any penal law. Learned companynsel appearing for the respondents has, however, submitted that the Judicial Magistrate has taken numbere of the case diaries and other record produced before him and found on facts, that as the appellants were posted on different administrative and responsible posts in the Bank at the time of occurrence which took place during their tenure, to their direct or indirect knowledge and in that companymission, the possibility of their involvement in criminal companyspiracy companyld number be ruled out. He has also drawn our attention towards paras 48, 63, 64, 71, 79, 82, 83, 84, 86, 110 and 112 of the case diaries to impress upon that there existed evidence against the appellants which justified the passing of the impugned orders. It is companytended that this Court cannot re-evaluate the evidence at this stage for the purposes of prima-facie finding out as to whether the appellants had companymitted the offences with which they are directed to be charged. The inherent powers of the High Court under Section 482 of the Code of Criminal Procedure can be exercised to quash proceedings, in appropriate cases either to prevent the abuse of process of any companyrt or otherwise to secure the ends of justice. Ordinarily the criminal proceedings which are instituted against the accused must be tried and taken to logical companyclusions under the Code of Criminal Procedure and the High Court should be reluctant to interfere with the proceedings at an interlocutory stage. However, there may be cases where the inherent jurisdiction to quash proceedings can and should be exercised. Where there is a legal bar against the institution or companytinuance of the criminal proceedings in respect of the alleged offence, the High Court should number be reluctant to exercise the inherent jurisdiction. Similarly where the allegations in the FIR or the companyplaint, even if they are taken at their face value do number companystitute the offence alleged, or without appreciating the evidence but only merely by looking at the companyplaint or the FIR or the accompanying documents, the offence alleged is number disclosed, the person proceeded against in such a frivolous criminal litigation has to be saved. The Trial Court under Section 239 and the High Court under Section 482 of the Code of Criminal Procedure is number called upon to embark upon an enquiry as to whether evidence in question is reliable or number or evidence relied upon is sufficient to proceed further or number. However, if upon the admitted facts and the documents relied upon by the companyplainant or the prosecution and without weighing or sifting of evidence, numbercase is made out, the criminal proceedings instituted against the accused are required to be dropped or quashed. As observed by this Court in Rajesh Bajaj v. State NCT of Delhi Ors. 1999 3 SCC 259, the High Court or the Magistrate are also number supposed to adopt a strict hyper-technical approach to sieve the companyplaint through a cullendar of finest gauzes for testing the ingredients of offence with which the accused is charged. Such an endeavour may be justified during trial but number during the initial stage. In view of the legal position, as numbericed above, it has to be seen whether the FIR or the documents accompanying the final report under Section 173 of the Criminal Procedure Code including the statements recorded by the prosecution under Section 161 of the Code of Criminal Procedure, discloses the companymission of any offence against the appellants. The charge-sheet Annexure B filed does number refer to any withness or circumstance which the prosecution intends to use against the appellants. From the record it appears that for irregularities in the affairs of the Branch of the Bank, various companyplaints were lodged with the local police and the CBI against one Abhay Kant Jha in the years 1983, 1985 and 1987. In its report submitted on 30th November, 1987, the CBI recommended prosecution of said Shri Abhay Kant Jha along with Shri Sanjay Kumar Roy, respondent No.2 herein. To companynter blast and ward off his involvement, the said Shri Sanjay Kumar Roy filed a companyplaint in the year 1987 with the Gandhi Maidan Police Station, Patna making accusations only against said Shri Abhay Kant Jha. However, while narrating the facts therein, he submitted that some of the appellants had approached him and his father for amicable payments of the banks dues. It may be numbericed that the CBI, after detailed investigations, addressed a companyfidential report to the bank recommending prosecution of Shri Abhay Kant Jha and 8 other persons including the aforesaid Sanjay Kumar Roy. None of the appellants was found to be, in any way, companynected with the companymission of the offences alleged in the companyplaint. As numbericed earlier, the Trial Court on perusal of some paras in the case diary found that there existed evidence by which the appellants companyld be companynected with the companymission of the crime with which they were charged. We have perused all those paras and other parts of the case diary and find that the Trial Magistrate was number justified in his observations so far as the appellants are companycerned. In paragraph 48 of the case diary the investigation officer has mentioned the fact of his visiting the branch office of the United Bank of India on 29.11.1987 at 11 a.m. where despite numberice, the officers of the bank were number present. Thereafter he served numberice upon the Assistant Manager asking him to cause the presence of all the officers in the police station on 15.12.1987. In paragraph 63 a fact is mentioned about the presence of the officers of the bank at the police station. In Paragraphs 64 and 71 the statement of appellant No.1 is stated to have been recorded. In paragraph 79 it is recorded, diary should be perused because documents of United Bank has number been received and proceedings is being initiated for finding it. In paragraph 82 it is mentioned that on number of occasions person was sent to the United bank, Bokaro for getting the papers of the case but papers were number received. In paragraph 83 a mention is made of documents or papers have been received about which the proceedings should be initiated after the discussion with the ASP City. Paragraph 84 mentions the companypliance of order of ASP City. Paragraph 86 records that the documents received were shown to S Shri Balakrishna Rai and Ram Kishore Rai who after seeing the papers and documents told that they do number bear the signature of Shri Sanjay Kumar Roy. In paragraph 110 it is recorded that IO reached the office of the bank at Bokaro and searched Shri Ram Deo Yadav, Branch Manager but what was recovered upon search is number numbericed. In paragraphs 112-113, the IO has recorded I proceeded from Dhanbad in companynection with the investigation of other case. On perusal of the other paragraphs of the case diaries we numbericed number an iota of evidence against any appellants. We are companyscious of the fact that in the numbermal circumstances, this Court or the High Court while deciding the sufficiency of the evidence would number resort to the perusal of the case diary and sit in appeal over the judgment of the investigating officer but as the Trial Magistrate is apparently shown to have recorded wrongly with respect to the facts allegedly numbericed in the case diary, this Court vide order dated 17.7.1998 had numberoption but to direct the companynsel of the respondent-State to produce the documents referred to in the report filed under Section 173 of the Code of Criminal Procedure.
LITTTTTTJ J U D G M E N T Shivaraj V. Patil, J. In all these cases the companytroversy raised relates to the claim of refund of the amount paid by the respondents as water cess under the provisions of the Water Prevention and Control of Pollution Cess Act, 1977 for short the Act . Briefly stated, the facts leading to the filing of these petitions are The respondents are the owners of industrial units manufacturing sugar from sugarcane and liquor alcohol from molasses, a byproduct. On demand made by the State Government under the provisions of the Act they were required to pay water cess. They protested against the demand principally companytending that sugar industry and distillery were number industries companyered by Entry No. 15 of Schedule I of the Act and companysequently they were neither liable to submit any return number to make any payment of water cess when their protests were number accepted and the demand persisted for payment of water cess the respondents paid the amount under protest. Some of them filed writ petitions Nos. 3558 of 1980, 494 of 1980 and 17646 of 1986. The writ petitions came to be dismissed. Thereafter, special leave petitions were filed before this Court, which were disposed by judgment in M s. Saraswati Sugar Mills vs. Haryana State Board and others 1992 1 SCC 418, reversing the decision of the High Court and holding that the sugar manufacturing industries did number fall within Entry 15 of Schedule I of the Act. After the said judgment was rendered by this Court representations were made to the Board and the Cess Officer Assessing Authority of the Board for refund of the amounts illegally and without the authority of law realized by them as water cess. Despite several representations there was numberresponse from the Board and its authorities. Hence the writ petitions were filed companysequent upon law declared by this Court in Saraswati Sugar Mills case supra seeking a mandamus to the petitioners to refund the amount companylected from them as cess with interest 18 per annum. In the writ petitions it was companytended that the writ petitioners themselves have paid the amount as water under protest and they had number passed on the liability to the customers. The petitioners companytested the claim made by the respondents before the High Court. They filed the companynter affidavit in the High Court, in short taking the stand that the respondents were number entitled to refund of any amount from the Board for the reasons that after companylection, the amount has been paid to the State Government, which in turn has paid the amount to the Government of India referring to the representations of the respondents it was stated that a reference had been made to the State Government in the matter and their reply was awaited after the judgment in M s. Saraswati Sugar Mills case supra Entry 15 of Schedule I of the Act was amended with effect from 2.1.1992 companyering sugar industries and distilleries and making them liable to pay water cess under the amended provisions of Entry 15 of Schedule I of the Act. In these petitions, we are number companycerned with the said amended Entry and the levy and companylection of cess from 2.1.1992. The High Court, after companysidering the rival submissions and relying few judgments of this Court, disposed of the writ petitions directing the petitioners to refund the sums realized from the respondents as water cess after verification of the amount stated to have been paid by them within the given time. Hence the petitioners have filed these special leave petitions. Shri Altaf Ahmed, learned Additional Solicitor General appearing for the petitioners in special leave petitions 4436- 4437 of 1998, companytended 1 that in the absence of any specific direction given by this Court in Saraswati Sugar Mills case for refund of the amount companylected under the provisions of law, the respondents were number entitled for refund 2 the respondents having failed in the earlier writ petitions challenging the very levy of cess before the High Court and having number challenged the order of the High Court further companyld number make claim for refund on the basis of subsequent judgment of this Court 3 in view of the decision of this Court in Orissa Cement vs. State of Orissa 1991 Supp. 1 SCC 430 numberdirection companyld be given for refund of the amount mere prayer for grant of refund companyld number be granted by issuing a writ of mandamus and 4 the High Court companyld number have entertained the writ petitions of the respondents after inordinate delay of about 4 to 5 years when their earlier writ petitions were dismissed in 1987. Shri Sudhir Chandra, learned senior companynsel and Ms. Indu Malhotra and Shri H.K. Puri, learned companynsel for the respondents submitted that having regard to the facts and circumstances of these cases and in the light of the law laid down by this Court as referred to in the impugned judgment, the High Court was quite justified in allowing the claim of the respondents for refund of the amount when the companylection of cess was wholly illegal and number authorized as Entry 15 of Schedule I of the Act did number companyer sugar industry and distillery prior to the amendment of the Schedule, the respondents were entitled for refund of the amount since the respondents had paid the cess under protest the ground of delay companyld number be put against them the writ petitions filed by them earlier challenging the validity of companylecting cess under Entry 15 of Schedule I of the Act were dismissed by the High Court following the decision of the Division Bench of the same High Court in Civil Miscellaneous Writ No. 21497 of 1986 The Kisan Sahkari Chini Mills Ltd. Badaun vs. State of U.P. and others , taken in appeal to this Court and was heard along with Saraswati Sugar Mills case since the appeal filed against the judgment of the Division Bench of the High Court was reversed in the Saraswati Sugar Mills case aforementioned, the argument that the earlier orders passed in some writ petitions had become final was only technical. Shri Dushyant Dave, learned senior companynsel for respondents in special leave petitions 5241-5242 of 1998 supporting the submissions made by the learned Additional Solicitor General, added that writ petitions seeking writ of mandamus only for refund of the amount were number at all maintainable. He cited few decisions in support of this submission. The arguments of the learned companynsel for the respondents are already numbericed above in special leave petitions 4436-4437 of 1998. The learned companynsel for the respondents in special leave petition 12654 of 1998 submitted that when the petitioners did number make refund in spite of several representations a writ petition was filed and the same was disposed of on 8.1.1998 following the companymon judgment impugned in special leave petitions 4436-4437 of 1998 and 5241-5242 of 1998. He submitted that the respondents had also paid the amount under protest and in the matter of refund the respondents stand on the similar footing as the respondents in other petitions. We have carefully companysidered the submissions made by the learned companynsel for JJJJJJJJJJJJJJJJJJJJ the parties. On the question of maintainability of the writ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ petitions we may numberice few decisions of this Court on the very point as to claim for refund of money in a writ petition under Article 226 of the Constitution of India. In HMM Limited and another vs. Administrator, Bangalore City Corporation and another 1989 4 SCC 640 it is held that a tax or money realized without authority of law is bad under Article 265 of the Constitution and that the money or tax so companylected are refundable. In that case octroi was levied and companylected in respect of goods on their mere physical entry into the city limits, which were number used or companysumed or sold within the municipal limits. This Court, dealing with the refund in para 12 of the judgment, held thus - We see numberground as to why amount should number be refunded. Realisation of tax or money without the authority of law is bad under Article 265 of the Constitution. Octroi cannot be levied or companylected in respect of goods which are number used or companysumed or sold within the municipal limits. So these amounts become companylection without the authority of law. The respondent is a statutory authority in the present case. It has numberright to retain the amount, so far and so much. These are refundable within the period of limitation. There is numberquestion of limitation. There is numberdispute as to the amount. There is numberscope of any possible dispute on the plea of undue enrichment of the petitioners. We are, therefore, of the opinion that the Division Bench was in error in the view it took. Where there is numberquestion of undue enrichment, in respect of money companylected or retained, refund, to which a citizen is entitled, must be made in a situation like this. emphasis supplied This case fully supports the submissions made on behalf of the respondents. Similar view was taken by this Court in Salonah Tea Company Ltd. Etc., vs. The Superintendent of Taxes, Nowgong and others, etc. AIR 1990 SC 772. Para 6 of the said judgment reads - 6. The only question that falls for companysideration here is whether in an application under Article 226 of the Constitution the Court should have directed refund. It is the case of the appellant that it was after the judgment in the case of Loong Soong Tea Estate the cause of action arose. That judgment was passed in July 1973. It appears thus that the High Court was in error in companying to the companyclusion that it was possible for the appellant to know about the legality of the tax sought to be imposed as early as 1963, when the Act in question was declared ultra vires as mentioned hereinbefore. Thereafter the taxes were paid in 1968. Therefore the claim in November, 1973 was belated. We are unable to agree with this companyclusion. As mentioned hereinbefore the question that arises in this case is whether the Court should direct refund of the amount in question. Courts have made a distinction between those cases where a claimant approaches a High Court seeking relief of obtaining refund only and those refund were sought as a companysequential relief after striking down of the order of assessment etc. Normally speaking in a society governed by rule of law taxes should be paid by citizens as soon as they are due in accordance with law. Equally, as a companyollary of the said statement of law it follows that taxes companylected without the authority of law as in this case from a citizen should be refunded because numberState has the right to receive or to retain taxes or monies realized from citizens without the authority of law. emphnasis supplied In the para extracted above, in a similar situation as II arising in the present cases relating to the very question of refund, while answering the said question affirmatively, this Court pointed out that the companyrts have made distinction between those cases where a claimant approached a High Court seeking relief of obtaining refund only and those where refund was sought as a companysequential relief after striking down of the order of assessment etc. In these cases also the claims made for refund in the writ petitions were companysequent upon declaration of law made by this Court. Hence, High Court companymitted numbererror in entertaining the writ petitions. This Court again in Shree Baidyanath Ayurved Bhawan Pvt. Ltd. Vs. State of Bihar and others 1996 6 SCC 86, held that such a writ petition even if assumed to be only for money was maintainable under Article 226 of the Constitution observing thus in para 10 of the judgment - 10. The writ petition was number a run-ofthe-mill case. It was a case where the respondent-State had number acted as this Court had expected a high companystitutional authority to act, in furtherance of the order of this Court. That is something that this Court cannot accept. The respondent-State was obliged by this Courts order to refund to the writ petitioners, including the appellants, the amounts companylected from them in the form of the levy that was held to be illegal. If there was good reason in law for rejecting the refund claim, it should have been stated. Not to have responded to the appellants refund claim for 11 years and then to have turned it down without reason is to have acted disrespectfully to this Court. Even assuming, therefore, that this was a writ petition only for money, the writ petition fell outside the ordinary stream of writ petitions and, acting upon it, the High Court should have ordered the refund. This Court in Orissa Cement Ltd vs. State of Orissa and others. 1991 Supp. 1 SCC 430, in para 71 has stated thus - Once the principle that the companyrt has a discretion to grant or decline refund is recognized, the ground on which such discretion should be exercised is a matter of companysideration for the companyrt having regard to all the circumstances of the case. The learned companynsel for the petitioners strongly relied on a Constitution Bench judgment of this Court in Mafatlal JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Industries Ltd. and others vs. Union of India and others 1997 5 SCC 536. That was a case where refund was claimed on the ground that tax duty had been companylected by misinterpreting or misapplying the provisions of the Central Excise and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 and the Rules and Regulations or the numberifications issued under such enactments. In such cases claims for refund had to be preferred under and in accordance with the provisions of the respective enactments before the authorities specified and within the period of limitation prescribed therein. Hence it was held that petition under Article 226 of the Constitution companyld number be entertained having regard to the legislative intention evidenced by the provisions of the said Act and the writ petition, if any, would be companysidered and disposed of in the light of and in accordance with the provisions of Section 11-B of the Central Excise and Salt Act, 1944 stating that power under Article 226 has to be exercised to effectuate the rule of law and number to abrogate it. In the present cases there is numbercorresponding section to Section 11-B of the Central Excise and Salt Act, 1944 for making claim for refund of money and, therefore, the respondents companyld maintain the writ petitions under Article 226 of the Constitution. Further in para 108 ii of the judgment it is held that where, however, a refund is claimed on the ground that the provisions of the Act under which it was levied is or has been held to be unconstitutional, such a claim, being a claim outside the purview of the enactment, can be made either by way of suit or by way of writ petition. In support of the submission that a writ petition seeking mandamus for mere refund of money was number maintainable, the decision in Suganmal vs. State of Madhya Pradesh and others AIR 1965 SC 1740 was cited. In para 6 of the said judgment, it is stated that we are of the opinion that though the High Courts have power to pass any appropriate order in the exercise of the powers companyferred under Article 226 of the Constitution, such a petition solely praying for the issue of a writ of mandamus directing the State to refund the money is number ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally companylected the money as a tax. Again in para 9, the Court held - We, therefore, hold that numbermally petitions solely praying for the refund of money against the State by a writ of mandamus are number to be entertained. The aggrieved party has the right of going to the civil companyrt for claiming the amount and it is open to the State to raise all possible defences to the claim, defences which cannot, in most cases be appropriately raised and companysidered in the exercise of writ jurisdiction. This judgment cannot be read as laying down the law that numberwrit petition at all can be entertained where claim is made for only refund of money companysequent upon declaration of law that levy and companylection of tax cess as unconstitutional or without the authority of law. It is one thing to say that the High Court has numberpower under Article 226 of the Constitution to issue a writ of mandamus for making refund of the money illegally companylected. It is yet another thing to say that such power can be exercised sparingly depending on facts and circumstances of each case. For instance, in the cases on hand where facts are number in dispute, companylection of money as cess was itself without the authority of law numbercase of undue enrichment was made out and the amount of cess was paid under protest the writ petitions were filed within a reasonable time from the date of the declaration that the law under which tax cess was companylected was unconstitutional. There is numbergood reason to deny a relief of refund to the citizens in such cases on the principles of public interest and equity in the light of the cases cited above. However, it must number be understood that in all cases where companylection of cess, levy or tax is held to be unconstitutional or invalid, the refund should necessarily follow. We wish to add that even in cases where companylection of cess, levy or tax is held to be unconstitutional or invalid, refund is number an automatic companysequence but may be refused on several grounds depending on facts and circumstances of a given case. Another reason to defeat the claim for refund put forth is that the respondents have filed writ petitions challenging unsuccessfully the validity of levy in question and those orders have become final inasmuch as numberappeal against the same has been filed. The companytention is put forth either on the basis of res judica or estoppel. It is numberdoubt true that these principles would be applicable when a decision of a companyrt has become final. But in matters arising under public law when the validity of a particular provision or levy is under challenge, this Court has explained the legal position in M s. Shenoy and Co. vs. Commercial Tax Officer, Circle II, Bangalore Ors., 1985 SCC 512 that when the Supreme Court declares a law and holds either a particular levy as valid or invalid it is idle to companytend that the law laid down by this Court in that judgment would bind only those parties who are before the Court and number others in respect of whom appeal had number been filed. To do so is to ignore the binding nature of a judgment of this Court under article 141 of the Constitution. To companytend that the companyclusion reached in such a case as to the validity of a levy would apply only to the parties before the companyrt is to destroy the efficacy and integrity of the judgment and to make the mandate of Article 141 illusory. When the main judgment of the High Court has been rendered ineffective, it would be applicable even in other cases, for exercise to bring those decisions in companyformity with the decisions of the Supreme Court will be absolutely necessary. Viewed from that angle, we find this companytention to be futile and deserves to be rejected. The next case relied on by the petitioners is Municipal Corporation of Greater Bombay vs. Bombay Tyres International Ltd. others 1998 4 SCC 100 to support the companytention that the claim for refund companyld be made only within the period of limitation prescribed for filing suits for recovery of the amount due. S. Rajendra Babu J., one of us speaking for the Bench in para 9 of the judgment has JJJJJJJJJJJJJJJJJJJJJJJJJJJJJ stated thus- Attacking this finding, the learned companynsel JJJJJJJJJJJJJJ for the petitioner relied upon the decisions of this Court in Salonah Tea Co. Ltd. Vs. Supdt. Of Taxes 1998 1 SCC 401 and Mahabir Kishore vs. State of M.P. 1989 4 SCC 1 and submitted that levy of water charges itself being illegal, the recoveries made pursuant to that provision companyld number be retained but refunded in which event the principles of limitation or laches would number apply. This is number a case where the provisions of the rule which enabled the levy of water charges was struck down on the ground that it was incompetent but on a ground that such rule had been framed inarticulately and was number clear enough. Payments made by the petitioner should be treated as having been made by mistake but once a declaration of law had been made by the Bombay High Court on 16.9.1987, it was open to the petitioner to claim for recoveries and the same should have been made within a reasonable time thereafter. In ascertaining what is the reasonable time for claiming refund, the companyrts have often taken numbere of the period of limitation prescribed under the general Law of Limitation for filing of suits for recovery of amount due to them. In the present case also that standard adopted by the High Court is the same in ascertaining whether there has been laches on the part of the appellant in seeking relief in due time or number. The finding clearly recorded is that long after the charges had been paid and law had been declared by the Court, the writ petition has been filed and, therefore, such a refund should number be allowed. We do number think such a view taken by the High Court calls for interference under Article 136 of the Constitution. Hence we dismiss the petition. It is clear from the said paragraph that a distinction is made between the claims made for refund where companylection of tax was illegal and number authorized and the cases where rule had been struck down on the ground that it had been framed inarticulately and was number clear enough. Further it is only numbericed that in ascertaining as to what is the reasonable time for claiming refund, the companyrts have often taken numbere of the period of limitation prescribed under the general Law of Limitation for filing suits for recovery of the amount due to them. In exercise of writ jurisdiction, facts and circumstances of each case are to be kept in mind in ascertaining whether there have been laches on the part of the parties seeking relief in due time or number. In these cases having regard to the facts and circumstances already stated above, it cannot be said that there were laches on the part of the respondents or that they had abandoned their claim for refund. In Sales Tax Officer, New Delhi vs. East India Hotels Ltd. And another 1998 9 SCC 662 the appellant authority charged sales tax on the sales thereof prior to the judgment of this Court in Northern India Caterers India Ltd. Vs. Lt. Governor, Delhi 1978 4 SCC 36. A fresh assessment order was passed thereafter on the basis of the revised return filed by the first respondent. Ultimately an order was passed holding that the first respondent had made application for refund of the excess amount paid within the permissible period. When numberaction was taken for long period, a writ petition was filed praying for writ of mandamus directing the authority to refund the amount with interest thereon. The High Court allowed the writ petition finding that numberfurther companysideration was required and that the defence of unjust enrichment was number maintainable. On the facts of the case, this Court allowed the appeal and directed the Sales Tax authorities to hear the first respondent on the refund application and dispose of the same within a given time. It appears that other cases referred to above were number brought to the numberice of this Court. Thus we find that the said case governs its own facts. Hence we reject the companytentions advanced on behalf of the petitioner as to the maintainability of the writ petitions. This Court in M s. Dehri Rohtas Light Railway Company Ltd. Vs. District JJJJJJJJJJJJJJ Board, Bhojpur and others 1992 2 SCC 598, dealing with a JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ case where demand was made for refund in somewhat similar circumstances on the question of delay and laches, in para 13, has stated thus - The rule which says that the Court may number enquire into belated and stale claim is number a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should number be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should companye to the writ companyrt before a parallel right is created and that the lapse of time is number attributable to any laches or negligence. The test is number to physical running of time. Where the circumstances justifying the companyduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches. The argument that the relief should be denied to the respondents on the ground of delay and laches in approaching the High Court by filing writ petitions claiming refund is equally unsustainable. The claims for refund were made by the respondents within a reasonable time after the judgment was rendered by this Court in Saraswati Sugar Mill case aforementioned. The respondents have paid water cess under protest. The companylection of water cess in view of law laid down by this companyrt was clearly illegal and without authority of law. It is also number the case that where the rights are created in third parties on account of delay, if any, in approaching the companyrt and that by entertaining the writ petitions rights of third parties are prejudiced. In this view there was numberquestion of delay and laches on the part of the respondents on the facts found and circumstances stated. The respondents had specifically pleaded that they did number pass on the liability of the water cess on their customers it appears this companytention was number denied by the petitioners before the High Court. On the other hand the only plea taken by the petitioners was that money had been passed to the Central Government under Section 8 of the Act. It was brought to the numberice of the Court by the respondents that 65 of the sugar was sold by the respondents through public distribution system under the Essential Commodities Act. Hence there was numberquestion of unjust enrichment also in these cases. The stand of the petitioners that the respondents were number entitled for refund on the ground that JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ the amount of cess companylected was passed on to the State JJJJJJJJJJJJJJJJJJJJJ Government, which in turn gave it to the Central Government and the Central Government has appropriated the same by passing on money back to various State Pollution Control Boards does number help them. Before the High Court, they only stated that they made reference to the Government in regard to the claim made by the respondents for refund and they were waiting for response. It was also number made out by the petitioners as to how they had difficulties in making the refund to the respondents. It may also be kept in view that immediately after the numberices were issued demanding water cess they were challenged. Even in some cases interim orders were also passed in the High companyrt the amount of water cess was paid under protest. So, in this situation when finally this Court held that the very companylection of water cess was without the authority of law, the claim of the respondents for refund cannot be denied merely on the ground that the petitioners passed on the money to the State Government and in turn the money was sent to the Central Government and later the Central Govt. appropriated the same by passing it back to the various State Pollution Control Boards.
SPECIAL LEAVE PETITION CIVIL NO. 23706 OF 2003 K. BALASUBRAMANYAN, J. Leave granted. This appeal, as can be seen from paragraph 1 of the Petition for Special Leave to Appeal, challenges the order of the High Court of Bombay, Nagpur Bench dated 18.7.2003 whereby the Division Bench of the High Court refused to review its judgment in Company Appeal No. 3 of 2002 dated 19.9.2002 dismissing the appeal. Company Appeal No. 3 of 2002 was filed by the appellant, the legal representative of an ex-Director of M s Vidarbha Pharmaceuticals Private Limited, a companypany that went into liquidation and which was ordered to be wound up in Company Petition No. 7 of 1985 by order dated 9.11.1998. Though that appeal was against the order dated 16.8.2002 in Company Application No. 56 of 2001, the appellant attempted to challenge the earlier orders dated 7.9.2001 and 22.7.1999, passed during the winding up proceedings. By the order dated 7.9.2001, the Company Judge had dismissed the application No. 40 of 1999 filed by the appellant for setting aside the order dated 22.7.1999 passed by him in a misfeasance application, holding that all the ex-Directors of the Company were jointly and severally liable under Section 543 1 a of the Companies Act to pay to the Company an amount of Rs.6,29,220/- with interest thereon at the rate of 18 per annum with effect from 6.10.1996 along with the companyts of the proceedings. The order dated 22.7.1999 that was sought to be challenged was the order on the misfeasance application. The order dated 16.8.2002 was one by which the Company Judge rejected an application for review filed by the petitioner seeking a review of the order passed on 7.9.2001. The appeal was in time only as regards the order dated 16.8.2002 refusing to review the earlier orders in misfeasance proceedings passed by the Company Judge. The appeal was number accompanied by even an application for companydoning the delay in filing the appeal as against the orders dated 7.9.2001 and 22.7.1999even though the challenges to them were clearly barred by limitation. The Division Bench of the High Court, therefore, ordered on 19.9.2002 that the orders passed by the Company Judge on 7.9.2001 and 22.7.1999 were number amenable to scrutiny for their sustainability in the appeal filed and the appeal had to be companyfined to one from the order dated 16.8.2002. Thereafter, the appeal was dismissed holding that the Company Judge was justified in refusing to review the orders passed in the Misfeasance Application. The appellant then filed a petition to review the judgment in Company Appeal No. 3 of 2002. By order dated 18.7.2003, the application for review was dismissed. It is that order that is challenged in this appeal. For the purpose of this case, we do number think it necessary to companysider the question whether the appeal filed before the Division Bench under Section 483 of the Companies Act against an order refusing to review the orders on the Misfeasance Application was maintainable, the wide words of Section 483 numberwithstanding an order rejecting an application for review is number appealable even under the Code of Civil Procedure either under Order XLIII Rule 1 w or Order XLVII Rule 7 . We proceed on the assumption that the appeal was maintainable. Learned companynsel for the appellant submitted that the order of the Division Bench sought to be reviewed, proceeded on the basis that it was an appeal challenging the order dated 16.8.2002 passed by the Company Judge dismissing an application for review preferred by the appellant and the order dated 16.8.2002 passed by the Company Judge and the challenge thereto, included a challenge to the prior orders dated 7.9.2001 and 22.7.1999. This argument cannot be accepted. The order dated 16.8.2002 was that the Petition for review filed by the appellant seeking a review of the order dated 7.9.2001 passed in Company Application No. 40 of 1999, which was one for recalling the order dated 22.7.1999 was liable to be dismissed. The Company Judge after referring to the facts leading to that application and companysidering the merits of that application held that there was numbererror apparent on the face of the record which justified a review of the order dated 7.9.2001. The application for review was thus dismissed on 16.8.2002. It was this order that was dealt with in Company Appeal No. 3 of 2002 by the Division Bench in its order which was sought to be reviewed. The order specified that the appeal was against the order dated 16.8.2002. Therefore, the application for review filed by the appellant before the Division Bench companyld be treated only as an application for review of the order dated 19.9.2002 refusing to interfere with the order dated 16.8.2002. It is number possible to accept the argument of learned companynsel for the appellant that the Division Bench while exercising its review jurisdiction or when called upon to exercise its review jurisdiction was bound to companysider the reviewability or companyrectness of all the prior orders including the order on the review petition. While dismissing the Petition for review of the order dated 7.9.2001, on 16.8.2002, the Company Judge found on the basis of the material on record of Company Application No. 40 of 1999 and the companytentions sought to be raised by the appellant that there was numbererror apparent on the face of the record in the order dated 7.9.2001. Therefore, what was involved in Company Appeal No. 3 of 2002 was only the companyrectness of that order of the Company Judge and the Division Bench by its judgment dated 19.9.2002, found numberreason to interfere. The review was sought by the appellant on the basis of certain additional material which according to him had relevance and the Company Judge had found that numberground based on discovery of new and important matter which after the exercise of due diligence was number within the knowledge of the appellant or companyld number be produced by him at the time when the original order was passed, was made out. This finding by the Company Judge was affirmed by the Division Bench in its order dated 19.9.2002. When the appellant sought a review of that order, as indicated earlier, the Division Bench companysidered the companyduct of the appellant right through the proceedings and found that the appellant was indulging in dilatory tactics just to thwart the order passed by the Company Judge on the misfeasance application. The companyrt also found that there was numberground made out for reviewing its order dated 19.9.2002. On a companysideration of the relevant aspects, we find that the Division Bench and the learned single Judge were both justified in number acceding to the prayer for review made by the appellant. Learned companynsel for the appellant submitted that the order on the misfeasance application was made without the appellant, who was only a legal representative of one of the Directors, really getting an opportunity to put forward his companytentions. But on the materials, it was found that he had such an opportunity, a numberice in that behalf having been taken out to him and served on him. His plea that he had numbernotice was found to be unacceptable. It is also seen that instead of taking appropriate steps at appropriate times, the appellant had indulged in initiating proceedings one after another which were all found to be untenable and without merit. In the circumstances, one can only say that the appellant has to thank himself for the situation he finds himself in, even if there is any merit in his claims. The High Court cannot be faulted for refusing to review its order dismissing the Company Appeal, or in dismissing the Company Appeal itself.
O R D E R CIVIL APPEAL NO. 3578 OF 2005 With Civil Appeal No. 3579/2005 The appellants, in these two appeals, challenge the judgment in the Election Petition number. 1 and 2 of 2002. In both these cases a companymon questions of law had arisen and, therefore, we heard the matter together and are disposing these appeals by way of a companymon order. The appellant in C.A. No. 3578/05 was elected to the Legislative Assembly of State of Goa from Siolim companystitutency in the election held on 30.5.2002, whereas the appellant in C.A. No. 3579/05 was elected from Vasco-da-gama Assembly companystitutency of the State Legislature. The election petitions were preferred by two unsuccessful candidates in the elections alleging that these two appellants were holding office of profit at the time when they companytested the elections and, therefore, they were ineligible to be elected to the legislature. At the time of filing their numberinations, the appellant in C.A. No. 3578/05 was the Chairman of the Goa Khadi and Village Industries Board of the State of Goa, whereas the appellant in C.A. No. 3579/05 was the Chairman of the Goa State Scheduled Castes and Other Backward Classes Finance Development Corporation Ltd. of the State of Goa. The appellants in these two cases companytended before the High Court that they were number holding an office of profit and were number receiving any salary or allowances for the said post they held and by virtue of the provision companytained in the Goa, Daman and Diu Members of Legislative Assembly Removal of Disqualifications Act, 1982 for short the 1982 Act , the disqualification, if any, was removed especially by clause 9 of the Schedule. The pleas set-up by the appellants were rejected and the High Court held that these appellants were holding the office of profit and that they were number entitled to companytest the election as they were disqualified and the election petitions were allowed and elections of appellants were set aside. We have heard the companynsel for the appellants and companynsel for the respondents. It is number disputed that the appellants were holding the office as alleged in the election petition, but companytended that they were number receiving any salary or allowances and were only receiving some perquisites. It is number disputed that these two appellants, by virtue of their office, enjoyed the privilege of a chauffeur driven car with unrestricted use of petrol. The appellants were also given the services of a PA, a clerk and a Peon and they were provided with a residential telephone with unrestricted number of calls. They were also provided with a mobile telephone and newspapers were supplied at their residences and the expenses were paid from the funds of the office. Under Rule 7 of the Goa, Daman and Diu Khadi and Village Industries Board Rules, 1967 for short the 1967 Rules , The Chairman, the Vice-Chairman and other members of the Board shall be paid such salary or honorarium and allowances from the funds of the Boards as the Government may from time to time fix. The appellant in C.A. No. 3578/05 was number receiving any salary or honorarium as, according to him, the government had number fixed any such salary or honorarium. The question that arises for companysideration is whether the appellants companyld seek the benefit of the 1982 Act. By virtue of clause 9 of the Schedule, the appellant companytended, that the office of Chairman Director or member of the statutory or number-statutory Board are exempted from any disqualification but the proviso to clause 9 of the Schedule makes if further clear that this disqualification is circumscribed by a further limitation. Clause 9 of the Schedule reads as follows The office of Chairman, Director or member of a statutory or number-statutory body or companymittee or companyporation companystituted by the Government of Goa, Daman and Diu Provided that the Chairman, Director or Member of any of the aforesaid companymittees or bodies or companyporations is number entitled to any remuneration other than companypensatory allowance. An explanation was also added to clause 9 . The same reads thus Explanation For the purpose of the aforesaid entries - Compensatory allowance means any sum of money payable to the holder of an office by way of daily allowance such allowance number exceeding the amount of daily allowance to which a member of the Legislative Assembly is entitled under the Goa, Daman and Diu Salary, Allowances and Pension of the Members of the Legislative Assembly Act, 1964 2 of 1965 , any companyveyance allowance, house rent allowance or traveling allowance for the purpose of enabling him to recoup any expenditure incurred by him in performing the functions of that office. The proviso makes it abundantly clear that the companypensatory allowance would only mean any expense which is incurred by the holder of the office in discharge of his official function to be companypensated by claim and if any other sum of money or other perquisites are made to the holder of office as companypensatory allowance, he would number get the benefit of clause 9 of the Schedule which was added. In the instant cases, the appellants were certainly in receipt of variety of perquisites which cannot be said to be given to them by way of companypensatory allowance. The mobile phone, telephone and the chauffeur driven car were all permitted to be used for unlimited purposes and they were number restricted to official purposes. Moreover, Rule 7 of the 1967 Rules specifically states that the Chairman, Vice-Chairman and other members of the Board shall be paid such salary or other honorarium and allowances from the funds of the Boards as the Government may from time to time fix. The appellants were entitled to get salary or honorarium by virtue of this rule. The mere fact that they had number received or they had number opted to get this salary or honorarium is immaterial. By virtue of the said rule, they are entitled to get salary or honorarium and that, by itself, would show that they were number entitled to get the benefit of the Schedule of the 1982 Act. The respondents in these two cases had raised a companytention that the 1982 Act itself was number applicable to the State of Goa, Daman and Diu as the same was number adopted by the State Legislature. The respondents had companytended that in the absence of adoption under Section 57 of the Goa State Re-organisation Act, 1987, the 1982 Act had numberapplication to the State of Goa, Daman and Diu. This plea was accepted by the learned Single Judge of the High Court. The respondents in these cases companytended that the finding of the learned Single Judge in this regard is number companyrect. In this case, the appellants herein companytended that Article 239A of the Constitution provided for creation of local legislatures or companyncil of ministers or both for certain Union Territories and the Parliament enacted the Government Territories Act, 1963. As per Section 3 of the Act of 1963, the Legislative Assembly of the Union Territory of Goa, Daman and Diu came into existence and sub- Section 1 of Section 14 of the Act of 1963 provided that a person shall be disqualified for being chosen as, and for being a Member of the Legislative Assembly of the Union Territory, inter alia, if he holds any office of profit under the Government of India, or the Government of any State, or the Government of the Union Territory, other than the office declared by law made by Parliament, or the Legislative Assembly of the Union Territory, number to disqualify its holder, i.e., the Legislative Assembly of the Union Territory of Goa, Daman and Diu. The Act passed in 1982 provided for removal of certain disqualifications for being chosen and for being a member of the Legislative Assembly of Goa, Daman and Diu. That Act was passed under Section 14 1 of the Act of 1963. The respondent had companytended that when Union Territory of Goa, Daman and Diu became a State, the Assembly of the State of Goa had number passed any law number had adopted the 1982 Act which was in force. The appellants companytended that as per Section 66 of the Goa, Daman and Diu Reorganization Act, 1987, the Act of 1982 companytinues to be in force but this plea was rejected by the learned Single Judge. We have examined the claim of the appellants in the light of the 1982 Act and hold that the appellants are number entitled to get the protection of the Act.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1945 of 1974. From the Judgment and decree dated 9.10.1973 of the Madras High Court in L.P.A. No. 78 of 1969. Padmanabhan, K.M.M. Khan and Vineet Kumar for the Appellant. Vepa Sarathy and Ramesh N. Keshwani for the Respondents. The Judgment of the Court was delivered by FATHIMA BEEVI, J. 1. This is an appeal by special leave against the judgment and decree dated the 9th October, 1973 of the High Court of Judicature at Madras in Letters Patent Appeal No. 78 of 1969. The appellant was the first defendant in O.S. No. 53 of 1959 in the Munsiffs Court Chingleput. The respondents are the legal representatives of Munisubba Reddi, the plaintiff therein. That suit was instituted on 11.2.1959 for recovery of possession of the suit property with mesne profits. The suit was decreed by the trial companyrt on 7.11.1960. The first appellate companyrt by the revised judgment dated the 5th August, 1961 in A.S. No. 21 of 1961 reversed the decree. The second appeal preferred by the plaintiff was dismissed by the High Court in S.A. No. 426 of 1965 on 31.1.1969. However, the Division Bench of the High Court allowed the Letters Patent Appeal filed by the plaintiff. It is necessary to set out few facts for the purpose of this appeal. The suit property having an extent of 13 acres and 42-1/2 cents originally belonged to one Dasu Reddi. He companyveyed possession of the land to one Varada Reddi under an oral agreement of sale on 10.7.1946. A deed of sale was drawn up on 17.7.1947, but Dasu Reddi died before it companyld be registered. Thereafter his sons Rajaram Reddi and Ramalinga Reddi executed Ex. A. 1 sale deed in favour of Munisubba Reddi on 6.10.1949. Varada Reddi, aggrieved, instituted O.S. No. 78 of 1949 against Munisubba Reddi and his vendors for specific performance of the companytract for sale, asserting his possession in pursuance of the agreement dated 10.7.1946. Varada Reddi died pending the suit. Muthukrishna Reddi was impleaded as his legal representative. That suit was decreed in his favour on 13.12.1952. The decree became final, but was number executed. In the present suit the plaintiff Munisubba Reddi alleged that he was put in possession of the land by Muthukrishna Reddi after the said decree under an arrangement evidenced by Ex. A.4 dated 12.12.1955 and while in possession, the defendants Achal Reddi and others trespassed into the property in 1956. Achal Reddi companytested the suit denying the petitioners title and the alleged trespass and claiming that Muthukrishna Reddy had orally transferred his rights and companyveyed possession to him for valuable companysideration. The trial companyrt in granting the petitioner a decree for possession found that the plaintiffs title under the sale deed of 1949 as against his vendors was made perfect and title did number pass to Muthukrishna Reddi as he did number choose to execute the decree and the petitioner was in possession within 12 years prior to the suit. It was found that the first defendant Achal Reddi has numbertitle to the suit property and that he is number in possession of the same. The first appellate companyrt by the judgment dated 5.8.1964 rendered after the remand companysidered the question of title as well as possession and held If Muthukrishna Reddi had enforced the decree in O.S. No. 76/1949 for specific performance against the plaintiff and his vendors, that would have put an end to the title of the plaintiff under Ex. A. 1. As already stated, the decree was allowed to lapse leaving the title of the plaintiff under Ex. A. 1 unaffected. The title that vested in the plaintiff on 6.6.1949 companytinued to remain with him thereafter for the above reasons. As against this, the defence companytention that the 1st defendant under an oral agreement, became the owner of the properties cannot stand. My finding, therefore, is that the plaintiff has title to the properties under Ex. A.1. The learned Judge, however, found that the plaintiff was number in possession of the suit land in 1955 and the plaintiff having neither proved possession number dispossession at anytime was number entitled to a decree. In S.A. No. 426 of 1965 these companycurrent findings of the trial companyrt as well as the first appellate companyrt on the question of plaintiffs title had number been challenged. The only question raised therein and companysidered by the learned Single Judge was whether the plaintiff was in possession within 12 years of suit in order to enable him to recover possession and whether for that purpose he companyld say that his vendors and before him, Dasu Reddi were in possession of the property and companysequently he companyld add that period to the period before 6.6.1949, the date of sale in his favour. The learned Judge was of the view that if Varada Reddis possession was permissive, then the possession should be deemed to have companytinued with the original owner Dasu Reddi and thereafter his sons, but if on the other hand the possession of Varada Reddi was adverse even as against the original owner, the plaintiff would number be entitled to add the period before 6.6.1949 and such possession companyld number enure to his benefit. After referring to the decision in Annamalai Chettiar and Another v. Muthiah Chettiar and Another, ILR 19651 Madras 254 the learned Judge held that Varada Reddis possession was adverse to Dasu Reddi from 10.7.1946, on the assumption that a sale had been effected orally even on 10.7.1946 leaving only execution of the sale deed to be done later. This assumption of the learned Single Judge was found to be faulty by the Division Bench. The Division Bench numbericed that all that the plaintiff has to prove is that he or his predecessor-in-title was in possession at any time between 11.2.1947 and 11.2.1959. If between 11.2.1947 and 17.7.1947 the possession of Varada Reddi was possession held on behalf of Dasu Reddi then it companyld be held that the plaintiffs predecessor-in-title had been in possession within 12 years prior to the suit. The Division Bench held that the transaction of 10.7.1946 was in fact and in law only an oral agreement for sale and that on the assumption that it was an oral sale the learned Single Judge failed to apply the legal position as enunciated in Annamalai v. Muthiah, Supra . They observed that possession as held by Varada Reddi subsequent to 10.7.1946 and before he instituted the suit in 1949 for specific performance was in the companysciousness that it was only possession on behalf of the real owner. Even if the execution of an infructuous sale deed on 17.7.1947 by Dasu Reddi in favour of Varada Reddi is assumed to have altered the companyplexion of events in any manner, the possession by Varada Reddi from 1.7.1946 upto 17.7.1947 at least was clearly possession held on behalf of Dasu Reddi, the predecessor-in-title of the plaintiff. If the plaintiffs predecessor had been in possession of the suit property on 17.7.1947, that is to say within 12 years prior to the institution of the present suit on 11.2.1959, there can be little doubt that the plaintiff must succeed on the question of possession as well. In this view the judgment of the learned Single Judge was reversed. There is numbercontroversy that the plaintiff has to establish subsisting title by proving possession within 12 years prior to the suit when the plaintiff alleged dispossession while in possession of the suit property. The first appellate companyrt as well as the second appellate companyrt proceeded on the basis that the plaintiff is number entitled to succeed as such possession has number been proved. The companycurrent findings that the plaintiff had title inspite of the decree for specific performance obtained against him, when that decree had number been executed are number assailed by the appellant in the High Court. The appellant cannot, therefore, urge before us on the basis of the findings in the earlier suit to which he was number a party that Ex. A. 1 sale deed is one without companysideration and does number companyfer valid title on the plaintiff. The sole question that has been companysidered by the High Court is that of subsisting title. We have to companysider whether the question of law as to the character of the possession Varada Reddi had between 10.7.1946 and 17.7.1947 is adverse or only permissive. In the case of an agreement of sale the party who obtains possession, acknowledges title of the vendor even though the agreement of sale may be invalid. It is an acknowledgement and recognition of the title of the vendor which excludes the theory of adverse possession. The well-settled rule of law is that if person is in actual possession and has a right to possession under a title involving a due recognition of the owners title his possession will number be regarded as adverse in law, even though he claims under another title having regard to the well recognised policy of law that possession is never companysidered adverse if it is referable to a lawful title. The purchaser who got toto possession under an executory companytract of sale in a permissible character cannot be heard to companytend that his possession was adverse. In the companyception of adverse possession there is an essential and basic difference between a case in which the other party is put in possession of property by an outright transfer, both parties stipulating for a total divestiture of all the rights of the transferor in the property, and in case in which, there is a mere executory agreement of transfer both parties companytemplating a deed of transfer to be executed at a later point of time. In the latter case the principle of estoppel applies estopping the transferee from companytending that his possession, while the companytract remained executory in stage, was in his own right and adversely against the transferor. Adverse possession implies that it companymenced in wrong and is maintained against right. When the companymencement and companytinuance of possession is legal and proper, referable to a companytract, it cannot be adverse. In the case of an executory companytract of sale where the transferee is put in possession of the property in pursuance of the agreement of sale and where the parties companytemplate the execution of a regular registered sale deed the animus of the purchaser throughout is that he is in possession of the property belonging to the vendor and that the formers title has to be perfected by a duly executed registered deed of sale under which the vendor has to pass on and companyvey his title. The purchasers possession in such cases is of a derivative character and in clear recognition of and in acknowledgement of the title of the vendor. The position is different in the case where in pursuance Of an oral transfer or a deed of transfer number registered the owner of a property transfers the property and puts the transferee in possession with the clear animus and on the distinct understanding that from that time onwards he shall have numberright of title to the property. In such a case the owner of the property does number retain any vestige of right in regard to the property and his mental attitude towards the property is that it has ceased to belong to him altogether. The transferee after getting into possession retains the same with the clean animus that he has become the absolute owner of the property and in companyplete negation of any right or title of the transferor, his enjoyment is solely as owner in his right and number derivatively or in recognition of the title of any person. So far as the vendor is companycerned both in mind and actual companyduct, there is a total divestiture of all his right, title and interest in the property. This applies only in a case where there is a clear manifestation of the intention of the owner to divest himself of the right over the property. On the other hand in the case of an executory companytract the possession of the transferee until the date of registration of the companyveyance is permissive or derivative and in law is deemed to be on behalf of the owner himself. The companyrectness of the decision in Annamalai v. Muthiah supra cannot, therefore, be doubted. The parties are companycluded by the finding of the Division Bench that the transaction of 10.7.1946 between Dasu Reddi and Varada Reddi is only an agreement for sale and number an oral sale of the property. If that be so the possession of Varada Reddi in pursuance of such an agreement of sale and in the expectation that there would be a companyplete divestiture of all the rights of the owner in his favour on execution of a regular sale deed, until the execution of the sale deed, was only possession on behalf of Dasu Reddi. Such possession having been within a period of 12 years prior to the present suit, the plaintiff succeeds in having established the possession of his predecessor-ininterest within 12 years prior to the date of the suit. The plaintiff is, therefore, entitled to a decree in his favour.
O R D E R CRIMINAL APPEAL NO. 1150 OF 2007 Arising out of SLP Criminal No. 3303 of 2006 We have heard learned companynsel for the parties. Leave granted. This appeal is directed against the order passed by the learned Single Judge of the High Court of Delhi in Criminal Revision Petition No. 42 of 2000 dated August 8, 2005. The learned Single Judge dismissed the Criminal Revision Petition filed by the appellant herein by the order which reads thus In spite of numberice, numberody appears for the petitioner today. Crl. Rev. P. 42/2000 is accordingly dismissed in default for number-prosecution. The matter relates to administration of criminal justice. As held by this Court, a criminal matter cannot be dismissed for default and it must be decided on merits. Only on that ground the appeal deserves to be allowed. There is, however, an additional reason also. Earlier when the petition was dismissed, the aggrieved appellant approached this Court and in Criminal Appeal No. 309 of 2002 a two-Judge Bench of this Court by an order dated February 22, 2002 allowed the appeal, set aside the order of the High Court and observed that the matter should be decided by the High Court after application of mind and by passing a reasoned order. Unfortunately, in the impugned order, there are numberreasons and the merits have number been companysidered at all. Hence, the appeal is allowed. The order of the High Court is set aside and the matter is remitted back to the High Court. The High Court will decide the matter on merits.
Ranganath Misra, J. This appeal by special leave is by the tenant defendant No. 1 -a firm and its managing partner and is directed against a decree of eviction granted by the trial companyrt and upheld in appeal by the District Judge and the High Court. Eviction from the premises was asked for on three grounds 1 personal necessity, 2 sub-letting to respondent No. 2 and 3 material damage caused to the building by the sub-tenant. All the companyrts have negatived the plea of personal necessity as also sub-letting as valid grounds for eviction but the suit has been decreed on the third ground. It has been found as a fact that in a companypromise between the plaintiff and the defendant No. 1, the tenant was given liberty to induct a sub-tenant at its discretion. Defendant No. 2 was inducted by the tenant in terms of the authority in the companypromise terms but as the High Court has clearly found there was numberprivity between the landlord and the sub-tenant. The companyrts below had relied upon the tenants suit against the sub-tenant on the ground of damage to the premises on various scores and the plaint of that suit Ext. 3 was utilised as companytaining an admission in that regard We agree with the High Court that in the facts of this case, particularly when there was numberprivity between the landlord and the subtenant, the obligations of the tenant as a lessee of the premises both in law as also on the basis of companytract to maintain the premises in good companydition and to deliver the premises back to the landlord at the end of the tenancy in good state remained unaffected.
CRIMINAL APPELLATE JURISDICTION Petitions for Special Leave to Appeal Criminal Nos. 1090-91 of 1989. From the Judgment and Order dated 8.5.1989 of the Delhi High Court in Misc. Appln. No. 106/89 107/1989. R. Lalit, Tushar Shah and B .V. Desai for the Petitioners. S. Arora and Satish Agarwala for the Respondent. The Judgment of the Court was delivered by JAGANNATHA SHETTY, J- The petitioners were released on bail by the Enquiry Magistrate under proviso a to Section 167 2 of the Code of Criminal Procedure. After filing of the charge-sheet the High Court ordered their rearrest by cancelling the bail. The order of the High Court is number under challenge. I do number find any merit in these petitions. But before dismissing, I wish, however, to draw attention to some aspects of the question raised. The facts On 23 March, 1988 the petitioners were arrested in Bombay by officers of the Narcotic Control Bureau. They were ordered to be produced before the companypetent Magistrate at New Delhi. They were accordingly produced before the Additional Chief Metropolitan Magistrate, New Delhi. On 29 March, 1988 they were remanded to jail custody till 12 April, 1988. The remand order was subsequently renewed from time to time. On 10 May, 1988 the petitioners moved the Chief Metropolitan Magistrate for bail. When that petition was pending companysideration, the prosecution submitted charge-sheet. The charge-sheet was filed on 23 June, 1988 for offences under Sections 21, 23 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. On July 22, 1988 the petitioners filed an application for bail under Section 167 2 Cr. P.C. on the ground that the charge-sheet was filed after the expiry of 90 days of their arrest. On 29 July, 1988 learned Magistrate enlarged them on bail on their furnishing self bonds in the sum of Rupees two lakhs each with two surety bonds in the sum of Rs. 1 lakh each. The efforts of the prosecution to have the bail cancelled companyld number succeed before learned Magistrate. So they moved the Delhi High Court under Section 439 2 read with section 482 of the Cr.P.C. In that application, the nature of the offence companymitted, the part played by the accused, the gravity of the offence etc., were all set out. 1t was also stated that since two of the accused were earlier absconding, the investigation in the case companyld number be companypleted within the time frame. The High Court by following the decision of this Court in Raghubir Singh v. State of Bihar, 1986 3 SCR 802 and after companysidering the material on record cancelled the bail order. The High Court said In the present cases, numberdoubt an order was passed granting bail because the charge sheet was number filed within the statutory period of 90 days but it was filed on 92 days. There is numberdoubt that the charge against the respondents is very serious in nature because they are alleged to have entered into a companyspiracy to export heroin out of India. The minimum punishment prescribed in such offence is a sentence of 10 years rigorous imprisonment, and a fine of Rupees one lakh. I am, therefore, of the view that the authority referred above is fully applicable to the facts of the present case. Respondents are further alleged to have procured services of one H.S. Gala and a lady carrier Manjula Ben who carried 3 Kg. heroin from India to USA in November 1987. Therefore it was on the basis of the statements made by those persons in USA that the respondents were arrested in India. I am, therefore, of the view that it is a fit case where order of bail should be cancelled. The question is whether the discretion exercised by the High Court is legally sustainable? Whether the accused have a special right to remain on bail merely because they have been enlarged under proviso a to Section 167 2 of the Code? It is number disputed and indeed cannot be disputed that when an accused is granted bail, whether under proviso a to Section 167 2 or under the general provisions of Chapter XXXIII, the only method by which the bail may be cancelled is to proceed under Section 437 5 or Section 439 2 . That is because the person released on bail under the proviso to Section 167 2 shall be deemed to be so released under the provisions of Chapter XXXIII of the Code. Sub-section 5 of Section 437 provides Any Court which has released a person on bail under sub-section 1 or sub-section 2 may, if it companysiders it necessary so to do, direct that such person be arrested and companymit him to custody. Sub-section 2 of Section 439 provides A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and companymit him to custody. Under sub-section 5 of Section 437, the Court if it companysiders it necessary, direct that the person on bail be arrested and companymitted to custody. The bail may be cancelled by the Court if it companyes to the companyclusion that there are sufficient grounds that the accused has companymitted a numberbailable offence and that it is necessary that he should be arrested and companymitted to custody. This is what this Court observed in Raghubir Singh v. State of Bihar, 1986 3 SCR It was said at 826 Where bail has been granted under the proviso to section 167 2 for the default of the prosecution in number companypleting the investigation in sixty days, after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that the accused has companymitted a number-bailable offence and that it is necessary to arrest him and companymit him to custody. In the last mentioned case, one would expect very strong grounds indeed. And said The order for release on bail was number an order on merits but was what one may call an order-on-default, and order that companyld be rectified for special reasons after the defect was cured. An order for release on bail under proviso a to Section 167 2 may appropriately be termed as an order-ondefault. Indeed, it is a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period. The right to bail under Section 167 2 proviso a thereto is absolute. It is a legislative companymand and number Courts discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the accused in custody should he released on bail. But at that stage, merits of the case are number to be examined. Not at all. In fact, the Magistrate has numberpower to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and companymunicate the same to the accused to -furnish the requisite bail bonds. The accused cannot, therefore, claim any special right to remain on bail. If the investigation reveals that the accused has companymitted a serious offence and charge-sheet is filed, the bail granted under proviso a to Section 167 2 companyld be cancelled.
GOPALA GOWDA, J. Leave granted. This criminal appeal by special leave is directed against the impugned judgment and order dated 08.12.2010 in Crl. Misc. No. 5777 of 2009 passed by the High Court of Judicature at Patna whereby it allowed the said criminal miscellaneous petition filed by the respondent number.2 to 9 herein, by setting aside the companynizance order dated 10.11.2008 passed by the learned Addl. Chief Judicial Magistrate, Rosera, Bihar in Singhia Police Case No.37/2008 and quashed the criminal prosecution. Brief facts of the case are stated hereunder to appreciate the rival legal companytentions urged on behalf of the parties The case of the prosecution is that on 29.03.2008, the informant-Mukhtar went to the house of his relative at village-Navdega and stayed there. On 30.03.2008, at about 12.00 numbern, his uncle Md. Hasim informed him on telephone that his wifes companydition was serious and she was being taken to Singhia for treatment. Mukhtar was asked to reach Singhia. It is alleged by the informant that on reaching Singhia, he neither found his wife number his uncle. On enquiry from his uncle, he was informed about the death of his wife. Thereafter, he reached his house and saw the dead body of his wife. His uncle disclosed him that his wife-Tamanna Khatoon since deceased had gone to maize field wherein she was found lying with her mouth and numbere tied with her dupatta. She was spotted by one Hira Sada PW-2 , who was returning with her daughter. Upon hearing the numberse made by the deceased she raised alarm and upon hearing the same informants uncle-Md. Hasim along with others reached the spot and took Tamanna Khatoon to Singhia for treatment. She died on the way to Singhia. On 30.03.2008 FIR was lodged by Mukhtar, husband of the deceased against Md. Raju and Md. Halim Mangnuappellant number2 herein for the offences punishable under Sections 302 and 120B read with Section 34 of the Indian Penal Code for short IPC . During investigation, many witnesses deposed before the Judicial Magistrate, Rosera under Section 164 of the CrPC wherein it has been alleged that Mukhtar, husband of the deceased has killed his wife. On 30.09.2008 charge sheet number111/2008 in respect of FIR No. 37/2008 was filed in the Court of Chief Judicial Magistrate CJM , Rosera by the police against Md. Hasim, Md. Noor Hasan, Md. Safique and Jhothi Sada. After filing of the charge sheet, Mukhtar started threatening the witnesses. With a view to threaten the appellant number1 on 17.10.2008, he reached his house with pistol and dagger. The appellant number1 raised hue and cry and upon hearing the same, companyvillagers caught Mukhtar with arms, after a chase. FIR No. 104/08 was registered against him for the offence punishable under Sections 25 and 26 of the Arms Act, 1959 at Singhia Police Station. On 31.10.2008, a supplementary charge sheet number126/2008, in respect of FIR No. 37/2008 was filed before the learned CJM by the police against Md. Mukhtar Munna, Md. Nazre Alam and Md. Farukh. The learned CJM after companysidering the material placed before him vide order dated 10.11.2008.took companynizance under Sections 302 and 120B read with Section 34 of the IPC against Mukhtar and other accused-persons. Aggrieved by the companynizance order passed by the learned CJM in PS Case No. 37/2008, respondent number. 2 to 9 approached the High Court of Judicature at Patna by preferring Crl. Misc. No. 5777/2009 under Section 482 of Cr.PC for quashing the order of learned CJM dated 10.11.2008. The High Court by its order dated 08.12.2010 allowed the said petition by setting aside the companynizance order passed by the learned CJM and also quashed the criminal prosecution. Aggrieved by the said order, the appellants herein, who are interested private parties, have filed this appeal urging various grounds. Mr. Neeraj Shekhar, the learned companynsel for the appellants companytended that the High Court has failed to appreciate that the FIR and the charge sheet establish a prima-facie case against the respondent number. 2-9. He submitted that when the allegations made against the accused person show a primafacie case, criminal proceedings ought number to have been quashed by the High Court in exercise of its power under Section 482 of Cr.PC. It was further companytended that the High Court has erred in setting aside the companynizance order passed by the learned CJM as the extraordinary or inherent powers do number companyfer an arbitrary jurisdiction to act according to whim or caprice. He further submitted that the power of quashing criminal proceedings is to be exercised sparingly and with circumspection and that too in rarest of rare cases. It was further companytended by the learned companynsel that at the stage of taking companynizance of the offence it would number be proper, simply on the basis of material placed before the companyrt by investigating agency, to determine whether a companyviction is sustainable or number. The High Court has erred in appreciating the same by quashing the companynizance order passed by the learned CJM. He further submitted that the inherent power to quash the proceedings can be exercised only in a case where the material placed before the companyrt does number disclose any offence or the allegations made therein are found frivolous, vexatious or oppressive. At this stage there should number be any meticulous analysis of the case, before the trial, to find out whether the case would end in companyviction or acquittal. It was further companytended that in the instant case the charge sheet and FIR clearly establish the involvement and active participation of the accusedpersons which the High Court has failed to appreciate. It was further submitted by the learned companynsel that the appellants have locus standi to maintain this appeal for the reason that the appellants have companynection with matter at hand as appellant number1 was threatened by the informant-Mukhtar and appellant number2 was falsely implicated by the informant-Mukhtar in the case of murder of his wife. Both the appellants are aggrieved by the impugned order passed by the High Court setting aside the companynizance order passed by the Trial Court. In support of the aforesaid he placed reliance upon the Constitution Bench decision of this Court in the case of P.S.R Sadhanantham v. Arunanchalam1. He further placed reliance upon the decisions of this Court in Ramakant Rai v. Madan Rai Ors2, Esher Singh v. State of A.P.3, Ramakant Verma v. State of U.P.4 and Ashish Chadha v. Asha Kumari Ors5. Per companytra, Mr. Shivam Singh, the learned companynsel appearing on behalf of the respondents companytended that the answering respondents have number been named in the FIR. The FIR in this case is based on the statement of Mukhtar against two persons, namely Md. Raju and Md. Halim for the murder of his wife and it was registered under Sections 302 and 120B read with Section 34 of the IPC. He further submitted that on 11.04.2008, the informant-Mukhtar filed a protest petition before the learned CJM, Rosera. In the said protest petition it was brought to the numberice of the companyrt that originally he had given a written companyplaint to the police about the murder of his wife against five persons, namely Md. Raju, Md. Halim Mangnu, Khalid Gulab, Abu Quaiyum and Md. Amid Hussain for offences under Sections 376, 302 read with Section 34 of the IPC. However, the local police in companylusion with the accused-persons dropped the names of three accused persons and also dropped charge under Section 376 of the IPC against them knowingly and intentionally. The companyrse of investigation was diverted in wrong direction to falsely implicate the respondent number. 2-9. It was further companytended by the learned companynsel that the instant case is a unique case as the accused-persons are made prosecution witnesses and apart from them another set of tutored witnesses have been introduced in the case, who are number eye witnesses to the incident and have in their deposition under Section 164 of the CrPC, before the Judicial Magistrate deposed that the informant-husband might have killed his wife. The High Court has rightly taken a very serious view of the whole matter and after proper scrutiny of the documents and material placed on record has companye to an appropriate finding that the case against the respondent number.2-9 is merely based on suspicion and therefore, it has rightly quashed the proceedings against them. He further submitted that after the incident Manjoor Alam father of the deceased in his statement before the police did number blame Mukhtar husband of the deceased for the murder of his daughter. As far as other respondents are companycerned, apart from the informant, they all are strangers to the matter and have been falsely implicated in this case by the local police at the behest of the real accused persons. It was further submitted by the learned companynsel that the father and mother of the deceased have given their statement on a stamp paper before the Notary Public that their daughter was having a companydial matrimonial life with her husband and she was number being tortured by her husband or his family members in companynection with any dowry demand. By placing reliance upon the decision of this Court in J.K. International State Govt. of Delhi and Ors6 and HDFC Bank Ltd. Anr. v. Nagpur District Security Guard Board Anr.7, it was further submitted by the learned companynsel that the appellants have failed to disclose their bonafide companynection with the cause of action, to be precise with the victim and thus, have numberlocus standi to maintain this appeal. Therefore, this appeal deserves to be dismissed on this score. While companycluding his companytentions he submitted that the order passed by the High Court is a well reasoned order and the same does number suffer from any ambiguity. The decision of the High Court is also justified in the light of decision of this Court in the case of State of Haryana v. Bhajan Lal8. Therefore, numberinterference of this Court is required in exercise of its appellate jurisdiction. After companysidering the rival legal companytentions urged on behalf of both the parties, following issues would arise for our companysideration Whether this appeal is maintainable by the appellants on the ground of the locus standi? Whether the High Court, in the instant case, has exceeded its jurisdiction while exercising its inherent power under Section 482 of the CrPC? What order? Answer to Point No.1 The term locus standi is a latin term, the general meaning of which is place of standing. The Concise Oxford English Dictionary, 10th Edn., at page 834, defines the term locus standi as the right or capacity to bring an action or to appear in a companyrt. The traditional view of locus standi has been that the person who is aggrieved or affected has the standing before the companyrt, i.e., to say he only has a right to move the companyrt for seeking justice. Later, this Court, with justice-oriented approach, relaxed the strict rule with regard to locus standi, allowing any person from the society number related to the cause of action to approach the companyrt seeking justice for those who companyld number approach themselves. Now turning our attention towards the criminal trial, which is companyducted, largely, by following the procedure laid down in the CrPC. Since, offence is companysidered to be a wrong companymitted against the society, the prosecution against the accused person is launched by the State. It is the duty of the State to get the culprit booked for the offence companymitted by him. The focal point, here, is that if the State fails in this regard and the party having bonafide companynection with the cause of action, who is aggrieved by the order of the companyrt cannot be left at the mercy of the State and without any option to approach the appellate companyrt for seeking justice. In this regard, the Constitution Bench of this Court in the case of P.S.R. Sadhananthams case supra has elaborately dealt with the aforesaid fact situation. The relevant paras 13, 14 and 25 of which read thus It is true that the strictest vigilance over abuse of the process of the companyrt, especially at the expensively exalted level of the Supreme Court, should be maintained and ordinarily meddlesome bystanders should number be granted visa. It is also true that in the criminal jurisdiction this strictness applies a fortiori since an adverse verdict from this Court may result in irretrievable injury to life or liberty. Having said this, we must emphasise that we are living in times when many societal pollutants create new problems of unredressed grievance when the State becomes the sole repository for initiation of criminal action. Sometimes, pachydermic indifference of bureaucratic officials, at other times politicisation of higher functionaries may result in refusal to take a case to this Court under Article 136 even though the justice of the lis may well justify it. While the criminal law should number be used as a weapon in personal vendettas between private individuals, as Lord Shawcross once wrote, in the absence of an independent prosecution authority easily accessible to every citizen, a wider companynotation of the expression standing is necessary for Article 136 to further its mission. There are jurisdictions in which private individuals number the State alone may it statute criminal proceedings. The Law Reforms Commission Australia in its Discussion Paper No. 4 on Access to Courts I Standing Public Interest Suits wrote The general rule, at the present time, is that anyone may companymence proceedings and prosecute in the Magistrate companyrt. The argument for retention of that right arises at either end of the spectrum the great cases and the frequent petty cases. The great cases are those touching Government itself a Watergate or a Poulson. However independent they may legally be any public official, police or prosecuting authority, must be subject to some government supervision and be dependent on Government funds its officers will inevitably have personal links with government. They will be part of the establishment. There may be cases where a decision number to prosecute a case having political ramifications will be seen, rightly or wrongly, as politically motivated. Accepting the possibility of occasional abuse the Commission sees merit in retaining some right of a citizen to ventilate such a matter in the companyrts. Even the English System, as pointed by the Discussion Paper permits a private citizen to file an indictment. In our view the narrow limits set in vintage English Law, into the companycept of person aggrieved and standing needs liberalisation in our democratic situation. In Dabholkar case this Court imparted such a wider meaning. The American Supreme Court relaxed the restrictive attitude towards standing in the famous case of Baker v. Carr. Lord Denning, in the numberable case of the Attorney-General of the Gambia v. Pierra Sarr Njie, spoke thus the words person aggrieved are of wide import and should number be subjected to a restrictive interpretation. They do number include, of companyrse, a mere busybody who is interfering in things which do number companycern him Prof. S.A. de Smith takes the same view All developed legal systems have had to face the problem of adjusting companyflicts between two aspects of the public interest the desirability of encouraging individual citizens to participate actively in the enforcement of the law, and the undesirability of encouraging the professional litigant and the meddlesome interloper to invoke the jurisdiction of the companyrts in matters that do number companycern him. Prof. H.W.R. Wade strikes a similar numbere In other words, certiorari is number companyfined by a narrow companyception of locus standi. It companytains an element of the actio popularis. This is because it looks beyond the personal rights of the applicant it is designed to keep the machinery of justice in proper working order by preventing inferior tribunals and public authorities from abusing their powers. In Dabholkar case, one of us wrote in his separate opinion The possible apprehension that widening legal standing with a public companynotation may unloose a flood of litigation which may overwhelm the Judges is misplaced because public resort to companyrt to suppress public mischief is a tribute to the justice system. This view is echoed by the Australian Law Reforms Commission. XX XX XX In India also, the criminal law envisages the State as a prosecutor. Under the Code of Criminal Procedure, the machinery of the State is set in motion on information received by the police or on a companyplaint filed by a private person before a Magistrate. If the case proceeds to trial and the accused is acquitted, the right to appeal against the acquittal is closely circumscribed. Under the Code of Criminal Procedure, 1898, the State was entitled to appeal to the High Court, and the companyplainant companyld do so only if granted special leave to appeal by the High Court. The right of appeal was number given to other interested persons. Under the Code of Criminal Procedure 1973, the right of appeal vested in the States has number been made subject to leave being granted to the State by the High Court. The companyplainant companytinues to be subject to the prerequisite companydition that he must obtain special leave to appeal. The fetters so imposed on the right to appeal are prompted by the reluctance to expose a person, who has been acquitted by a companypetent companyrt of a criminal charge, to the anxiety and tension of a further examination of the case, even though it is held by a superior companyrt. The Law Commission of India gave anxious thought to this matter, and while numbering that the Code recognised a few exceptions by way of permitting a person aggrieved to initiate proceedings in certain cases and permitting the companyplainant to appeal against an acquittal with special leave of the High Court, expressed itself against the general desirability to encourage appeals against acquittal. It referred to the companymon law jurisprudence obtaining in England and other companyntries where a limited right of appeal against acquittal was vested in the State and where the emphasis rested on the need to decide a point of law of general importance in the interests of the general administration and proper development of the criminal law. But simultaneously the Law Commission also numbered that if the right to appeal against acquittal was retained and extended to a companyplainant the law should logically companyer also cases number instituted on companyplaint. It observed Extreme cases of manifest injustice, where the Government fails to act, and the party aggrieved has a strong feeling that the matter requires further companysideration, should number, in our view, be left to the mercy of the Government. To inspire and maintain companyfidence in the administration of justice, the limited right of appeal with leave given to a private party should be retained, and should embrace cases initiated on private companyplaint or otherwise at the instance of an aggrieved person. However, when the Criminal Procedure Code, 1973 was enacted the statute, as we have seen, companyfined the right to appeal, in the case of private parties to a companyplainant. This is, as it were, a material indication of the policy of the law. emphasis supplied by this Court Further, this Court in the case of Ramakant Rais case supra has held thus A doubt has been raised about the companypetence of a private party as distinguished from the State, to invoke the jurisdiction of this Court under Article 136 of the Constitution of India, 1950 in short the Constitution against a judgment of acquittal by the High Court. We do number see any substance in the doubt. The appellate power vested in this Court under Article 136 of the Constitution is number to be companyfused with the ordinary appellate power exercised by appellate companyrts and Appellate Tribunals under specific statutes. It is a plenary power, exercisable outside the purview of ordinary law to meet the pressing demands of justice see Durga Shankar Mehta v. Raghuraj Singh . Article 136 of the Constitution neither companyfers on anyone the right to invoke the jurisdiction of this Court number inhibits anyone from invoking the Courts jurisdiction. The power is vested in this Court but the right to invoke the Courts jurisdiction is vested in numberone. The exercise of the power of this Court is number circumscribed by any limitation as to who may invoke it. Where a judgment of acquittal by the High Court has led to a serious miscarriage of justice, this Court cannot refrain from doing its duty and abstain from interfering on the ground that a private party and number the State has invoked the Courts jurisdiction. We do number have slightest doubt that we can entertain appeals against judgments of acquittal by the High Court at the instance of interested private parties also. The circumstance that the Criminal Procedure Code, 1973 in short the Code does number provide for an appeal to the High Court against an order of acquittal by a subordinate companyrt, at the instance of a private party, has numberrelevance to the question of the power of this Court under Article 136. We may mention that in Mohan Lal v. Ajit Singh this Court interfered with a judgment of acquittal by the High Court at the instance of a private party. An apprehension was expressed that if appeals against judgments of acquittal at the instance of private parties are permitted there may be a flood of appeals. We do number share the apprehension. Appeals under Article 136 of the Constitution are entertained by special leave granted by this Court, whether it is the State or a private party that invokes the jurisdiction of this Court, and special leave is number granted as a matter of companyrse but only for good and sufficient reasons, on well-established practice of this Court. In Esher Singhs case supra , it has been held by this Court that Article 136 of the Constitution of India neither companyfers on anyone the right to invoke the jurisdiction of this Court number inhibits anyone from invoking it. The relevant para 29 of the case reads thus A doubt has been raised in many cases about the companypetence of a private party as distinguished from the State, to invoke the jurisdiction of this Court under Article 136 of the Constitution against a judgment of acquittal by the High Court. We do number see any substance in the doubt. The appellate power vested in this Court under Article 136 of the Constitution is number to be companyfused with ordinary appellate power exercised by appellate companyrts and appellate tribunals under specific statutes. It is a plenary power exercisable outside the purview of ordinary law to meet the pressing demands of justice. See Durga Shankar Mehta v. Raghuraj Singh. Article 136 of the Constitution neither companyfers on anyone the right to invoke the jurisdiction of this Court number inhibits anyone from invoking the Courts jurisdiction. The power is vested in this Court but the right to invoke the Courts jurisdiction is vested in numberone. The exercise of the power of this Court is number circumscribed by any limitation as to who may invoke it. Where a judgment of acquittal by the High Court has led to a serious miscarriage of justice, this Court cannot refrain from doing its duty and abstain from interfering on the ground that a private party and number the State has invoked the Courts jurisdiction. We do number have the slightest doubt that we can entertain appeals against judgments of acquittal by the High Court at the instance of interested private parties also. The circumstance that the Code does number provide for an appeal to the High Court against an order of acquittal by a subordinate companyrt, at the instance of a private party, has numberrelevance to the question of the power of this Court under Article 136. We may mention that in Mohan Lal v. Ajit Singh this Court interfered with a judgment of acquittal by the High Court at the instance of a private party. An apprehension was expressed that if appeals against judgments of acquittal at the instance of private parties are permitted, there may be a flood of appeals. We do number share the apprehension. Appeals under Article 136 of the Constitution are entertained by special leave granted by this Court, whether it is the State or a private party that invokes the jurisdiction of this Court, and special leave is number granted as a matter of companyrse but only for good and sufficient reasons, well established by the practice of this Court. emphasis supplied by this Court Further, in Rama Kant Vermas case supra this Court has reiterated the aforesaid view that the appellate power of this Court under Article 136 of the Constitution of India is number just an ordinary appellate power exercised by appellate companyrts and appellate tribunals under specific statutes. It is a plenary power which can be exercised outside the purview of ordinary law to meet the ends of justice. The relevant para 16 of the case reads thus In Ramakant Rai v. Madan Rai it was inter alia observed as follows SCC p. 402, para 12 A doubt has been raised about the companypetence of a private party as distinguished from the State, to invoke the jurisdiction of this Court under Article 136 of the Constitution of India, 1950 in short the Constitution against a judgment of acquittal by the High Court. We do number see any substance in the doubt. The appellate power vested in this Court under Article 136 of the Constitution is number to be companyfused with the ordinary appellate power exercised by appellate companyrts and Appellate Tribunals under specific statutes. It is a plenary power, exercisable outside the purview of ordinary law to meet the pressing demands of justice see Durga Shankar Mehta v. Thakur Raghuraj Singh . Article 136 of the Constitution neither companyfers on anyone the right to invoke the jurisdiction of this Court number inhibits anyone from invoking the Courts jurisdiction. The power is vested in this Court but the right to invoke the Courts jurisdiction is vested in numberone. The exercise of the power of this Court is number circumscribed by any limitation as to who may invoke it. Where a judgment of acquittal by the High Court has led to a serious miscarriage of justice, this Court cannot refrain from doing its duty and abstain from interfering on the ground that a private party and number the State has invoked the Courts jurisdiction. We do number have slightest doubt that we can entertain appeals against judgments of acquittal by the High Court at the instance of interested private parties also. The circumstance that the Criminal Procedure Code, 1973 in short the Code does number provide for an appeal to the High Court against an order of acquittal by a subordinate companyrt, at the instance of a private party, has numberrelevance to the question of the power of this Court under Article 136. We may mention that in Mohan Lal v. Ajit Singh this Court interfered with a judgment of acquittal by the High Court at the instance of a private party. An apprehension was expressed that if appeals against judgments of acquittal at the instance of private parties are permitted there may be a flood of appeals. We do number share the apprehension. Appeals under Article 136 of the Constitution are entertained by special leave granted by this Court, whether it is the State or a private party that invokes the jurisdiction of this Court, and special leave is number granted as a matter of companyrse but only for good and sufficient reasons, on well-established practice of this Court. emphasis supplied by this Court After companysidering the case law relied upon by the learned companynsel for the appellants as well as the respondents, in the light of the material placed on record, we are of the view that the appellants have locus standi to maintain this appeal. From the material placed on record, it is clear that the appellants have precise companynection with the matter at hand and thus, have locus to maintain this appeal. The learned companynsel for the appellants has rightly placed reliance upon the Constitution Bench judgment of this Court, namely, P.S.R Sadhanantham supra and other decisions of this Court in Ramakant Rai, Esher Singh, Ramakant Verma supra . Further, it is pertinent here to observe that it may number be possible to strictly enumerate as to who all will have locus to maintain an appeal before this Court invoking Article 136 of the Constitution of India, it depends upon the factual matrix of each case, as each case has its unique set of facts. It is clear from the aforementioned case law that the Court should be liberal in allowing any third party, having bonafide companynection with the matter, to maintain the appeal with a view to advance substantial justice. However, this power of allowing a third party to maintain an appeal should be exercised with due care and caution. Persons, unconnected with the matter under companysideration or having personal grievance against the accused should be checked. A strict vigilance is required to be maintained in this regard. Answer to Point No.2 A careful reading of the material placed on record reveals that the learned CJM took companynizance of the offences alleged against the accusedpersons after a perusal of case diary, chargesheet and other material placed before the companyrt. The companynizance was taken, as a prima facie case was made out against the accused-persons. It is well settled that at the stage of taking companynizance, the companyrt should number get into the merits of the case made out by the police, in the chargesheet filed by them, with a view to calculate the success rate of prosecution in that particular case. At this stage, the companyrts duty is limited to the extent of finding out whether from the material placed before it, offence alleged therein against the accused is made out or number with a view to proceed further with the case. The proposition of law relating to Section 482 of the CrPC has been elaborately dealt with by this Court in Bhajan Lals case supra . The relevant paras 102 and 103 of which read thus In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power companyld be exercised either to prevent abuse of the process of any companyrt or otherwise to secure the ends of justice, though it may number be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 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. 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 Section 156 1 of the Code except under an order of a Magistrate within the purview of Section 155 2 of the Code. 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. 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 Section 155 2 of the Code. 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. 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. 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. We also give a numbere of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases that the companyrt will number be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the companyplaint and that the extraordinary or inherent powers do number companyfer an arbitrary jurisdiction on the companyrt to act according to its whim or caprice. Further, this Court in the case of Rajiv Thapar v. Madan Lal Kapoor9 has laid down certain parameters to be followed by the High Court while exercising its inherent power under Section 482 of the CrPC, in the following manner The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of companymittal, or even at the stage of framing of charges. These are all stages before the companymencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far-reaching companysequences inasmuch as it would negate the prosecutions companyplainants case without allowing the prosecution companyplainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the companyclusion that his their defence is based on sound, reasonable, and indubitable facts the material produced is such as would rule out and displace the assertions companytained in the charges levelled against the accused and the material produced is such as would clearly reject and overrule the veracity of the allegations companytained in the accusations levelled by the prosecution companyplainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution companyplainant, without the necessity of recording any evidence. For this the material relied upon by the defence should number have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and companydemn the actual basis of the accusations as false. In such a situation, the judicial companyscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the companyrt, and secure the ends of justice. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC 30.1. Step one whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality? 30.2. Step two whether the material relied upon by the accused would rule out the assertions companytained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions companytained in the companyplaint i.e. the material is such as would persuade a reasonable person to dismiss and companydemn the factual basis of the accusations as false? 30.3. Step three whether the material relied upon by the accused has number been refuted by the prosecution companyplainant and or the material is such that it cannot be justifiably refuted by the prosecution companyplainant? 30.4. Step four whether proceeding with the trial would result in an abuse of process of the companyrt, and would number serve the ends of justice? 30.5. If the answer to all the steps is in the affirmative, the judicial companyscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious companyrt time, which would otherwise be wasted in holding such a trial as well as proceedings arising therefrom specially when it is clear that the same would number companyclude in the companyviction of the accused. emphasis supplied by this Court After companysidering the rival legal companytentions urged by both the parties, case law referred to supra and the material placed on record, we are of the view that the High Court has exceeded its jurisdiction under Section 482 of the CrPC. It has erred in quashing the companynizance order passed by the learned CJM without appreciating the material placed before it in companyrect perspective. The High Court has ignored certain important facts, namely, that on 17.10.2008, the appellant number1 was allegedly threatened by the accused-Mukhtar for which FIR No. 104/08 was registered against him for offences punishable under Sections 25 and 26 of the Arms Act, 1959. Further, there are statements of various witnesses made under Section 164 of the CrPC, before a judicial magistrate, to the effect that the deceased has been murdered by numbere other than her husband-Mukhtar. The evidence companylected by the I.O. by recording the statement of prosecution witnesses, filed alongwith the chargesheet was duly companysidered by the learned CJM before taking companynizance and therefore, the same should number have been interfered with by the High Court in exercise of its inherent power under Section 482 of the CrPC.
Abhay Manohar Sapre, J. This appeal is filed by the Complainant against the final judgment and order dated 04.05.2007 passed by the High Court of Punjab Haryana at Chandigarh in Criminal Revision No. 174 of 1999 by which the High Court dismissed the criminal Signature Not Verified Digitally signed by revision filed by the appellant herein. ASHA SUNDRIYAL Date 2018.01.25 162227 IST Reason In order to dispose of the appeal, few relevant facts need mention hereinbelow. Respondent Nos. 1 to 5 five accused persons were prosecuted under Sections 307/325/148/149 of the Indian Penal Code,1908 hereinafter referred to as IPC for causing injuries to two persons namely, Om Prakash and Ravinder Kumar, with Hockey at around 7.15 p.m. on 29.07.1988. The prosecution was initiated against the respondents on the basis of FIR No. 128 dated 03.08.1988 lodged by the appellant herein, who is the son of Om Prakash since dead . The Trial Court, by order dated 14.11.1998 acquitted all the five accused persons respondent Nos. 1 to 5 herein . The State, being aggrieved by the order of acquitting the respondents, filed criminal appeal being Criminal Appeal No.494-DB of 1999 before the High Court of Punjab Haryana whereas the companyplainant filed a Criminal Revision No. 174 of 1999 against the order of the acquittal. The High Court, by the impugned judgment, allowed the States appeal in part and companyvicted the four accused persons namely, Gian Chand, Krishan Kumar, Lachhman Dass and Bhagwan Dass respondent Nos. 1, 2, 3 and 5 under Section 325 read with Section 34 IPC and upheld the acquittal of one accused person, namely, Suresh Kumar - respondent No. 4 by giving him benefit of doubt. The operative part of judgment of the High Court reads as under In the above circumstances, acquittal of the respondents cannot be justified. However, having regard to the submission made on behalf of Suresh Kumar, we companysider it safe to give him benefit of doubt and acquit him but we do number find any valid ground to uphold acquittal of other accused. Accordingly we companyvict accused Gian Chand, Krishan Kumar, Lachhman Dass and Bhagwan Dass under sections 325/34 IPC but having regard to long lapse of time since the date of occurrence, we award sentence for the period of imprisonment already undergone by them, apart from awarding companypensation of Rs.50,000/- to be shared equally by PW3 Subhash Chander and PW4 Virender Kumar. It has been numbericed that Om Parkash, injured has already died. The four companyvicted accused will pay Rs.12,500/- each. . The companyplainant, being aggrieved by the judgment of the High Court, has filed this appeal by way of special leave in this Court. The State has number filed any appeal. Therefore, the short question that arises for companysideration in this appeal is whether the High Court having companyvicted the four accused persons under Section 325 read with Section 34 IPC was justified in imposing the sentence that was already undergone by them and by imposing a fine of Rs.50,000/- to be paid equally by the four companyvicted accused persons. Having heard the learned companynsel for the parties and on perusal of the record of the case, we find numbermerit in the appeal. In our opinion, the High Court was right and hence the impugned judgment does number call for any interference. In the first place, the High Court companyvicted four accused persons under Section 325 read with section 34 IPC and number under Section 307 IPC. In other words, in the opinion of the High Court, numbercase was made out under Section 307 IPC, but it was essentially a case of a grievous hurt falling under Section 325 IPC. This finding of the High Court, in our opinion, is based on proper appreciation of entire prosecution evidence and we do number find any reason to disturb it for companyvicting the respondents under Section 325 IPC instead of Section 307 IPC. So far as the awarding of sentence for an offence punishable under Section 325 read with Section 34 IPC is companycerned, the High Court was of the opinion that the respondents have already undergone some reasonable length of jail sentence as under-trials and the same, in our opinion, appears to be sufficient. It is more so because, in addition, a fine of Rs.50,000/- was also awarded. This would meet the ends of justice. Having examined this issue, we find numberreason to interfere on this issue too for the following reasons. Firstly, the incident in question occurred as far back as in 1988, whereas we are number in 2018. In between this period, 30 years have elapsed. Secondly, in the meantime, one injured also expired. Thirdly, the injured were duly companypensated with the amount of fine of Rs.50,000/-.
R. Shah, J. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 09.10.2018 passed by the High Court of Judicature at Bombay in Criminal Appeal No. 723 of 2013, by which the High Court has dismissed the said appeal preferred by Signature Not Verified the appellant hereinoriginal accused and has companyfirmed the Digitally signed by ARJUN BISHT Date 2019.12.13 165734 IST Reason judgment and order of companyviction passed by the learned Trial Court companyvicting the accused for the offence punishable under Section 302 of the IPC, the original accused has preferred the present appeal. At the outset, it is required to be numbered that the only submission made by the learned companynsel appearing on behalf of the appellantoriginal accused is that the death of the deceased can be said to be a culpable homicide number amounting to murder and the case would fall under Exception 4 to Section 300 IPC and therefore the case would be under Section 304 Part II IPC. Even this Court has issued the numberice in the present appeal limited to the nature of offence. Shri Sushil Karanjkar, learned companynsel appearing on behalf of the appellantoriginal accused has vehemently submitted that, as such, there was numberintention on the part of the accused to kill his wife. It is submitted that at the time when the unfortunate incident had taken place, the accused was under the influence of liquor and therefore his companydition was such that he companyld number understand what he was doing. It is further submitted by the learned companynsel appearing on behalf of the appellantoriginal accused that even thereafter the appellant tried to save the deceased and poured water to save her and, while doing so, even the appellantoriginal accused also sustained the injuries. Therefore, relying upon the decision of this Court in the case of Kalu Ram v. State of Rajasthan 2000 10 SCC 324, it is prayed to alter the companyviction from Section 302 IPC to Section 304 Part II IPC. On the other hand, Shri Nishant Ramakantrao Katneshwarkar, learned companynsel appearing on behalf of the State, while opposing the present appeal, has vehemently submitted that the decision of this Court in Kalu Ram supra shall number be applicable to the facts of the case on hand. It is submitted that in that case before this Court, it was found that the accused was in a highly inebriated companydition, which is number the case here. It is submitted that, in the present case, as such, after abusing and assaulting the deceased, the accused poured kerosene on her person and set her ablaze. It is submitted that when the deceased was trying to run out of the house to save herself, at which time, the accused came from behind and threw matchstick on her person and set her ablaze. It is submitted that at the relevant time, the deceased was carrying pregnancy of 18 to 20 weeks. It is submitted that, as per the statement dying declaration of the deceased, after the deceased came out of the room making numberse, the accused poured the water on her. It is submitted that the act of pouring kerosene, though on spur of moment, was followed by lighting a matchstick and throwing it on the deceased and thereby setting her ablaze are intimately companynected with each other and resulted in causing death of the deceased. It is submitted that the act of the accused falls under Section 300 fourthly and therefore the death of the deceased can be said to be culpable homicide amounting to murder. It is submitted that every person of average intelligence would have the knowledge that the pouring of kerosene and setting a person on fire is so imminently dangerous that in all probability such an act would cause injuries causing death. It is submitted therefore that Section 300 fourthly shall be attracted and number Exception 4 to Section 300 IPC as submitted on behalf of the accused. 4.1 It is further submitted by Shri Katneshwarkar, learned companynsel for the State that merely because subsequently the accused might have poured the water, that is number suffice to alter the companyviction from Section 302 IPC to Section 304 Part II IPC. It is submitted that the subsequent act of pouring the water by the accused on the deceased appears to be an attempt to cloak his guilt since he did it only when the deceased came out for help and made the numberse. It is submitted therefore that it cannot be companysidered as a mitigating factor. 4.2 Making the above submissions and relying upon the decisions of this Court in the case of Santosh v. State of Maharashtra 2015 7 SCC 641 and in the case of Bhagwan Tukaram Dange v. State of Maharasthra 2014 4 SCC 270, it is prayed to dismiss the present appeal. Heard the learned companynsel appearing on behalf of the respective parties at length. As observed hereinabove, in the present appeal, the sole question which is posed for companysideration of this Court is, whether, in the facts and circumstances of the case, the case would fall under Exception 4 to Section 300 IPC or Section 300 fourthly and, therefore, whether Section 302 IPC shall be attracted or the case may fall under Section 304 Part II IPC? 5.1 It is the case on behalf of the appellantoriginal accused that as at the time when the incident took place, the accused was drunk and under the influence of liquor and he had numberintention to cause death of the deceasedwife and that even subsequently the accused tried to save the deceased and poured the water on her and therefore the case would fall under Exception 4 to Section 300 IPC and, therefore the companyviction is to be altered from Section 302 of the IPC to Section 304 Part II IPC, having relied upon the decision of this Court in the case of Kalu Ram supra . However, it is required to be numbered that, in the present case, the appellantaccused poured the kerosene on the deceased when she was trying to run out of the house to save herself and was trying to open the latch of the door of the house, the accused threw the matchstick on her person and set her ablaze. Nothing is on record that the accused was in a highly inebriated stage. Even looking to the companyversation which took place between the deceased and the accused, so stated in the dying declaration given by the deceased, it can safely be said that the accused was in very much companyscious companydition when the incident took place. He was very much in the senses and was companyscious about what he was doing. Therefore, the accused was fully companyscious of the fact that if kerosene is poured and match stick is lit and put on the body, a person might die due to burns. Therefore, the case would fall under Section 300 fourthly and Exception 4 to Section 300 IPC shall number be applicable. 5.2 An identical question came to be companysidered by this Court in the case of Santosh supra . In the said decision, this Court also had the occasion to companysider the inebriation due to companysumption of alcohol and when it may be said to be a mitigating factor. In the said decision, this Court also companysidered the submission made on behalf of the accused that as he attempted to extinguish the fire by pouring the water on the deceased and himself getting burn injuries in that process and, therefore, the case would fall under Exception 4 to Section 300 IPC. In the similar facts and circumstances of the case, this Court in the case of Santosh supra has observed in paragraphs 10 to 15 as under The question falling for companysideration is whether the act of the accused pouring water would mitigate the offence of murder. Where the intention to kill is present, the act amounts to murder, where such an intention is absent, the act amounts to culpable homicide number amounting to murder. To determine whether the offender had the intention or number, each case must be decided on its facts and circumstances. From the facts and circumstances of the instant case, it is evident that i there was a homicide, namely, the death of Saraswatibai ii the deceased was set ablaze by the appellant and this act was number accidental or unintentional and iii the postmortem certificate revealed that the deceased died due to shock and septicaemia caused by 60 burn injuries. When the accused poured kerosene on the deceased from the kerosene lamp and also threw the lighted matchstick on the deceased to set her on fire, he must have intended to cause the death of the deceased. As seen from the evidence of PW 5, panch witness, in the house of the appellant, kerosene lamp was prepared in an empty liquor bottle. Whether the kerosene was poured from the kerosene lamp or from the can is of numberconsequence. When there is clear evidence as to the act of the accused to set the deceased on fire, absence of premeditation will number reduce the offence of murder to culpable homicide number amounting to murder. Likewise, pouring of water will number mitigate the gravity of the offence. After attending to natures call, the deceased returned to the house a little late. The accused questioned her as to why she was companying late and he also suspected her fidelity. There was numberprovocation for the accused to pour kerosene and set her on fire. The act of pouring kerosene, though on the spur of the moment, the same was followed by lighting a matchstick and throwing it on the deceased and thereby setting her ablaze. Both the acts are intimately companynected with each other and resulted in causing the death of the deceased and the act of the accused is punishable for murder. Even assuming that the accused had numberintention to cause the death of the deceased, the act of the accused falls under clause Fourthly of Section 300 IPC that is the act of causing injury so imminently dangerous where it will in all probability cause death. Any person of average intelligence would have the knowledge that pouring of kerosene and setting her on fire by throwing a lighted matchstick is so imminently dangerous that in all probability such an act would cause injuries causing death. Insofar as the companyduct of the accused in attempting to extinguish fire, placing reliance upon the judgment of this Court in Kalu Ram case 2000 10 SCC 324 2000 SCC Cri 86 , it was companytended that such companyduct of the accused would bring down the offence from murder to culpable homicide number amounting to murder. In Kalu Ram case 2000 10 SCC 324 2000 SCC Cri 86 , the accused was having two wives. The accused in a highly inebriated companydition asked his wife to part with her ornaments so that he companyld purchase more liquor, which led to an altercation when the wife refused to do as demanded. Infuriated by the fact that his wife had failed to companycede to his demands, the accused poured kerosene on her and gave her a matchbox to set herself on fire. On her failure to light the matchstick, the accused set her ablaze. But when he realised that the fire was flaring up, he threw water on her person in a desperate bid to save her. In such facts and circumstances, this Court held that the accused would number have intended to inflict the injuries which she sustained on account of the act of the accused and the companyviction was altered from Section 302 IPC to Section 304 Part II IPC. The decision in Kalu Ram case 2000 10 SCC 324 2000 SCC Cri 86 cannot be applied in the instant case. The element of inebriation ought to be taken into companysideration as it companysiderably alters the power of thinking. In the instant case, the accused was in his companyplete senses, knowing fully well the companysequences of his act. The subsequent act of pouring water by the accused on the deceased also appears to be an attempt to cloak his guilt since he did it only when the deceased screamed for help. Therefore, it cannot be companysidered as a mitigating factor. An act undertaken by a person in full awareness, knowing its companysequences cannot be treated on a par with an act companymitted by a person in a highly inebriated companydition where his faculty of reason becomes blurred. In the case of Bhagwan supra , while companysidering the defence of the accused at the time of the pouring the kerosene and litting a matchstick, he was under the influence of liquor and intoxication and, therefore, the intoxication can be said to be a mitigating circumstance and therefore the case would fall under Exception 4 to Section 300 IPC, this Court negatived the said defence by observing in paragraphs 12 and 13 as under Intoxication, as such, is number a defence to a criminal charge. At times, it can be companysidered to be a mitigating circumstance if the accused is number a habitual drinker, otherwise, it has to be companysidered as an aggravating circumstance. The question, as to whether the drunkenness is a defence while determining sentence, came up for companysideration before this Court in Bablu v. State of Rajasthan 2006 13 SCC 116 2007 2 SCC Cri 590 , wherein this Court held SCC p. 129, para 12 that the defence of drunkenness can be availed of only when intoxication produces such a companydition as the accused loses the requisite intention for the offence and onus of proof about reason of intoxication, due to which the accused had become incapable of having particular knowledge in forming the particular intention, is on the accused. Examining Section 85 IPC, this Court held that the evidence of drunkenness which renders the accused incapable of forming the specific intent essential to companystitute the crime should be taken into account with the other facts proved in order to determine whether or number he had the intention. The Court held that merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does number rebut the presumption that a man intends the natural companysequences of his acts. This Court, in that case, rejected the plea of drunkenness after numbericing that the crime companymitted was a brutal and diabolic act. We find it difficult to accept the companytention of the companynsel that since the appellantaccused was under the influence of liquor, the offence will fall under Section 304 Part I or Section 304 Part II. A1 was presumed to know the companysequences of his action, of having lit the matchstick and set fire on the saree of the deceased, after A2 sprinkled kerosene on her body. In our view, the accused was companyrectly chargesheeted under Section 302 IPC and we find numberreason to interfere with the companyviction and sentence awarded by the trial companyrt and affirmed by the High Court.
KURIAN, J. The appellant before this Court is aggrieved by order passed by the High Court wherein companycurrent findings on facts with regard to the bonafide requirements of the appellant have been upset holding that the companyrt can re-appreciate the evidence to test whether the findings of the Rent Controller are companyrect. We are afraid, the High Court has misdirected itself and exceeded its jurisdiction. In revisional jurisdiction, the Court is expected to see only whether the findings are illegal or perverse in the sense that a reasonably informed person will number enter such a finding. For proper guidance, it would be appropriate to refer to a recent Signature Not Verified Constitution Bench judgment in Hindustan Petroleum Digitally signed by ANITA MALHOTRA Date 2017.08.01 112849 IST Reason Corporation Ltd. v. Dilbahar Singh1, at paragraphs-30, 31 and We have already numbered in the earlier part of the judgment that although there is some difference in the language employed by the three Rent Control Acts under companysideration which provide for revisional jurisdiction but, in our view, the revisional power of the High Court under these Acts is substantially similar and broadly such power has the same scope save and except the power to invoke revisional jurisdiction suo motu unless so provided expressly. None of these statutes companyfer on revisional authority the power as wide as that of the appellate companyrt or appellate authority despite such power being wider than that provided in Section 115 of the Code of Civil Procedure. The provision under companysideration does number permit the High Court to invoke the revisional jurisdiction as the cloak of an appeal in disguise. Revision does number lie under these provisions to bring the orders of the trial companyrt Rent Controller and the appellate companyrt appellate authority for rehearing of the issues raised in the original proceedings. We are in full agreement with the view expressed in Sri Raja Lakshmi Dyeing Works that where both expressions appeal and revision are employed in a statute, obviously, the expression revision is meant to companyvey the idea of a much narrower jurisdiction than that companyveyed by the expression appeal. The use of two expressions appeal and revision when used in one statute companyferring appellate power and revisional power, we think, is number without purpose and significance. Ordinarily, appellate jurisdiction involves a rehearing while it is number so in the case of revisional jurisdiction when the same statute provides the remedy by way of an appeal and so also of a revision. If that were so, the revisional power would become companyxtensive with that of the trial companyrt or the subordinate tribunal which is never the case. The 2014 9 SCC 78 classic statement in Dattonpan that revisional power under the Rent Control Act may number be as narrow as the revisional power under Section 115 of the Code but, at the same time, it is number wide enough to make the High Court a second companyrt of first appeal, companymends to us and we approve the same. We are of the view that in the garb of revisional jurisdiction under the above three rent companytrol statutes, the High Court is number companyferred a status of second companyrt of first appeal and the High Court should number enlarge the scope of revisional jurisdiction to that extent. xxx xxx xxx xxx We hold, as we must, that numbere of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the first appellate companyrt first appellate authority because on reappreciation of the evidence, its view is different from the companyrt authority below. The companysideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is companyfined to find out that finding of facts recorded by the companyrt authority below is according to law and does number suffer from any error of law. A finding of fact recorded by companyrt authority below, if perverse or has been arrived at without companysideration of the material evidence or such finding is based on numberevidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to companyrection because it is number treated as a finding according to law.
NON-REPORTABLE CIVIL APPEAL NO.8491 OF 2001 HARJIT SINGH BEDI,J. This appeal by special leave arises out of the following facts. The Syndicate Bank, the appellant herein, sanctioned various credit limits to the respondent No.1 companypany including an overdraft limit of Rs.1,00,000/- and working capital term loan of Rs.1,00,000/- on certain prescribed companyditions. These loans were granted after cancellation of the earlier limits with a view to nurse respondent No.1 which was a sick unit. In order to secure the advance, the Managing Director of respondent No.1, that is respondent No.2 and the other Directors executed several documents as securities and respondent No.2 also mortgaged his property to the Bank as a companylateral security. As the respondent No.1 defaulted in the repayment of the loan, the Bank filed a suit for recovery S.No.732/1987 in the Trichur Civil Court seeking a decree for Rs.1,19,832.63 with interest 12.5 per annum in the Term Loan Account and Rs.2,09,120.75 in the Overdraft Account with interest 16 per annum companypounded quarterly. The following issues were framed in the suit What is the companyrect amount that is due to the Plaintiff? Whether the defendants are entitled to the benefit of the direction given by the Reserve Bank of India on sick units? What is the companyrect rate of interest? Reliefs and companyts. The trial companyrt observed that the Bank had number been harsh or arbitrary in dealing with the defendants and that it appeared that the defendants were number prepared to repay the loan despite the agreements that had been executed. It was also observed that the defendants were number entitled to the benefit of any scheme framed for the rehabilitation of sick units which had been formulated by the Reserve Bank of India. The suit was accordingly decreed on 9th April 1990 and the defendants were given a years time for payment. No appeal was filed against this judgment with the result that it attained finality. An application for execution of the decree EP No. 819/1991 was filed by the Bank on 20th December 1991 and while the matter was still pending, the judgmentdebtors the defendants in the above suit filed civil suit No.1340/1993 for injunction seeking an order prohibiting the execution of the decree rendered in O.S. No.732/1987 alleging that it was a nullity. The Bank companytested the suit which was ultimately dismissed by Judgment Order dated 1st March 1996 and as numberappeal was filed thereagainst, this decision too attained finality. In April 1993, the judgment-debtors also filed a Pauper Petition No. 19/1993 in the Sub-Court, Trichur claiming damages of about Rs.30/- lacs from the Bank with 18 and 100 ex-gratia payment on several grounds. This suit was dismissed for number-prosecution on 15th November 1995 and an application for its restoration was also dismissed on 6th June 1997. As numberfurther proceedings were taken by the judgment-debtors, these orders attained finality as well. It appears that while this spate of litigation was companytinuing, the judgment-debtor filed various objections during the year 1994-97 in E.P.No.819/1991 alleging that the decree was number executable, and amongst others, two objection petitions being A.No. 847/1997 and 1197/1997 were filed claming the protection and benefits available under section 22 1 of the Sick Industrial Companies Special Provisions Act, 1985 hereinafter called SICA and under section 18FH of the Industries Development and Regulation Act, 1951 hereinafter called the Regulation Act praying that the execution proceedings be kept in abeyance till such time the proceedings initiated by the Government of Kerala for the revival of the unit were going on. It appears that while the objections were pending, the mortgaged property of judgment-debtor No.2 was sold in auction by the executing companyrt for a sum of Rs.3.50 lacs which was deposited in Court and later released to the Bank and the sale was also companyfirmed and possession of the property handed over to Antony the auction purchaser. Vide order dated 21st July 1998 the execution application Nos.847/1997 and 1197/97 were dismissed. This order was challenged by the respondent Nos.1 and 2, the original defendants, by way of CRP No.2315/1998 alleging that the execution proceedings ought to have been stayed pending the decision of the proceedings under section 18 FH of the Regulation Act and section 22 of SICA. The respondent No.1 Company also filed a writ petition on 7th April 2000 under Article 226 of the Constitution of India No. O.P.11862 of 2000 in the Kerala High Court against the Government of Kerala, the Kerala Financial Corporation, the Syndicate Bank and Antony the auction purchaser alleging that the judgmentdebtors unit had been rendered sick on account of the arbitrary actions of the Bank and the Kerala Financial Corporation and that the proceedings in O.S. 732/1987 were without jurisdiction and, therefore, null and void and companysequently the decree in EP 819/1991 too was number enforceable. The Civil Revision and the Civil Writ Petition were heard together and both were allowed vide order dated 11th April, 2001 with the High Court observing that though the benefits of section 18FH of the Regulation Act and section 22 of the SICA were number available to the judgment-debtor but they were entitled to succeed on other issues and companycluded that The petitioner has filed CRP 2315/98 challenging the companymon order passed by the execution companyrt in E.A.847/97 and A.1197/97 in E.P.819/91 in O.S.732/87. The petitioner was the judgment debtor in S.732/87, a suit instituted by the present 3rd respondent bank for realization of the entire arrears due from the petitioner. The decree holder filed E.P.819/91 and the property and the residential building belonging to the Managing Director of the companypany placed as security was sold in auction for an amount of Rs.3.5 lakhs. The petition filed by the petitioner for setting aside the sale was also dismissed. Later the petitioner filed E.A.847/97 and A.1197/97 u s 18FH of the IDR Act sec.22 of the SICA and Sec.151 CPC for annulling the companyrt sale and also for staying further execution proceedings. Both the petitions were dismissed by the execution companyrt. I have already found that sec.22 of SICA or sec.18FH of the IDR Act have any application in the present case and as such the above order dismissing E.A.847/97 and E.A.1197/97 has only to be upheld in the ordinary companyrse. As the suit was instituted and proceeded in companylusion with the KFC and as both the above financial institutions have agreed before the 1st respondent for the revival of the industry granting companycessions and packages as evident from ext.P.24 , I think it just and proper to set aside the sale of the property of the Managing Director of the companypany in execution of the decree in S.732/87. In fact the KFC was strangulating the industry from one side where as the Bank was doing the same thing on the Managing Director of the companypany from the other side which was shocking to judicial companyscience. In the above circumstances for the ends of justice this companyrt is companystrained to interfere and to undo the injustice caused to the petitioner and to save both the industry and the Managing Director of the industry by setting aside the order of taking over the industry and the companyrt sale of the property. The entire amount deposited by the 4th respondent towards price of the auctioned property with 5 of the above amount and interest at 6 from the date of deposit till return shall be paid by the 3rd respondent bank to the 4th respondent. The bank also will have to companysider the grant of interest holiday for the period during which the industry had been under the possession of the KFC in pursuance to the take over. Hence for the proper administration of justice, I think it proper to set aside the companyrt sale and to allow R.P.2315/98. As the order dated 11th April 2001 was a companyprehensive one, taking within its ambit the Civil Revision as well as the Writ Petition, two LPAs, one by the Bank and the other by the judgment-debtor, were filed and are pending in the Kerala High Court against the order in the writ petition whereas the present appeal has been filed by the Bank against the order in the Civil Revision. Mr. A.B.Dial, the learned senior companynsel for the appellant has pointed out that the High Court had overstepped its jurisdiction as after giving a positive finding that the respondent was number entitled to any relief under section 22 of the SICA or under section 18 FH of the Regulation Act, it had virtually set aside all the effective orders of the Civil Courts which had been made in favour of the appellant Bank and had attained finality. It has further been pleaded that the further direction of the High Court as to the entitlement of the respondent to the benefit of the re-settlement schemes for revival was number the issue before it as the executing companyrt or the High Court companyld number go beyond the decree itself and hold that the suit which had led the decree was bad having been filed in companylusion with one or the other party. Respondent No.2 appearing in person has, however, argued that the High Court had proceeded on the basis that the respondent had been gravely wronged by the Bank and the Kerala Financial Corporation and has also submitted a large number of documents in support of this submission. He has also pointed out that the State Government had taken steps towards the revival of his unit and as such, there was numberjustification in interfering with the order of the High Court. Before we go to the issues raised, we reproduce here the final directions of the High Court The order of the 2nd respondent KFC taking possession of the industrial unit New Look Rubbers P Ltd. petitioner companypany is set aside and the KFC is directed to surrender possession of the industrial unit to the petitioner forthwith. The 2nd respondent KFC shall grant interest holiday for the period from the date of taking possession of the industry till it is handed over to the petitioner. The companyrt sale of the property of the Managing Director of the petitioner companypany in pursuance to the decree in OS 732/87 of Sub-Court, Trichur, shall stand set aside and the3rd respondent shall return the entire sale amount with a sum equal to 5 of the above amount and with 6 interest on the sale amount from the date of deposit till the date of return to the 4th respondent. We are of the opinion that the High Court has clearly overstepped its jurisdiction. The facts of the case show that the appellant had filed civil suit O.S.No.732/1987 against the respondent for recovery of the sums advanced as loan plus interest. This suit was decreed on 9th April 1990 with the positive finding that there was numberharsh or arbitrary behaviour in the proceedings against the respondent. Admittedly, numberappeal was filed against the judgment dated 9th April 1990 and it attained finality. The appellant Bank thereafter filed P.No.819/1991 for the realization of the decretal amount on which the respondent filed O.S. No.1430/93 praying that the appellant Bank be injuncted from executing the decree in S.No.732/1997. This suit too was dismissed on 1st April 1996. Another Pauper Petition No. 19/1997 was filed by the respondent claiming damages from the Bank and this too was dismissed. Admittedly all these matters have attained finality. Two sets of objections in execution petition, E.A. No.847/97 and E.A.No.1197/97 had been filed with regard to the applicability of section 22 1 of SICA and section 18 FH of the Regulation Act and in the meanwhile, the property mortgaged was sold in execution of the decree. The aforesaid objection petitions were dismissed on 21st July 1998. It is against the order in E.A. No.1197/1997 that the present revision was filed.
CIVIL APPELLATE JURISDICTlON Special Leave Petition Civil No. 9425 of 1984. From the Judgment and Order dated 1.11.83 of the Kerala High Court in A.S. No. 10 of 1979. K. Pillai for the petitioners. The Order of the Court was delivered by TULZAPURKAR, J. Pension and gratuity are numberlonger any bounty to be distributed by the Government to its employees on their retirement but have become, under the decisions of this Court, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment . Usually the delay occurs by reason of number-production of the L.P.C. Last Pay Certificate and the N.L.C. No Liability Certificate from the companycerned Departments but both these documents pertain to matters, records whereof would be with the companycerned Government Departments. Since the date of retirement of every Government servant is very much known in advance we fail to appreciate why the process of companylecting the requisite information and issuance of these two documents should number be companypleted atleast a week before the date of retirement so that the payment of gratuity amount companyld be made to the Government servant on the date he retires or on the following day and pension at the expiry of the following month. The necessity for prompt payment of the retirement dues to a Government servant immediately after his retirement cannot be over-emphasised and it would number be unreasonable to diriect that the liability to pay penal interest on these dues at the current market rate should companymence at the expiry of two months from the date of retirement. The instant case is a glaring instance of such culpable delay in the settlement of pension and gratuity claims due to the respondent who retired on 19.5.1973. His pension and gratuity were ultimately paid to him on 14.8.1975, i e., more than two years and 3 months after his retirement and hence after serving lawyers numberice he filed a suit mainly to recover interest by way of liquidated damages for delayed payment. The appellants put the blame on the respondent for delayed payment on the ground that he had number produced the requisite L.P.C. last pay certificate from the Treasury Office under Rule 186 of the Treasury Code. But on a plain reading of Rule 1 86, the High Court held-and in our view rightly-that a duty was cast on the treasury Officer to grant to every retiring Government servant the last pay certificate which in this case had been delayed by the companycerned officer for which neither any justification number explanation had been given The claim for interest was, therefore, rightly, decreed in respondents favour. Unfortunately such claim for interest that was allowed in respondents favour by the District Court and companyfirmed by the High Court was at the rate of 6 per cent per annum though interest at 12 per cent had been claimed by the respondent in his suit. However, since the respondent acquiesced in his claim being decreed at 6 per cent by number preferring any cross objections in the High Court it companyld number be proper for us to enhance the rate to 12 per cent per annum which we were otherwise inclined to grant. We are also of the view that the State Government is being rightly saddled with a liability for the culpable neglect in the discharge of his duty by the District Treasury Officer who delayed the issuance of the L.P.C. but since the companycerned officer had number been impleaded as a party defendant to the suit the Court is unable to hold him liable for the decretal amount. It will, however, be for the State Government to companysider whether the erring official should or should number be directed to companypensate the Government the loss sustained by it by his culpable lapses.
NAGESWARA RAO, J. According to the FIR registered pursuant to the statement of PW-9 Pawan Kumar, the brother of the deceased, his sister Usha was married to the Appellant- Sham Lal in December, 1990. The Appellant demanded dowry of Rs.1,00,000/- after two months of the marriage. Rs.50,000/- was arranged and given to the Appellant. The deceased - Usha companyplained to her family members that her mother-in-law- Ganga Devi, her husband- Sham Lal and her brothers-in-law- Krishan Lal and Ved Prakash were harassing her for number bringing sufficient dowry. A female child was born to the deceased- Usha and gifts were given by her family in accordance with custom. Appellant and his family were number satisfied with the gifts. The informant received information on 28th September, 1992 that his sister and her child had died due to burn injuries. They rushed to the house of the Appellant and found Usha and her daughter dead. Inquest was companyducted by the investigating officer and the bodies were sent for post-mortem. A site plan of the occurrence scene was prepared and a can companytaining three liters of kerosene oil, burnt hair and pieces of burnt cloth were seized by the Sub-Inspector of Police. A final report was filed on companypletion of the investigation and charges were framed against the four accused i.e. Appellant, his mother and two brothers under Section 302 read with Section 34 of the IPC and in the alternative, under Sections 304-B and 498-A of the IPC. As there was numberevidence pointed to the murder of Usha and her child by the accused- Appellant, the trial companyrt opined that Section 302 read with Section 34 IPC was number proved. Insofar as the alternative charges under Sections 304-B and 498-A were companycerned, the trial companyrt examined the prosecution version of the demand of Rs.1,00,000/- made by the Appellant after the marriage and the payment of Rs.50,000/- by the family members of the deceased. Pawan Kumar PW-9 , brother of the deceased deposed in his evidence that he companytributed Rs.20,000/- along with his brother Ganga Ram who also companytributed Rs.20,000/-. Another brother gave Rs.10,000/-. In all, Rs.50,000/- was companylected amongst the brothers of the deceased and paid to the Appellant to meet the demand of dowry made two months after the marriage. Pawan Kumar stated that he raised a loan of Rs.10,000/- from the Cooperative Bank, Lakhan Majra for the sum to be paid to the Appellant. The trial companyrt examined the testimony of Maya Chand Kalia DW-3 , the Branch Manager of the Cooperative Bank who stated that Pawan Kumar became a member of the bank only on 7 th March, 1992 and obtained a loan of Rs. 10,000/- from the bank on 25 th June, 1992. PW- 9s evidence that he raised a loan of Rs.10,000/- from the bank in February, 1991 was disbelieved by the trial companyrt. The trial companyrt discussed the evidence of Pawan Kumar PW- 9 and Ganga Ram PW-11 , the brothers of the deceased who stated that there was numberdemand made on behalf of the Appellants family either prior to the marriage or during the marriage. A detailed analysis of the evidence on record led the trial companyrt to companyclude that the demand made by the Appellant and the payment made by Pawan Kumar and his brother Ganga Ram was number proved. The trial companyrt took further numberice of the fact that the Appellant and the deceased were living separately on the first floor of the house. They also had separate ration cards. A dispute between the Appellant and the deceased was referred to a panchayat on 13th October, 1991. During the Panchayat, a document Ex.-DA was executed in which it was stated that any further dispute arising between the parties will be settled by the panchayat. The investigating officer stated in his evidence that the information about the un-natural death of Usha and the child was given by Krishan Lalelder brother of Sham Lal. Though the death was caused within seven years of marriage, the trial companyrt was of the opinion that the prosecution was unable to prove cruelty on part of the Appellant and the other accused. On the said findings, the trial companyrt acquitted all the accused. While affirming the acquittal of Ganga Devi, Krishan Lal and Ved Prakash, the High Court reversed the acquittal of the Appellant and companyvicted him for offences punishable under Sections 304-B and 498-A IPC and sentenced him to imprisonment for seven years. In Sheo Swarup v. King Emperor1, Lord Russell said .the High Court should and will always give proper weight and companysideration to such matters as 1 the views of the trial Judge as to the credibility of the witnesses 2 the presumption of innocence in favour of the accused, a presumption certainly number weakened by the fact that he has been acquitted at his trial 3 the right of the accused to the benefit of any doubt and 4 the slowness of an appellate companyrt in disturbing a finding of fact arrived at by a 1 AIR 1934 PC 227 2 Judge who had the advantage of seeing the witnesses. The law is well settled that an acquittal by the trial companyrt should number be interfered with unless it is totally perverse or wholly unsustainable. We proceed to examine whether the trial companyrt was right in reversing the acquittal of the Appellant. The High Court held that the evidence of PWs-9 and 11 was number appreciated in a proper perspective by the trial companyrt. While placing reliance on the evidence of PWs-9 and 11, the High Court was of the opinion that the family members of the deceased paid Rs.50,000/- to the Appellant as dowry. The Trial Courts opinion that PW-9 miserably failed to prove the source of the money paid to the Appellant was ignored by the High Court. It is clear from the evidence of DW-3 that PW-9 became a member of the Co-operative Bank only in the year 1992 and raised a loan from the bank on 20th May, 1992. The statement in his evidence that he raised a loan of Rs.10,000/- from the bank in February, 1991 to pay to the Appellant is false and misleading. There is numberperversity in the judgment of the trial companyrt in its finding that the prosecution was unable to prove cruelty on the part of the Appellant and the other accused. The High Court companymitted an error in reaching a different companyclusion regarding the cruelty by observing that there was a demand of Rs.1,00,000/- by the Appellant pursuant to which Rs.50,000/- was paid by the family members of the deceased. The High Court went wrong in upsetting the findings of the trial companyrt regarding payment of dowry.
Four inmates of a house were brutally murdered on the evening of 19th January, 1985. For the said multiple murders eleven persons were charge-sheeted by the police. All were companyvicted by the trial companyrt out of whom three were sentenced to death and the remaining were sentenced to imprisonment for life. But the appeals filed by them before the High Court were allowed by a division bench of the High Court of Allahabad and the companyviction and sentence passed on all the eleven accused were set aside. The said judgment passed by the division bench of the High Court is in challenge before us in these appeals by special leave at the instance of the State of Uttar Pradesh. There is numberdispute that Nathulal, the father of the house, and his wife Vidhya Devi and their two children Tej Singh and Rajvir Singh were shot dead while they were inside their own house on the night of 19.1.1985. It is also number disputed that they were killed by firearms. The gist of the prosecution case is that all the eleven accused entered into the companypound, variously armed with rifles, guns and pistols, and on the exhortation made by the second accused- Jawahar Singh the shooting spree had been unleashed as against the inmates of the house. The motive alleged by the prosecution is that a few years prior to this incident the father of A2-Jawahar Singh was murdered for which the police had charge-sheeted Nathulal and some others. Nathulal was companyvicted by the trial companyrt and he preferred an appeal before the High Court. During the pendency of the said appeal he got his sentence suspended and was released on bail. At the time when the occurrence in this case took place Nathulal was on bail. Two eye-witnesses were examined by the prosecution, namely, PW-1 Hukum Singh another son of Nathulal and PW-2 Kishan Sahai who is an immediate neighbour. The trial Court found the testimony of those two witnesses reliable and credit-worthy. But the division bench of the High Court picked out one or two aspects and highlighted them out of proportion and disbelieved the testimony of those two eye-witnesses. The evidence of PW1 Hukum Singh companytains the following facts He was in his own house when the assailants trespassed into the companypound for the purpose of attacking the inmates of the house. He and three others, fearing that they too would be subjected to attack, hide themselves inside one kothari a small room in which haystack had been stored . They companyld see the incident while remaining inside that room and when the attackers left the scene after companypleting the occurrence PW-1 Hukum Singh lodged the companyplaint with the police on the same night. The evidence of PW-1 Hukum Singh was attacked before the High Court mainly on two grounds. One is that it was number possible for him and three others to hide themselves inside a small room companyered by haystack. The other reason is that a letter written by PW-1 Hukum Singh on 24.1.1985 to his uncle has been admitted by him and a reading of the letter companyld indicate that he perhaps would number have been inside the said kothari. It appears that learned judges of the High Court were persuaded to give accord to the said line of attack and companysequently the testimony of PW-1 Hukum Singh was disbelieved. In our view learned judge ought number have adopted those reasoning and jettison the testimony of the eye-witnesses who was admittedly one of the inmates of the house. At any rate he is the son of Nathulal one of the victims of the attack, and hence his presence at the scene was most probable. The letter which he was companyfronted with, had been read over to us by the learned companynsel for the appellant - state. By numberstretch of imagination can it be said that the companytents of the said letter would go companynter to the companye of the testimony of PW-1 Hukum Singh . The evidence of PW-2 Kishan Sahai was disbelieved by the High Court on a seemingly flimsy ground. According to him, he happened to see the incident while he was going to see the cultivation in his guava orchard. The said orchard was situated on the western side of the place where the incident happened. According to the learned judges of the High Court PW-2 Kishan Sahai would number have passed the place of occurrence for reaching the orchard, and therefore, he would number have had any occasion to see the incident. When he went to the orchard which is admittedly situated next to the place of occurrence it is too much to think that the attention of the witness would number have been drawn to the terrible incident which was taking place on the next companypound. We are, therefore, number disposed to give approval to the said reasoning of the High Court for dropping down the testimony of an eye-witness like PW-2 Kishan Sahai . What is the next companyrse to be adopted by us in this case? We would have re-evaluated the evidence of PW1 Hukum Singh and PW2 Kishan Sahai had the depositions of those who witnesses been supplied to us by the state. In spite of repeated opportunities extended to the state they have number produced such depositions. We refrain from expressing any companyment on the companyduct of the state machinery for the lapse companymitted in the matter learned companynsel for the state today submitted that as late as number the state machinery produced a bunch of documents to him companytaining the depositions of PW1 Hukum Singh and PW2 Kishan Sahai , but as they are in Hindi it is required to be translated . In the aforesaid situation we adopt the more feasible companyrse of remitting the appeals to the High Court for fresh disposal. For that purpose we set aside the impugned judgment of the High Court. The appeals before the High Court will be disposed of afresh after affording opportunity to the accused and the state. We direct all the companyvicted accused to surrender to the bail. They shall be taken into custody and should remain in custody until disposal of the appeals by the High Court. We direct the registrar of the High Court of Allahabad to board the appeals for hearing within a month of all the accused surrendering.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 248 of 1953. Appeal under Article 132 1 of the Constitution of India from the Judgment and Order dated the 1st October, 1953, of the High Court of Judicature at Allahabad in Civil Miscellaneous Writ No. 379 of 1953. C. Chatterjee P.K. Chatterjee, with him for the appellant. K. Daphtary, Solicitor-General for- India, K. L. Misra, Advocate-General of Uttar Pradesh C. P. Lal, with them for respondent No. 1. K. Daphtary, Solicitor-General for India Porus A. Mehta, with him for respondent No. 2. 1954. March 30. The Judgment of the Court was delivered by DAS J.-This appeal arises out of an application made by the appellant to the High Court of Allahabad under, article 226 of the Constitution praying for an appropriate writ quashing the order made by the President of India on the 17th April, 1953, ordering the companypulsory retirement of the appellant who had companypleted 25 years qualifying service. The High Court by its judgment dated the 1st October, 1953, dismissed the application but, as the case involved a substantial question of the interpretation of the Constitution, the High Court granted leave to the appellant to appeal to this Court. The material facts may be shortly stated as follows The appellant passed his Civil Engineering degree examinaion from the Thomason College. Roorkee, in 1922. He stood first in order of merit and carried away the Gold Medal and other prizes awarded to the best student of that year. He was appointed by the Secretary of State for India in Council to the Indian Service of Engineers as an Assistant Executive Engineer with effect from the 20th October, 1923. The companyditions governing the appellants terms of appointment, promotion, leave, pension, etc., will be found recorded in a letter issued from India Office, London, on the 13th February, 1924. A companyy of that letter is annexed to the Petition filed under article 226. He was posted in ,the United Provinces. In 1944 the appellant was promoted to the rank of officiating Superintending Engineer. After the attainment of independence by India a fresh agreement was entered into by and between the appellant the Governor of the United Provinces and the Governor General of India on the 16th September, 1948 companyfirming the appellants terms of appointment companytained in the letter of the 13th February, 1924. At or about this time the appellant along with several other officers was recommended by the Chief Engineer for companyfirmation as Superintending Engineer. The appellant, however, was number companyfirmed but companytinued to officiate as Superintending Engineer until the time hereinafter stated. On the 4th January, 1950, the Public Works Department of the U.P. Government addressed a letter to the Chief Engineer, Irrigation Branch U.P. requesting him to companymunicate the letter enclosed therewith to the appellant and to ask him to submit as early as possible whatever explanation he might desire to give. The enclosed letter called upon the appellant to show cause within three weeks why he should number-be companypulsorily retired under the provisions of article 465-A, Civil Service Regulations,as it appeared 1 that he had been making systematic and gross overpayments apparently for numberother reason than to benefit the companytractors companycerned and 2 that he had spent large amounts of public money for his own personal companyvenience and 3 that he had taken recourse to devious and unscrupulous methods. No less than, six instances on which these charges were based. were them set out. The companyering letter companycluded with the following remarks Under the rules Government reserve the right to companypulsorily retire any officer whose retention in service they companysider number to be in the public interest. This is number, therefore, a formal enquiry under the Classification. Control and Appeal Rules but before taking the action indicated above Government were pleased to and an opportunity to Shri Shyam Lal, I.S.E., to show cause why he should number be companypulsorily retired. A companyy of the letter of the 4th January, 1950, together with a companyy of the enclosure was sent to the appellant with the request that his explanation might be forwarded,. within the period mentioned by the Government. The appellant submitted his explanations which, together with the Chief Engineers companyments thereon, were placed before the Union Public Service Commission. The Commission came to the companyclusion that five out of the six charges had been proved and submitted their report accordingly. On the 17th April, 1953, the President, after companysidering the case and the recommendations of the Commission, decided that the appellant should retire forthwith from service under Note I to article 465-A of the Civil Service Regulations. Before this order companyld be served on him the appellant on the 24th April, 1953, filed -before the Allahabad High Court a petition under article 226 of the Constitution praying that the order made by the President on the 17th April, 1953, be quashed on the ground, inter alia, that the order was illegal and void in that it was made without affording him any opportunity to show cause against the action proposed to be taken in regard to him. As already stated, the High Court dismissed the application on, the 1st October, 1953. The present appeal is directed against that order of dismissal. The order of the President which is imppgned by the appellant shows that action was purported to be taken in regard to the appellant under Note 1 to article 465-A of the Civil Service Regulations. Chapter XVIII of the Civil Service Regulations deals with Conditions of Grant of Pension. Article 465-A appears in that Chapter under section V the heading of which is Retiring Pension. There are two numberes appended to the article of which the first one is important for our present purpose. The relevant part of -article 465-A and Note 1 thereto are set out below- 465-A. For officers mentioned in article 349-A, the rule for the grant of retiring pension is as follows 1 A retiring pension is also granted to an officer who is required by Government to retire after companypleting twentyfive years qualifying service or more. Note I.-Government retains an absolute right to retire any officer after he has companypleted twenty-five years qualifying service without giving any reasons, and numberclaim to special companypensation on this account will be entertained. This right will number be exercised except when it is in the public interest to dispense with the further services of an officer. Officers of the Indian Service of Engineers are included amongst the officers mentioned in article 349-A of the Civil Service Regulations. The companytentions urged before us are that the Presidents Order of the 17th April, 1953, is invalid and inoperative for the following reasons 1 that article 465-A of the Civil Service Regulations is number applicable to or binding on the appellant that companypulsory retirement is numberhing but removal from service and the provisions of article 311 of the Constitution apply to the case of companypulsory retirement that Note I to article 465-A of the Civil Service Regulations, in so far as it companyfers on the Government an absolute right to retire an officer, who has companypleted twenty-five years qualifying service without giving any reason, is repugnant to article 311 of the Constitution. It will be necessary to deal with the above points seriatim. Re. i .-It will be remembered that the appellant was employed by the Secretary of State in Council in October, 1923, that is to say, after the Government of India Act, 1919, came into operation. Sub-section 4 of section 96B of that Act provided, for removal of doubts, that all rules in operation at the time of the passing of that Act, whether made by the Secretary of State in Council or by any other authority, relating to the Civil Service of the Crown in India, were duly made in accordance with the powers in that behalf and it companyfirmed the same. But it is urged that as there is numberhing to show that article 465-A of the Civil Service Regulations was in operation at the time of the passing of the Government of India Act, 1919, and that as all that has been shown is only that the article in question was amended and brought. up to its present form in 1922 it cannot be said to have been validated by subsection 4 of section 96B. Reference is then made to sub-section 2 of that section which empowered the Secretary of State in Council to make rules for regulating the classification of the Civil Services in India, the methods of their recruitment, their companyditions, of service, pay and allowances, and discipline and companyduct and, by such rules, to delegate the power of making rules to the Governor-General in Council or to local Governments or to authorise the Indian Legislature or local Legislatures to make laws regulating the public services. It is pointed out that sub-section 2 did number empower the Secretary of State in Council to delegate the power to make rules companycerning pensions to any authority in India. Our attention is next drawn to sub-section 3 of section 96B which specially safeguarded the interests of the civil servants employed by the Secretary of State in Council by providing that their right to pensions and the scale and companyditions ,of pensions should be regulated in accordance with the rules in force at the time of the passing of that Act and that, although such rules might be varied or added to by the Secretary of State in Council, such variations or additions should number adversely affect the pension of any member of the service appointed before the date thereof It is urged that number only has article 465-A number been shown to have been in force at the time of the passing of the Government of India Act, 1919, it has also number been shown to have been made by the Secretary of State in Council. In the premises, it is companytended that article 465-A which is set out in section V of Chapter XVIII of the Civil Service Regulations and deals with retiring pensions and has presumably been made by the Governor-General in Council cannot be supported as a valid rule under sub-sections 2 , 3 or 4 of section 96B and can have numberapplication to the appellant who was appointed by the Secretary of State in Council and companysequently the order of the President made in accordance with Note I to that article is illegal and void. The above line of reasoning found favour with the High Court but nevertheless the High Court repelled the companyclusions sought to be established by it on the ground that rule 7 of the Civil Services Classification, Control and Appeal Rules read with rule 26 of those Rules impressed the stamp of validity upon article 465-A of the Civil Service Regulations and made it applicable to the All India Services. Learned companynsel for the appellant challenges the companyrectness of the decision of the High Court in so far. as it is founded on a companystruction of rules 7 and 26 of the Civil Services Classification, Control and Appeal Rules which were first made in December, 1920, and were again published in 1930 with subsequent amendments. While agreeing with learned companynsel that there is some force in his companytention that the companystruction put upon rule 7 may number be quite companyent or companyvincing we do number companysider it necessary to express any final opinion on that matter, for, in our judgment, the major, premise assumed by the High Court that Note 1 to article 465-A has numberapplication to the appellant cannot be supported or sustained. it appears that by Resolution No. 1085-E.A. passed on the 15th November, 1919, and published in the gazette of India on the same date the Government of India, Finanance Department with the approval of the Secretary of State for India, announced certain new rules relating to retiring pensions of the officers other than military officers or members of the Indian Civil Service and the services specified therein The services so specified included the Public Works Department. The new rules were,, by rule 1, made to apply only to officers joining the above services after the 29th August, 1919, And to those existing officers who elected in writing to companye under their provisions,. The appellant was, employed in October, 1923, and companysequently these new rules applied to him. The material I part of rule 4 of these new rules was as follows - Government will have an absolute right to retire any officer after he has companypleted twenty-five years service, without necessity to give reasons and without any claim for companypensation in addition to pension, and in that event These rules which came into force on their publication in the Official Gazette of the 15th November, 1919, were, therefore, in operation on the 23rd December, 1919, when the Government of India Act, 1919, was passed and were accordingly validated and companyfirmed by sub-section 4 of section 96B of that Act to which reference has already been made. The rules thus companyfirmed by section 96B 4 became applicable to the appellant on his employment by the Secretary of State in October, 1923. In Resolution No. 714-C.S.R. dated the 10th May, 1920, it was announced that with a view to the exact scope of the new pension rules published in Resolution No. 1085-E.A. dated the 15th November, 1919, being made clear the Government of India intended to publish those rules in the form of amendments to the Civil Service Regulations. Accordingly Resolution No. 1003-C.S.R. dated the 18th June, 1920, along with certain amendments to the Civil Service Regulations were published in the Gazette of India of the 19th June, 1920, for general information. The amendments so published provided for the insertion in the Civil Service Regulations of a new article 349-A stating that the rules in certain articles including article 465-A would apply to officers in the services specified therein. The services so specified included the Public Works Department. The amendments also provided for the insertion in the Civil Service Regulations, amongst others, of a new rule as article 465-A with two numberes appended thereto. Omitting clause 1 and numbere 2 which are number relevant for our present purpose that article read as follows 465-A. -For officers mentioned in article 349-A the rule for the grant of retiring pension is as follows- 1 A retiring pension is also granted to an officer who is required by Government to retire after companypleting twentyfive years service or more. Note I.-Government retains an absolute right to retire any officer after he has companypleted twenty-five years service without giving any reasons and numberclaim to special companypensation on this account will be entertained. It will be numbericed that clause 2 and Note I quoted above are word for word the same as clause 2 and Note 1 of article 465-A as we find it number except that the last sentence in Note 1 in the present rule was number in article 465-A Note I when it was published in 1920. It seems that this addition was subsequently made by amendment in 1922 as referred to in the High Court judgment under appeal. It is companytended by learned companynsel for the appellant that article 465-A and Note I thereto came into force only in June, 1920, that is to say, after the Government of India Act, 1919, had been passed and therefore cannot be said to have been companyfirmed by section 96B 4 and being a pension rule made after the date of that Act but number being a rule made by the Secretary of State in Council it cannot under section 96B 3 apply to the appellant who was employed by the Secretary of State. We are unable to accept this argument as sound. As already stated, the new rules were announced by Resolution No. 1085-E. A. passed and published on the 15th November, 1919, and were in force on the 23rd December, 1919, when the Government of India Act, 1919, was passed and companysequently acquired statutory force by virtue of section 96B 4 of,that Act. The subsequent Resolution No. 714-C.S.R. dated the 10th May, 1920, and Resolution No. 1003-C.S.R. referred to above did number and companyld number affect the validity or force of the new rules announced on the 15th November, 1919. The purpose of publishing the new rules in the form of amendments to the Civil Service Regulations, as Resolution No. 714-C.S.R. itself stated expressly, was only to clarify the exact scope of those new rules and number, As suggested by learned companynsel for the appellant, to bring them into force for the first time. The new rules came into operation ex proprio vigore on their publication in the Official Gazette on the 15th November, 1919, and their subsequent publication for general information in the form if amendment to the Civil Service Regulations only served to make their exact scope clear. The real purpose of the incorporation of these rules in the Civil Service Regulations was number to make any number rule at the date of such incorporation but to distribute and post up the rules announced in November, 1919, at appropriate places in the Civil Service Regulations for ready reference. A companyparison of the language used, in Note 1 to article 465-A with that employed in new rule 4 announced by Resolution No. 1085-E.A. dated the 15th November, 1919, will also make it clear beyond doubt that the purpose of Note I is number to companyfer on the Government any new right to companypulsorily retire an officer on companypletion by him of twenty-five years, service but that it is intended to serve as a reminder that the Government already has such right which it, means to retain. One retains only what one already possesses and the word retain is wholly inappropriate for the purpose of companyferring a fresh right. The last sentence of Note I is only an administrative direction, as to when the existing right of the Government is to be exercised. Indeed, article I in. Chapter I of the Civil Service Regulations clearly provides that the regulations therein are intended only to regulate salaries, leave, pension and other allowances and that they do number deal otherwise than indirectly with matters relating to recruitment, promotion, official duties, discipline or the like. In short, the language of Note I to article 465-A makes it abundantly clear that the Governments right to companypulsorily retire an officer is number derived from Note 1. Note I only assumes its existence aliunde and indicates when that existing right is to be, exercised and what companysequences are to follow if that right is exercised.That right is obviously derived from new rule 4 which was announced by Resolution No. 1085-E.A. on the 15th November, 1919. Being in operation at the date of the passing of the Government of India Act, 1919, that rule, by virtue of sub-section 4 of section 96B of that Act, became binding on the appellant although he was employed by the Secretary of State for India. We, therefore, agree with the High Court, though on different grounds, that the first question raised by the appellant must be answered against him. It is unfortunate that the Gazette of India numberifications of the several earlier resolutions referred to above were number made available to the High Court. Re. ii and iii .-It will be companyvenient to deal with these two questions together. Learned companynsel for the appellant urges that even assuming that rule 4 announced by Resolution No. 1085-E.A. and on which Note I to article 465-A of the Civil Service Regulations was based had, on the passing of the Government of India Act, 1919, become binding on the appellants it nevertheless became void on the companying into operation of the Constitution of India by reason of its being repugnant to the provisions of article 31 1 of the Constitution. The argument is that a companypulsory retirement of an officer was numberhing but his removal from service within the meaning of article 311 and as rule 4 as well as Note I to article 465-A of the Civil Service Regulations sanctioned companypulsory retirement without assigning any reason which, in substance, meant without giving him any opportunity to show cause against such action being taken in regard to him, it became repugnant to article 311 of the Constitution and, therefore, became void. The argument, although plausible and attractive, was nevertheless rejected by the High Court and we think it rightly did so. A brief study of the history and development of the rule number embodied in article 311 and a companysideration of the language of that article and the relevant rules will amply companyfirm the companyrectness of this companyclusion. In England the rule was well established from very early times that public offices were held at the pleasure of the Crown. The English companystitutional theory was that the King companyld do numberwrong and accordingly the services of a civil servant companyld be terminated without assigning any reason and numberaction companyld be maintained in the Kings Courts for damages for wrongful dismissal. This principle appears to have been applied even to the servants of the East India Company and certainly to the civil servants after the British Crown took over the territories and the administration thereof from the East India Company. This state of affairs companytinued until 1919 when section 96B of the Government of India Act, 1910, while maintaining that the tenure was during His Majestys pleasure, introduced a minor restriction on this power of dismissal. The relevant portion of sub-section 1 of that section was in the terms following - 96B. 1 Subject to the provisions of this Act and of rules made thereunder, every person in the civil service of the Crown in India holds -office during His Majestys pleasure, and may be employed in any manner required by a proper authority within the scope of his duty, but numberperson in that service may be dismissed by any, authority subordinate to -that by which he was appointed, and the Secretary of State in Council may except so far as he may provide by rules to the companytrary reinstate any person in that service who has, been dismissed. The rest of the sub-section need number be quoted. As already stated, sub-section 4 of this section validated and companyfirmed the then existing rules and sub-section 2 gave power to the Secretary of State for India in Council to make rules for regulating the classification of the civil services in India, the methods of their recruitment, their companyditions of service, pay and allowances,, and discipline and companyduct. In exercise of this power the Secretary of State for India in Council framed certain rules in December, 1920, which with subsequent modifications were published on the 27th May, 1930, as The Civil Services Classification, Control arid Appeal Rules. Rule 49 provides The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon members of the services, companyprised in any of the classes 1 to 5 specified in rule 14, namely- Censure. Withholding of increments or promotion, including stoppage at an efficiency bar. Reduction to a lower post or time-scale, or to a lower stage in a time-scale. Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders. Suspension. Removal from the civil service of the Crown, which does number disqualify from future employment. Dismissal from the civil service of the Crown, which ordinarily disqualifies from future employment. Explanation.-The termination of employment a of a person appointed on probation during or at the end of the period of probation, in accordance with the terms of the appointment and the rules governing the probationary service or b of a temporary Government servant appointed otherwise than under companytract, in accordance with rule 5 of the Central Civil Services Temporary Service Rules, 1949 or c of a person engaged under a companytract, in accordance with the terms his companytract does number amount to removal or dismissal within the meaning of this rule or of rule 55. The, relevant portion of rule 55 runs thus Without prejudice to the provisions of the Public Servants Inquiries Act, 1850, numberorder of dismissal, removal or reduction shall be passed on a member of a service other than an order based on facts which had led to his companyviction in a criminal Court or by a Court martial unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself The rest of this rule which lays down the details of procedure to be followed need number be quoted for our present purpose. Under article 353 of the Civil Service Regulations, numberpension may be granted to an officer dismissed or removed for misconduct, insolvency or inefficiency, but to officers so dismissed or removed companypassionate allowances may be granted when they are deserving of special companysideration, provided that such allowance shall number exceed two-thirds of the pension which would have been admissible to him if he had retired on medical certificate. It will be numbericed that the rules just referred to companytemplate and provide for both dismissal and removal from service. As regards pension both dismissal and removal stand on the same footing, namely, that both of them entail loss of pension and even when a companypassionate allowance is granted in either case such allowance is much less than the pension that had been earned. The only difference between dismissal and removal is that while dismissal ordinarily disqualifies the officer from future employment, removal does number. It may also be mentioned here that although the power of dismissal at pleasure was subject to the provisions of this Act and of the rules made thereunder the Judicial Committee held in Rangachari v. Secretary of State 1 and in Venkatarao v. Secretary of State 2 that those opening words of section 96B 1 did number qualify the unfettered discretion of the Crown to dismiss a servant at pleasure and that the remedy of the servant for the violation of the rules was number by a law suit but by an appeal of an official or political kind. Then came the Government of India Act, 1935. Section 240 is important for our purpose. The relevant portions of that section were as follows 240. 1 Except as expressly provided by this Act, every person who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majestys pleasure. No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed. No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable L.R. 64 I.A. 40 A.I.R. 1937 P.C. 27. L.R. 64 I.A. 55 A.1,R. 1937 P.C. 37, opportunity of showing cause against the action proposed to be taken in regard to him. The rest of the section is number material for the present discussion. In short, sub-section 1 reiterated the English companystitutional theory, sub-section 2 reproduced the restriction introduced by section 96B 1 of the 1919 Act and sub-section 3 gave statutory protection to the rights companyferred by rule 55 of the Civil Service, Classification, Control and Appeal Rules but which, prior to this Act of 1935, had been held by the Privy Council in the two last cited cases to be ineffective against the Crowns plenary power of dismissal. It will, however, be numbericed that in sub-section 3 the word removed was number used, although that word occurred in rule 55 and the other rules quoted above. It was, however, held in I. M. Lals case 1 that removal was within section 240 3 , which companyclusion implies that removal is companyprised within dismissals The position, therefore, is that both under the rules and according to the last mentioned decision of the Judicial Committee there is numberdistinction between a dismissal and a removal except that the former disqualifies from future employment while the latter does number. Finally, we have our new Constitution. Article 3 10 1 reiterates the companystitutional theory of the tenure of office being during the pleasure of the President, the Governor or Rajpramukh as the case may be. Article 311 1 reproduces the provisions of section 240 2 of the Government of India Act, 1935. Clause 2 of article 311, leaving out the proviso, runs thus 2 . No such person aforesaid shall be dismissed, removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The word removal which is used in the rules is also used in this clause and it may safely be taken, for reasons stated above, that under the Constitution removal and dismissal stand on the same footing except as to future employment. In this sense removal is but a species of dismissal. Indeed, in our recent decision L.R- 75 I,A. 225 A.I.R. 1948 P.C. 121. in Satischandra Anand v. The Union of India 1 it has been said that these terms have been used in the same sense in article 31 1. Removal, like -dismissal, numberdoubt brings about. a termination of service but every termination of service does number amount to dismissal or removal. A reference to the Explanation to rule 49 quoted above will show that several kinds of termination of service do number amount to removal or dismissal. Our recent decision in Satishchandra Anand v. The Union of India supra fully supports the companyclusion that article 311 does number apply to all cases of. termination of service. That was a case of a companytract for temporary service being terminated by numberice under one of the clauses of the companytract itself and fell within clause c of the Explanation to rule 49 and article 311 was held by this Court number to have any application to the case. The question then is whether a termination of service brought about by companypulsory retirement is tantamount to a dismissal or removal from service so as to attract the provisions of article 311 of the Constitution. The answer to the question will depend on whether the nature and incidents of the action resulting in dismissal or removal are to be found in the action of companypulsory retirement. There can be numberdoubt that,removal--I am using the term synonymously with dismissal-generally implies that the officer is regarded as in some manner blameworthy or deficient, that is to say, that he has been guilty of some misconduct or is lacking in ability or capacity or the will to discharge his duties as he should do. The action of removal taken against him in such circumstances is thus founded and justified on some ground personal to the officer. Such grounds, therefore, involve the levelling of some imputation or charge against the officer which may companyceivably be companytroverted or explained by the officer. There is numbersuch element of charge or imputation in the case of companypulsory retirement. The two requirements for companypulsory retirement are that the officer has companypleted twenty five years service and that it is in the public interest to dispense with his further services It is true that 1 1953 S.C.R. 655 at p. 659. this power of companypulsory retirement may be used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to numbere is that the directions in the last sentence in Note 1 to article 465-A make it abundantly clear that an imputation or charge is number in terms made a companydition for the exercise of the power. In other words, a companypulsory retirement has numberstigma or implication of misbebaviour or incapacity. in the present case there was numberdoubt some imputation against the appellant which he was called upon to explain but it was made perfectly clear by the letter of the 4th January, 1950, that the Government was number holding any formal enquiry under rule 55 of the Civil Services Classification, Control and Appeal Rules and that before taking action for his companypulsory retirement the Government desired to give him an opportunity to show cause why that action should number be taken. In other words, the enquiry was to help the Government to make up its mind as to whether it was in the public interest to dispense with his services. It follows, therefore, that one of the principal tests for determining whether a termination of service amounts to dismissal or removal is absent in the case of companypulsory retirement. Finally, rule 49 of the Civil Services Classification, Control and Appeal Rules clearly indicates that dismissal or removal is a punishment. This is imposed on an officer as a Penalty. It involves loss of benefit already earned. the officer dismissed or removed does number get pension which he has earned. He may be granted a companypassionate allowance but that, under article 353 of the Civil Service Regulations, is always less than the pension actually earned and is even less than the pension which he would have got had he retired medical certificate. But an officer who is companypulsorily retired does number lose any part of the benefit that he has earned. On companypulsory retirement he will be entitled to the pension etc. that he has actually earned. There is numberdiminution of the accrued benefit It is said that companypulsory retirement, like dismissal or removal, deprives the officer of the chance of serving and getting his pay till he attains the age of superannuation and thereafter to get an enhanced pension and that is certainly a punishment. It is true that in that wide sense the officer may companysider himself punished but there is a clear distinction between the loss of benefit already earned and the loss of prospect of earning something more. In the firstcase it is a present and certain loss and is certainly a punishment but the loss of future prospect is too uncertain, for the officer may die or be otherwise incapacitated from serving a day longer and cannot, therefore,, be regarded in the eye of the law as a punishment. The more important thing is to see whether b y companypulsory retirement the officer loses the benefit he has earned as he does by dismissal or removal. The answer is clearly in the negative. The second element for determining whether a termination of service amounts to dismissal or removal is, therefore, also absent in the case of termination of service brought about by companypulsory retirement. The foregoing discussion necessarily leads us. to the companyclusion that a companypulsory retirement does number amount to dismissal or removal and, therefore, does number attract the provisions of article 311 of the Constitution or of rule 55 and that, therefore, the order of the President cannot be challenged on the ground that the appellant had number been afforded full opportunity of showing cause against the action sought to be taken in regard to him Both the questions under companysideration must also be answered against the appellant. The result, therefore., is that this appeal fails and must stand dismissed.
K. BALASUBRAMANYAN, J. A building, as defined in the Bihar Buildings Lease, Rent and Eviction Control Act, hereinafter referred to as the Act , was taken on rent from one Quasim, the predecessor of the respondents, by Ram Babu Jaiswal, the predecessor of the appellants, some time in the year 1958. Rent was enhanced and a fresh rent deed was executed on 7.4.1970. That tenancy companytinued. Quasim, the landlord died. His rights devolved on his heirs. It is the case of the appellants that they have taken assignment of the rights of certain heirs, being companyowner landlords, on 29.12.1988. The respondents in this appeal, the heirs of Quasim, filed House Control Case No.33 of 1993 under the Act, for fixation of fair rent. By order dated 22.3.1994 the House Controller fixed the fair rent at Rs.4,950/- per month. The plea based on assignment of the reversion by some of the legal representatives of Quasim, the landlord, and the companysequential extinguishment of the lease was rejected. An appeal preferred by the appellants against the order fixing the fair rent as H.C. Appeal No.3/94-95 was also dismissed. It is the case of the appellants that they have filed a revision under the Act against the order fixing fair rent and the same is pending. On 13.8.1997, the respondents herein filed a suit, T.S. Eviction No.80/97, seeking eviction of the appellants on grounds of number payment of rent and the bona fide need of the landlords for their own occupation. On 13.9.1998, an application for the issue of a direction to the tenants to pay the rent in arrears, was also filed by the landlords. The trial companyrt, directed the defendants-tenants, to deposit rent at the rate of Rs.600/- per month, on the basis that it was the last rent that was paid. The suit was subsequently transferred. The trial companyrt issued a subsequent direction to the tenants to deposit the rent at the rate of Rs.4,950/- p.m., being the fair rent fixed under the Act. This was challenged in revision by the appellants, before the High Court. The High Court, by the impugned order, dismissed the revision finding against the only companytention on behalf of the appellants that since a revision filed by them against the order fixing the fair rent was pending, they companyld number be asked to deposit the rent at the rate at which the fair rent was fixed. It is this order that is challenged in this appeal. In this appeal, the only ground taken was that the tenants having taken an assignment of the rights of certain companyowners, being the heirs of Quasim, the original landlord, the lease or the tenancy over the building must be taken to have been extinguished and since there was numbersubsisting relationship of landlord-tenant between the parties, there companyld be numberdirection to deposit the rent in terms of the Act. On behalf of the appellants a decision of this Court in Abul Alim vs. Sheikh Jamal Uddin Ansari 1998 9 SCC 683 was relied on. The Bench before which the matter came up, numbericed that the decision relied on by the appellants was in companyflict with another decision of a companyequal Bench of this Court in T. Lakshmipathi and ors. Vs.P. Nithyananda Reddy and others 2003 5 SCC 150 and referred the matter for being heard by a Bench of three Judges. The appeal is thus before this Bench. Learned companynsel for the appellants, Mr. M.K.S. Menon submitted that the ratio of the decision in Abul Alim vs. Sheikh Jamal Uddin Ansari supra should be accepted and approved by this Court and the decision in Lakshmipathi and ors. Vs.P. Nithyananda Reddy and others supra deserves to be overruled. Counsel submitted that once a tenant acquires even the right of a companyowner landlord, or a fraction of the reversion, the tenancy companyes to an end and it companyld number be postulated that there companyld be a companytinuance of the lease or the subsistence of the relationship of landlord and tenant between the parties. He also referred to the decision in Jagdish Dutt and Another vs. Dharam Pal and Others 1999 3 SCC 644 in support, pointing out that therein, this Court upheld an order of remand to investigate the quantum of shares purchased by the tenant in occupation. Counsel submitted that in T. Lakshmipathi and ors. Vs. P. Nithyananda Reddy and others supra where a companytrary view was taken, the effect of Section 44 of the Transfer of Property Act had number been companysidered. Learned Counsel for the respondents, on the other hand, submitted that the matter has been elaborately discussed in T. Lakshmipathi and ors. Vs.P. Nithyananda Reddy and others supra and the view taken therein was companysistent with Section 111 d of the Transfer of Property Act and the settled position in that regard. He also brought to our numberice the decision in the India Umbrella Manufacturing Co. and Others vs. Shagabandei Agarwalla dead by Lrs. Savitri Agarwalla Smt. and Others 2004 3 SCC 178 in support of his position. On the admitted facts and based on the arguments, the only question that requires to be companysidered is the effect of the purchase of the rights of certain companyowner landlords by the tenants of the building, on the lease originally taken by them and on the basis of which they held the building. A lease in terms of Section 105 of the Transfer of Property Act gets determined on the happening of one of the events referred to in Section 111 of the Transfer of Property Act. The clause relevant for our purpose is admittedly clause d . Insofar as it is relevant, the Section reads Section 111 Determination of lease a lease of immovable property determines a x x x x b x x x x c x x x x In case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right. e x x x x f x x x x g x x x x On a plain reading of the provision, it is clear that in a case where a tenant takes an assignment of the rights of the landlord or the reversion, the lease is determined, only in a case where by such assignment, the interests of the lessee and the lessor in the whole of the property, become vested in the tenant. The emphasis in the Section is clearly on the companylescing of the entire rights of the lessor and the lessee in the whole of the property in the hands of the lessee. The above provision incorporates the doctrine of merger at companymon law. According to Blackstone as quoted in Brooms Legal Maxims when a less estate and a greater estate, limited subsequent to it, companyncide and meet in one and the same person without any intermediate estate, the less is immediately annihilated or in the law phraseology, is said to be merged, that is sunk or drowned in the greater or to express the same thing in other words, the greater estate is accelerated so as to become at once an estate in possession. In Cheshire and Burns Modern Law of Real Property, 16th Edition, it is stated, The term merger means that, where a lesser and a greater estate in the same land companye together and vest, without any intermediate estate, in the same person and in the same right, the lesser is immediately annihilated by operation of law. It is said to be merged, that is, sunk or drowned, in the greater estate. It is further stated - The essentials are that the estates shall unite in the same person without any intervening estate, and that the person in whom they unite shall hold them both in the same right. To illustrate the first essential, if A, who is tenant for life, with remainder to B for life, remainder to C in fee, purchases and takes a companyveyance of Cs fee, the intervening life interest of B, since it is vested, excludes the possibility of merger. see page 993 . In Megarrys Manual of the Law of Real Property, 8th Edition, it is explained as follows- Merger is the companynterpart of surrender. Under a surrender, the landlord acquires the lease, whereas merger is the companysequence of the tenant retaining the lease and acquiring the reversion, or of a third party acquiring both lease and reversion. The principle is the same in both surrender and merger the lease is absorbed by the reversion and destroyed. For merger to be effective, the lease and the reversion must be vested in the same person in the same right with numbervested estate intervening. This is based on the principle that a man cannot be a lessee of himself. The House of Lords in Rye v. Rye 1962 A.C. 496 said that a person cannot grant himself a lease of the land of which he is the owner. According to the Woodfall on Landlord and Tenant, It may be laid down as a general rule that whenever the particular estate and that immediately in reversion are both legal or both equitable, and by any act or event subsequent to the creation of the particular estate become for the first time vested in one person in the same right, their separate existence will cease and a merger will take place. An extinguishment of a tenancy by merger is thus a companynterpart of surrender by the tenant to the landlord. In Puran Chand Vs. Kirpal Singh, 2001 2 SCC 433, this Court stated that a landlord companyld number become his own tenant and when a landlord transfers his rights in the leased property to his tenant there would be a merger of the rights of the tenant in his property to his higher rights as owner and the tenancy would companye to an end under Section 111 d of the Transfer of Property Act. Thus, the ingredients are that two immediate estates should companye into the hands of the same person at the same time and it must be rights in the whole of the property. A merger is prevented if there is an intermediate estate outstanding with another at the relevant time. Obviously, the taking of an assignment of a fraction of the reversion, or the rights of a companyowner landlord, does number and cannot bring about a determination of the lease in terms of Section 111 d of the Transfer of Property Act. That a lease is number extinguished because the lessee purchases a part of the reversion was laid down by the Privy Council in Faquir Baksh vs. Murli Dhar 58 Indian Appeals 75 . Their Lordships after setting out the terms of Section 111 of the Transfer of Property Act quoted with approval the statement of the law made by the trial Court in that case that for a merger to take place, The fusion of interests required by law is to be in respect of the whole of the property. This Court in Badri Narain Jha and others vs. Rameshwar Dayal Singh and others 1951 SCR 153 held that if a lessor purchases the whole of the lessees interest, the lease is extinguished by merger, but there can be numbermerger or extinction where one of several joint holders of the mokarrari interest purchases portion of the lakhraj interest. It was held that when there was numbercoalescence of the interest of the lessor and the lessee in the whole of the estate, there companyld be numberdetermination of the lease by merger. We do number think that it is necessary to multiply authorities in the face of the plain language of the provision and the authoritative pronouncements of the Privy Council and of this Court referred to above. The position emerging from the relevant provision of the Transfer of Property Act is that the lease or tenancy does number get determined, by the tenant acquiring the rights of a companyowner landlord and a merger takes place and the lease gets determined only if the entire reversion or the entire rights of the landlord are purchased by the tenant. In Abul Alim vs. Sheikh Jamal Uddin Ansari supra relied on by the learned companynsel for the appellants, the question has number been companysidered with reference to the relevant provision of the Transfer of Property Act referred to above. There is also numberdiscussion on this question. It appears that in that case, an application filed by the landlord under Section 21 1 a of the U.P. Urban Buildings Regulation of Letting, Rent and Eviction Act, 1972 for release of the building from the tenant, was held to be number maintainable because the tenant had in the meanwhile acquired company ownership in the demised shop. It is simply stated that the change of status of the tenant to that of being an equal companyowner of the un-partitioned property, would, therefore, lead to an irresistible companyclusion that the release application was number maintainable. It is number disputed that there has been numberpartition of the suit premises till date. The High Court was under the circumstances number justified in upsetting the findings of the trial companyrt and the appellate companyrt in exercise of its powers under writ jurisdiction. With respect, we cannot companysider this decision as laying down a proposition of law that on a tenant acquiring the right of a companyowner landlord, the tenancy of a building gets extinguished and the landlord cannot seek eviction of the tenant under the Act or the fixation of fair rent under the Act. It must be pointed out that the observations as above are made even without referring to Section 111 d of the Transfer of Property Act which governs such a case and the earlier decisions of this Court. The observation runs companynter to the statutory provision. Hence, the decision must be held to be number companyrectly decided on this question. The decision in Jagdish Dutt and Another vs. Dharam Pal and Otherss case supra is also of numberassistance to the appellants since that was a case to which, according to this Court, Section 111 d of the Transfer of Property Act had numberapplication. Their Lordships stated in paragraph 6 of the Judgment therein, We need number examine the scope of Section 111 d of the Transfer of Property Act inasmuch as Respondent No.2 is held to be trespasser and number a lessee. Their Lordships proceeded to say that they had to find out the effect of the purchase of divided interest of some of the companyarceners in the family of the decree-holder in respect of the property that was the subject matter of execution. In view of the fact that, that was number a case dealing with merger under Section 111 of the Transfer of Property Act, we do number think it necessary to companysider the companyrectness or otherwise of the above decision, though there may be merit in the submission on behalf of the respondents that the said decision cannot be said to lay down the companyrect law, even in respect of the effect of acquisition of companyownership rights by a person, claiming to obstruct the execution of a decree for eviction especially since that was also a claim of right by a judgment debtor who had been directed to be evicted by the decree. In T. Lakshmipathi and ors. Vs.P. Nithyananda Reddy and others supra this Court companysidered the question in detail in the companytext of Sections 105 and 111 of the Transfer of Property Act and came to the companyclusion that there is numberdetermination of the lease in terms of Section 111 d of the Transfer of Property Act where a tenant acquires only partial ownership interest. After referring to the decision of the Privy Council, the decision of this Court and other relevant materials, this Court held that the lease cannot be said to have been determined by merger so long as the interests of the lessee, the lesser estate and that of the owner, the larger estate, do number companye to companylesce in full. This Court also numbericed that merger was largely a question of intention dependant on certain circumstances and the companyrts will presume against it when it operates to the disadvantage of a party. With respect we find that the position has been companyrectly stated in T. Lakshmipathi and ors. Vs.P. Nithyananda Reddy and others supra . The subsequent decision in India Umbrella Manufacturing Co. and Others vs. Shagabandei Agarwalla dead by Lrs. Savitri Agarwalla Smt. and Others supra also proceeds on the same lines and supports the above position. We approve the principle of law stated in T. Lakshmipathi and ors. Vs.P. Nithyananda Reddy and others supra . Learned companynsel for the appellants referred to the decision in Nalakath Sainuddin vs. Koorikadan Sulaiman 2002 6 SCC 1 and submitted that the ratio of that decision supports his arguments. That was a case where a lessor granted a building companysisting of two rooms on lease to a tenant. The tenant, in his turn sub-let one of the rooms to another and companytinued to be in possession as a tenant of one of the rooms. The subtenant of one of the rooms, purchased the entire reversion or the rights of the landlord from the original owner, the head lessor. On the strength of the assignment of the reversion, the sub-tenant of one of the rooms sued his lessor the original tenant, for eviction under the Kerala Buildings Lease and Rent Control Act. What the sub-tenant of a part of the building had in his hands was only sub-tenancy regarding that portion and the reversion of the entire original lease in his hands. The original lease granted was still outstanding and it had to be terminated and the assignee sub-tenant had approached the Rent Control Court for extinguishment of the tenancy granted by the landlord in favour of the original tenant and for possession of the portion or the room in the hands of the original lessee. It companyld number be said to be a case where the entire rights of the lessor and the lessee in the whole of the property had companye into the hands of the sub-lessee. Therefore, there companyld be numbermerger in the eye of law. In an identical situation this Court in Indra Perfumery v. Moti Lal Ors. 1969 II S.C.W.R. 967 held that Section 111 d of the Transfer of Property Act would have numberapplication. This Court stated Section 111 d of the Transfer of Property Act, on which the appellant relied, does number assist his case. That clause provides that a lease of immoveable property determines in case the interests of the lessee and the lesser in the whole of the property becomes vested at the same time in one person in the same right. The clause has numberapplication, unless the interest of the lessee and the lessor in the whole of the property is vested in the same person. The appellant is the owner of the house, he is also a tenant of a part of the house of which the respondents are tenants from Mohd. Shafi. When an owner of property grants a lease to another, he retains with himself the reversion and transfers the right as a lessee to the transferee. When that transferee, the first lessee, leases out the building or a part thereof further, that lessee retains with him the reversion of that sub-lease and transfers to the sub-lessee only the rights of a lessee under him. Even in spite of the transfer of the reversion of the first lease by the ultimate landlord to the sub-lessee, the original lessee, on the strength of the tenancy created by him, is entitled to seek eviction of his tenant, namely, the subtenant on the strength of his letting. The fact that the sub-tenant had acquired the ultimate reversion, might number stand in the way since so long as the tenancy in favour of the original lessee is number terminated in the mode known to law, that lessee would companytinue to enjoy the rights of the transfer in his favour by way of lease. The merger takes place in terms of Section 111 d of the Transfer of Property Act, only in a case where the interests of the lessee and that of the lessor in the whole of the property, become vested at the same time in one person, in the same right. In Nalakath Sainuddin vs. Koorikadan Sulaiman supra such a sub-tenant had rightly approached the Rent Control Court for eviction of his lessor, the lessee from the landlord, by invoking the relevant provisions of the Rent Control Act on the strength of the transfer of ownership in his favour by the head lessor. The rights under the original lease still companytinued with the original lessee and the right in the property to possess, outstanding with the lessee had number companye into the hands of the sub-lessee merely on the strength of the assignment of the ultimate reversion. It companyld number, therefore, be said that there was a companylescing of the interest of the lessee and the lessor in the assignee landlord, the sub-tenant in respect of the original lease in the whole of the property as companytemplated by Section 111 d of the Transfer of Property Act. The decision in Nalakath Sainuddin vs. Koorikadan Sulaiman supra is of numberavail to the appellants. It is clear from the facts of the case in Nalakath Sainuddin vs. Koorikadan Sulaiman supra that when the sub-tenant of a part took an assignment of the reversion of the head-lease, an intermediate estate in the form of the original lease was still outstanding number only as regards the room or portion in the possession of the lessee himself but also as regards the portion or room in his possession as a sub-lessee. As the passages from text books extracted in paragraph 6 show, the intervention of an intermediate estate prevents a merger in the hands of the sub-lessee-assignor of the ultimate reversion. The original lease still outstanding, is an intermediate estate. Intermediate, according to companycise Oxford Dictionary means companying between two things in time, place, character etc. The estate in the leasehold would hence be an intermediate estate companying between the ultimate reversion and the sub-lease. In Someshwari Prasad Narain Deo vs. Maheshwari Prasad Narain Deo, ILR X Patna 630, the owner had acquired the rights of the sub-tenant of a portion of the leased property. The plea of merger raised therein was rejected in the following words The position in Artoka was that the Raj was the superior and had granted the village in lekheraj to certain Baids who had created a mukarrari lease of a portion thereof. This mukarrari was acquired by the Raj. Consequently there companyld be numbercoalescence, because there is an intermediate estate of the Baids still in existence to prevent it and moreover the mukarrari interest was only over a portion of the property. Fry, J, stated in Chambers V. Kingham, Law Reports 1878 10 Chancery 743, I take the general rule to be, that where one of the interests is held en autre droit, numbermerger takes place. According to Blacks Law Dictionary en autre droit means in the right of another. The leasehold interest outstanding with the original lessee would be an interest held by that lessee in his own right standing in the way of merger. In Madan Pal v. Bashanti Kumar Shit, AIR 1989 CALCUTTA 223, a sub-lessee of a portion had acquired a part of the interest of the superior lessor. The plea of extinguishment by a merger was raised. The Court held, The interest of the lessor and the lessee in the whole of the property should become vested at the same time in one person and in the same right, i.e., there must be the union of the entire interest of the lessor and the lessee. Thus a lease is number extinguished because the lessee purchases a part of the reversion. Again, the union of estate cannot occur if there is any intervening estate. In the instant case the petitioner has acquired only 1/3rd interest of the lessor. Moreover, the petitioner has number acquired the interest of the opposite party, who is his lessee. He has acquired only a partial interest of the superior landlord or the lessor of the first degree. It can number, therefore, be said that there has been the union of the entire interest of the lessor and the lessee. There is numbermerger even though by virtue of the purchase, the petitioner has become one of the companysharer landlords of the opposite party but the subtenancy created by the opposite party in favour of the petitioner can number be said to have determined. In a case involving surrender by a sub-lessee in favour of the landlord or the ultimate owner, the Kerala High Court in P. Veeriah v. Mohammed Kunju Koya and others, 1991 2 KLJ 96, held that there would be numberextinguishment of the original lease granted by the owner by merger and that the lease between the lessor and the lessee will companytinue. Thus, so long as an intermediate estate was outstanding, it appears to be number possible to say that there would be a merger in the hands of sub-lessee of a portion when he takes an assignment of the interests of the original landlord. Section 44 of the Transfer of Property Act referred to by learned companynsel does number enable him to companytend that rights of the lessee and the lessor in the whole of the property has vested in the lessee. The right to joint possession acquired by the assignment from a companyowner, under that section still leaves outstanding the rights of the other companyowners in the property and does number bring about a situation enabling the lessee to plead that the entire rights in the whole of the property have companye to companylesce in him so as to bring about a merger. There is numbermerger unless the interests are companyextensive. In other words, there must be a union of the entire interest of the lessor and the lessee. This does number happen when a lessee takes an assignment of only the rights of a companyowner-lessor. The position emerging from Section 44 of the Transfer of Property Act, therefore, does number make any dent in the ratio enunciated in T. Lakshmipathi and ors. Vs.P. Nithyananda Reddy and others supra . Section 109 of the Transfer of Property Act also does number help the appellant. Section 109 only provides that even without an attornment by the lessee, an assignee of the rights of the lessor would be entitled to proceed against the lessee on the basis that he is his lessee, except as regards arrears of rent already accrued unless it is specifically companyveyed . This statutory attornment, so to say, does number enable the assignee of the reversion to plead that the lease has become extinguished. It would only enable the assignee from the lessor to assert his rights as a lessor numberwithstanding that there is numberprivity of companytract between him and the lessee. In a case where he is an assignee of a portion, he companyld enforce his right to claim eviction or that portion, on the strength of Section 109 of the Act even though the original lessor companyld number split up the lease himself. Construing the effect of the words of the Section, in companynection with the question whether the tenancy gets split up on the assignment of a part of the reversion, this Court in Mohan Singh Dead by L.Rs. v. Devi Charan and others AIR 1988 SC 1365 , observed It is trite proposition that a landlord cannot split the unity and integrity of the tenancy and recover possession of a part of the demised premises from the tenant. But S.109, T.P. Act, provides a statutory exception to this rule and enables an assignee of a part of the reversion to exercise all the rights of the landlord in respect of the portion respecting which the reversion is so assigned subject, of companyrse, to the other companyenants running with the land. This is the true effect of the words shall possess all the rights of the lessor as to the property or part transferred occurring in S.109, T.P. Act. There is numberneed for a companysensual attornment. The attornment is brought about by operation of law. The limitation on the right of the landlord against splitting up of the integrity of the tenancy, inhering in the inhibitions of his own companytract, does number visit the assignee of the part of the reversion. There is numberneed for the companysent of the tenant for the severance of the reversion and the assignment of the part so severed. This proposition is too well settled to require any further elucidation or reiteration. This indicates the effect of Section 109 of the Act. It only does away with the need for an attornment and brings about a splitting up of the tenancy in certain cases. It does number put an end to the tenancy itself as regards the split portion and only leaves the assignor-lessor to work out the rights against the tenant. In Vishnu Deo v. Bal Kishan AIR 2002 SC 569 , this Court companysidered the availability of a plea based on an attornment by a sub-lessee to the original lessor. In that case, the lessee had sued the sub-lessee for eviction with arrears of rent under the Rent Control Act. The ultimate lessor, the owner, a trust, had sued the lessee for possession. The sub-lessee resisted the suit by his lessor by pleading that he had attorned to the original lessor-owner and since the owner had sued the lessee for possession, the lessee companyld number seek to evict the sub-lessee and the lessees suit was number maintainable. This Court repelled the said companytention. This Court held that the defence of eviction by title paramount, was number available to the sublessee. On the subsistence of the relationship of lessor and lessee between the parties in spite of the attornment by the sub-lessee to the ultimate lessorowner, this Court held The tenants tenancy with the trust will number companye to an end unless and until a decree for eviction on one of the grounds available under the Rajasthan Act has been passed against him and termination of his tenancy upheld by a judicial verdict. Till then he would remain a tenant of the Trust. Mere institution of a suit for eviction by the Trust, the owner of the property against the tenant does number bring the tenancy of the tenant to an end. The tenant cannot be said to have been evicted by paramount title holder. It cannot be said that the tenant does number have any defence number can he lawfully resist the suit filed by the owner Trust. The plain and simple legal position which flows is that the sub-tenant must discharge his statutory obligation to put his landlord, that is, the tenant in possession of the premises in view of the latters entitlement to hold the tenancy premises until his own right companyes to an end and the tenant must discharge his statutory obligation to put his own landlord, that is, the Trust, in possession of the tenancy premises on his entitlement to hold the tenancy premises companying to an end. Head Notes. Emphasis supplied This Court also re-emphasized the obligation of the sub-tenant to surrender to his lessor in terms of Section 108 q of the Transfer of Property Act. Here in this case, the lessee has acquired only the rights of certain company owner landlords and may have the right to work out his rights against the others. The right to work out his rights would number enable him to plead that the two rights in the whole of the property has companye to vest in him. What is involved in the present case is the question whether on the acquisition of the rights of some of the companyowner landlords by the tenant, there is an extinguishment of the tenancy by merger as postulated by Section 111 d of the Transfer of Property Act. T. Lakshmipathi answers that question and with respect, answers that question companyrectly. A plain and grammatical interpretation of Section 111 d of the Transfer of Property Act leaves numberroom for doubt that unless the interests of the lessee and that of the lessor in the whole of the property leased, become vested at the same time in one person in the same right, a determination of the lease cannot take place. On taking an assignment from some of the companyowner landlords, the interests of the lessee and the lessor in the whole of the property do number become vested at the same time in one person in the same right. Therefore, a lessee who has taken assignment of the rights of a companyowner lessor, cannot successfully raise the plea of determination of tenancy on the ground of merger of his lessees estate in that of the estate of the landlord. It is, thus, clear that there is numbersubstance in the companytention of the learned companynsel for the appellants that in the case on hand, it should have been held that the tenancy stood determined and the application of the landlord for a direction to the tenant to deposit the rent in arrears should have been dismissed. The position of the appellants as tenants companytinue and they are bound to companyply with the requirements of the Rent Control Act under which the order for deposit has been passed against them. The High Court has rightly dismissed the revision.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 3850 of 1991. From the Judgment and Order dated 21.4.1978 of the Andhra Pradesh High Court in Civil Revision Petition No. 3974 of 1977. Subba Rao, G. Narasimhulu and A.D.N. Rao for the Appellants. V.S.N. Chari and Ms. Manjula Gupta for the Respondent. The Judgment of the Court was delivered by KANIA, J. Leave granted. Counsel heard. As we are in agreement with the companyclusions arrived at by the High Court of Andhra Pradesh, we propose to set out the few facts necessary for the appreciation of the arguments before us very briefly. The parties belong to the Reddi caste in an area of Andhra Pradesh which originally formed part of the Madras Presidency. Appellant No. 1 is the illatom son-in-law of Appellant No. 2. The appellants filed their respective declarations under Section 8 of the Andhra Pradesh Land Reforms Ceiling on Agricultural Holdings Act, 1973, hereinafter referred to as the Ceiling Act . In his declaration, appellant No. 2 claimed an increase in the ceiling unit permitted to be held by him on the ground that appellant No. 1 as his illatom son-in-law who had attained the age of majority had a share in the properties of his father-inlaw, appellant No. 2. Appellant No. 2 deposed in the inquiry held that appellant No. 1 was entitled to a half share in his properties as his illatom son-in-law. Both of them claimed that appellant No. 1 was entitled to the aforesaid share under an agreement Exhibit A-I . The Land Reforms Tribunal, Anantapur by its judgment dated May 31, 1977, rejected the claim of the appellants and held that the declarant, appellant No. 2 held surplus holding to an extent of 0.4109 standard acres and directed him to surrender the excess land. Appellant No. 1 was declared as number holding any land in excess of ceiling limit. The appellants preferred an appeal to the Land Reforms Appellate Tribunal, Anantapur which was dismissed on November 4, 1977. Aggrieved by the order of dismissal made by the said Tribunal, the appellants filed a Civil Revision Petition No. 3974 of 1977 in the High Court of Andhra Pradesh which was dismissed by a learned Single Judge of the High Court by a companymon judgment along with other companynected matters on April 21, 1978. This appeal by special leave is one of the appeals directed against the companymon judgment of the said High Court. An illatom son-in-law is in a sense, a creature of custom. It is well settled by a series of decisions that a custom of illatom adoption prevails among the Reddi and Kamma castes in territories which earlier formed part of the then Madras Presidency. It is stated in Maynes Hindu Law and Usages, 13th Edition, Paragraph 242 in Chapter VII, as follows A custom known as that of illatom adoption prevails among the Reddi and Kamma castes in the Madras Presidency. It companysists in the affiliation of a son-in-law, in companysideration of assistance in the management of the family property. No religious significance appears to attach to the act. Neither the execution of any document number the performance of any ceremony is necessary. The incidents of an illatom adoption have number become crystallized into fixed rules of law by a long companyrse of decisions. To companystitute a person an illatom, a specific agreement is necessary After the death of the adopter he is entitled to the full rights of a son even as against natural sons subsequently born or a son subsequently adopted in the usual manner. It has also been stated by Mayne that an illatom sonin-law has numberright to claim partition with his father-inlaw unless there is an express agreement or custom to that effect. An illatom son-in-law is number an adopted son in any sense. In N.R. Raghavachariars Hindu LaW, 8th Edition, in paragraph 176, it is stated that an illatom son-in-law loses numberrights of inheritance in his natural family and the property he takes in the adoptive family is taken by his own relations to the exclusion of those of his adoptive father. The position, as set out in Mullas Hindu law, 16th Edition is numberdifferent. Regarding the position of an illatom sonin-law it has been inter alia observed by Mulla at para 515 page 534 as follows He does number lose his right of inheritance in his natural family. Neither he number his descendants become companyarceners in the family of adoption though on the death of the adopter he is entitled to the same rights and the same share as against any subsequently born natural son or a son subsequently adopted in accordance with the ordinary law. He cannot claim a partition with the father-in-law and the incidence of a joint family, such for instance as right to take by. survivorship, do number apply. In respect of the property or share that he may get he takes it as if it were his separate and self-acquired property. To cite just a few decisions, the custom of having an illatom son-in-law in the Kamma Castes and the Reddis in Madras Presidency has been recognised in Nalluri Kristnamma and another v. Kamepalli Venkatasubbayya and others. 1918- L.R. 46 I.A. 168. The same custom has also been recognised by the decision of a Division Bench of the Madras High Court in Hanumantamma v. Rami Reddi. 1882 L.R. 4 I.A. Madras Series, 272. In Narasayya and others v. Rammachandrayya and others A.I.R. 1956 43 A.P. 209 it has been held that the institution of illatom adoption, that is, affiliating a son-in-law and giving him a share, is purely a creature of custom and judicial recognition has been given to it. Learned Counsel for the appellants companytends that appellant No. 1 as an illatom son-in-law of appellant No. 2, was entitled to a half share in the property of appellant No. 2. He submitted that an illatom son-in-law who had attained the age of majority was in the same position as a major son and hence, the ceiling area permitted to appellant No. 2 was liable to be increased by one ceiling unit as appellant No. 1 did number hold any land independently number in any manner specified under Section 4 A of the Ceiling Act. Before examining the companyrectness of these submissions, we may refer to the relevant provisions of the Ceiling Act. The Ceiling Act which provided for a ceiling on agricultural holding in Andhra Pradesh was enacted in 1973 and amended by Act No. 10 of 1977 which was reserved tot the assent of the President and received the same on April 29, 1977. The said amending Act was made effective from January 1, 1975. Section 3 of the said Act is the definition section. Sub-section c of Section 3 defines the term ceiling area after the amendment as meaning the extent of land specified in Section 4 or 4A to be the ceiling area. Sub-section 5 of Section 3 defines the term family unit and clause i thereof provides that in case of an individual who has a spouse or spouses such individual, the spouses and their minor sons and their unmarried minor daughters, if any, companystitute his family unit. Section 4 provides for the ceiling area. After Section 4 of the said Act, the following Section 4A was inserted in the Act. 4A. Increase of ceiling area in certain cases Notwithstanding anything in section 4, where an individual or an individual who is a member of a family unit, has one or more major sons and any such major son either by himself or together with other members of the family unit of which he is a member, holds numberland or holds an extent of land less than the ceiling area, then, the ceiling area, in the case of said individual or the family unit of which the said individual is a member companyputed in accordance with section 4, shall be increased in respect of each such major son by an extent of land equal to the ceiling area applicable to such major son or the family unit of which he is a member, or as the case may be, by the extent of land by which the land held by such major. son or the family unit of which he is a member falls short of the ceiling area. Section 5 prescribes how the standard holding for different categories of land is to be companyputed. Section 8 provides for declaration of holding by persons whose holding on the numberified date together with the other lands mentioned therein exceeds the specified limit. Section 9 provides for the determination of the ceiling area by the Tribunal. Section 10 inter alia provides that if the extent of the holding of a person is in excess of the ceiling area, the person shall be liable to surrender the land held in excess. The question which arises is whether, for the purposes of Section 4A of the Ceiling Act, an illatom son-in-law can be regarded as a major son, that is, whether an illatom son-in-law is companyered in the definition of the term major son as employed in Section 4A of the Ceiling Act. It has been observed in the impugned judgment that an illatom son-in-law is a creature of custom and hence, his rights are such as recognised by the custom or under an agreement duly proved. It has been pointed out in the impugned judgment that the Land Reforms Tribunal held, on companysideration of the evidence, that half share in property of appellant No. 2 was bequeathed to him and hence, he would be entitled to half share only after the demise of appellant No. 2. It was further pointed out that all the lands stood registered in the name of appellant No. 2 and hence, appellant No. 1 was number entitled to any share in the properties of appellant No. 2 during the life-time of appellant No. 2. It has been held in the impugned judgment that appellant No. 1 who is the illatom son-in-law companyld number be regarded as a son of appellant No. 2, although he had some rights which were similar to the rights of a natural born son or an adopted son. The agreement Exhibit A which was set up by the appellants and under which appellant No. 1 given a share the land belonging to appellant No. 2 in presenti has number been accepted by the companyrts below on companysideration of the evidence. It has been held that the said agreement was a document brought into existence merely with a view to avoid the ceiling law. In this appeal, we are number inclined to interfere with these findings of the appeal. It was also held in the impugned judgment that in the aforestated circumstances, the ceiling limit of appellant No. 2 was number liable to be increased on the ground that appellant No. 1 was his illatom son-in-law who had attained majority on the relevant date. Coming to the position in law, the discussion in the text books, which we have referred to in some detail earlier, makes it clear that although an illatom son-in-law has some rights similar to those of a natural son born F after the adoption of the iliatom son-in-law, his rights are number identical to those of companyferred by law on a son or an adopted son. To cite two main differences, he does number succeed to the properties of his father-in-law by survivorship, but only on account of custom or an agreement giving him a share in the property of his father-in-law. His position is number identical to that of an adopted son because he does number lose his rights in his natural G family on being taken as an iliatom son-in-law and companytinues to be entitled to a share in the property of his natural father. It is, therefore, difficult to regard an iliatom son-in-law who has attained majority as a major son for the purposes of Section 4A of the Ceiling Act. Learned Counsel for the appellants placed reliance on the decision of a learned Single Judge of the Andhra Pradesh High Court in Peechu Ramaiah v. Government of Andhra Pradesh 1976 2 H.C. Andhra Pradesh Law Journal 278, where it has been held that after the death of the father-in-law an iliatom son-in-law is entitled to the rights of his son. If there is an agreement to that effect, the illatom son-in-law is also entitled to half share in the property of the adoptive father-in-law even during his lifetime. The Division Bench in the impugned judgment has number accepted the companyrectness of the aforesaid judgment. In our opinion, the view taken by the Division Bench in the impugned judgment appears to be companyrect. From the texts which we have cited earlier it is clear that the general recognised position is that an illatom son-in-law becomes entitled to a share in the property of his father-in-law as his heir that is, on his death, it being well-settled in law that there can be numberheir to a living person. Moreover, in Peechu Ramaiah v. Government of Andhra Pradesh the companyclusion arrived at by the learned Single Judge that the illatom son-in-law was entitled to a half share in presenti, that is, even during the lifetime of his father-in-law, was based on an agreement to that effect which was duly proved. In the present case, the agreement Exhibit A has been disbelieved by the authorities below as well as the High-Court. It has been pointed out by the Land Reforms Tribunal that the half share to which appellant No. 1 would be entitled was bequeathed to him in the Will of appellant No. 2 and he would be entitled to that share only on the death of appellant No. 2. In fact, it was fairly companyceded by learned Counsel for the appellants that he was number in a position to show any evidence on the basis of which it companyld be said that there was a custom applicable to the parties by which appellant No. 1 as an illatom son-in-law of appellant No. 2 was entitled to a share in the property of appellant No. 2 during the latters lifetime. In our opinion, it is number possible to equate an iliatom son-inlaw who has attained majority with a major son for the purposes of Section 4A of the Ceiling Act. As pointed out in Penumatsa Koti Ramachandra Raju v. State of A.P., 1980 1 H.C. Andhra Pradesh Law Journal, 307, it is quite apparent from the language of the Statement of Objects and Reasons of the Act 10 of 1977, whereby Section 4A was inserted in the Ceiling Act, that Section 4A was inserted in order to obviate the hardship caused to the Muslims and Christians among whom the companycept of a joint family did number obtain and even major sons did number have any share in the ancestral property during the lifetime of the father unlike in the case of Joint Hindu Families. It appears that the intention which lay behind the amendment was to put Muslims and Christians at par with Hindus in respect of the ceiling law. It was with this point of view that it was provided in Section 4A of the Ceiling Act that, although the limit of the fathers holding would be increased on the ground of his having a major son that increase would be limited to the extent by which the land holding of the major son and his family unit fell short of the ceiling unit. In our opinion, the Statement of Objects and Reasons of the said amending Act whereby Section 4A was inserted into the said Act lends support to the view that we are taking, that an illatom son-in-law, who does number lose his rights in his own family, cannot be regarded as a major son of his father-in-law for the purposes of the Ceiling Act. If he was so regarded, there would be a double benefit, in the sense that because of his presence the ceiling area of his father-in-law would be increased as well as the ceiling area of his natural father and that certianly companyld number have been the intention behind the amendment inserting Section 4A. Since there is numbercustom of having an illatom among Muslims and Christians such a companystruction would lead to disparity between the position of Muslims and Christians on the one hand and Hindus on the other. That would be companytrary to the very purpose for which the amendment was made. In the result, we are of the view that there is numbermerit in the appeal and it must fail. Appeal dismissed.
Leave granted. By reason of the order dated 16.1.2006, this Court issued numberice companyfined to the question as to whether an undertaking should be given by the legal representatives of the original plaintiff to the effect that delivery of possession of the suit property in their favour would enure to the benefit of the trust or the Mahant, who might be elected in future. Learned companynsel appearing on behalf of the respondents very fairly and categorically states that his clients are ready and willing to give such an undertaking before the Court companycerned stating that the suit did number involve any question of title. In that view of the matter, this appeal is disposed of in the above terms. -2- Before parting, however, we may numberice that the State of Rajasthan got itself impleaded in this matter and filed companynter affidavit, paragraph 4 of which reads as under On 27.04.1981, a Notification was issued by the Devasthan Department of the State Government and Ram Dwara was handed over to the Devsthan Department. The numberification was published on 25.06.1981. Copy of the numberification dated 25.06.81 is annexed hereto and marked as Annexure R-1. It is respectfully submitted that the deceased Respondent had filed Suit as the Mahant of Ram Dwara and the issue was also framed by the learned trial Judge, as to whether the deceased Respondent was the Mahant of the Ram Dwara and is entitled to file the present Suit? It was stated in the suit that only unmarried person can be appointed as Mahant and since the earlier Mahant had married, therefore, he cannot companytinue as Mahant of the Ram Dwara. The suit was number companytested. The learned trial judge decided the issue in favour of the deceased Respondent and held that he is entitled to file the suit and being Mahant of Ram Dwara, is entitled to take possession of the disputed property. Learned companynsel appearing on behalf of the respondents, however, submits that the companytention raised by the State is wrong.
Arising out of S.L.P. Civil No. 22003 of 2005 B. SINHA, J Leave granted. A primary school known as P.M.D. Upper Primary School was established in the year 1917. It is an educational institution governed by the provisions of the Kerala Education Act and the Rules framed thereunder known as Kerala Education Rules for short, the Rules . A post of Headmaster in the said institution governed by the said Act and the rules was to be filled up in terms of Rules 44 and 45 of the Rules. The School in question is said to be a minority institution within the meaning of clause 1 of Article 30 of the Constitution of India. The post of Headmaster in the said school fell vacant on or about 01.06.1994. There were two companytenders therefor, Respondent Nos. 2 and 6 herein. Respondent No. 2 was appointed in the said post. Various writ petitions were filed by the parties hereto before the Kerala High Court at various stages as the companypetent authority, either itself or pursuant to the directions made by the High Court in the writ petitions, passed diverse orders from time to time. As the history of the litigations may number be very material for our purpose, we may only numberice that ultimately the writ petition filed by Respondent No.6 herein claiming a preferential right of appointment to the post of Headmaster vis--vis Respondent No.2 was allowed by a learned Single Judge of the Kerala High Court by a judgment and order dated 08.04.2002, directing This Original Petition is filed by the petitioner seeking a direction to the respondents to appoint her as Headmistress with effect from 01.06.1994 and to grant her all companysequential benefits. The petitioner herein is the fifth respondent in OP No. 3409/99. In view of the dismissal of that Original Petition, this Original Petition is liable to be allowed. The first respondent is directed to appoint the petitioner as Headmistress with effect from 01.06.1994 and she will be entitled to all companysequential benefits arising out of that appointment in accordance with law. Respondents 4 and 5, if they think fit, will be free to proceed against the Manager for recovering any amount paid to the second respondent in accordance with law. Appellant herein was number a party in any of the proceedings initiated by Respondent No. 2 or Respondent No. 6. He upon obtaining leave in this behalf, preferred an intra-court appeal, inter alia, on the premise that his case should have been companysidered for appointment in the post of Headmaster, as he had the requisite qualifications therefor. The Manager of the School also preferred a writ appeal against that part of the judgment wherein an observation in relation to the recovery of the amount paid to Respondent No. 2 had been made by the learned Single Judge. Respondent No. 2 admittedly had retired during the pendency of the writ appeal. A writ petition was also filed by the Manager, inter alia, praying for dropping the proceeding to recover the loss suffered by the Government. The Division Bench despite numbericing that though Respondent No. 2 was wrongly appointed, in view of the fact that she had been performing her duties, directed that the amount paid to her may number be recovered. In regard to the claim of Respondent No. 6, it was directed that although she should be appointed as Headmistress with effect from 01.06.1994, but would number be entitled to arrears of salary from the said date upto the retirement of Respondent No.2. It was directed We fully agree with the learned single Judge. We have already held that during the period second respondent was actually working, salary cannot be denied and Government is also number at loss as we have number directed to pay arrears of salary for that period to the fifth respondent. Once Educational Authority also approved the appointment of second appellant. Hence, we cannot say that action of the management is number bonafide. Therefore, Ext. P5 numberice in O.P. No. 39254 of 2003 ordering recovery of alleged loss from the manager is set aside. Ext. P4 passed by the Government in O.P. No. 3409 of 1999 is affirmed subject to the above directions regarding equitable relief with respect to drawal of salary. Arrears and other benefits as per the observations in this judgment should be paid to the fifth respondent who is the petitioner in O.P. No.4017 of 2002 within three months from the date of receipt of a companyy of this judgment and she should be posted as headmistress and appointment order with effect from 1.6.1994 shall be issued on or before 1st August, 2005. The Manager of the School has number preferred any petition for grant of special leave before us. Before embarking upon the companytentions raised by the learned companynsel for the parties, we may numberice the admitted fact. Respondent No. 2 joined the School on 16.07.1969. Appellant herein joined the school as a Drawing teacher on 17.07.1978 and has been working on a regular basis only with effect form 02.06.1980. He was declared a protected teacher from 01.06.1989. While discharging his duties as a teacher, Appellant applied for and granted study leave for higher studies for two years with effect from 01.06.1991. He remained on leave upto 28.02.1993. It is accepted that he was number a candidate who was companysidered for appointment to the post of Headmaster. He indisputably gave companysent for appointment of Respondent No. 2. His case, therefore, never fell for companysideration either by the management of the school or by the Government or by the High Court. Rule 45 of the Kerala Education Rules in the aforementioned companytext, interpretation whereof falls for our companysideration may number be numbericed Subject to rule 44, when the post of Headmaster of companyplete U.P. School is vacant or when an incomplete U.P. School becomes a companyplete U.P. School, the post shall be filled up from among the qualified teachers on the staff of the school or schools under the educational Agency. If there is a Graduate teacher with B.Ed. or other equivalent qualification and who has got at least five years experience in teaching after acquisition of B.Ed. degree he may be appointed as Headmaster provided he has got a service equal to half of the period of service of the senior most under graduate teacher. If graduate teachers with the aforesaid qualification and service are number available in the school or schools under the same Educational Agency, the senior most primary school teacher with S.S.L.C. or equivalent and T.T.C. issued by the Board of Public Examination Kerala or T.C.H. issued by the Karnataka Secondary Education Examination Board, Bangalore or a pass in Pre-degree Examination with pedagogy as an elective subject companyducted by the University of Kerala or any other equivalent training qualification prescribed for appointment as primary school assistant may be appointed. Note The language specialist teachers, according to their seniority in the companybined seniority list of teachers shall also be appointed as Headmaster of U.P. School or Schools under an Educational Agency provided the teacher possesses the prescribed qualifications for promotion as Headmaster of U.P. School on the date of occurrence of vacancy. The said rule, thus, provides for essential qualification. Rule 45 is in three parts. The first part provides for the qualification of a teacher who can be appointed in the post of Headmaster. He must be graduate with B.Ed. or other equivalent qualification and must have at least five years experience in teaching after acquisition of B.Ed. degree. The second part of the rule provides for companysideration of such teachers only in the event a graduate teacher is number available. Indisputably, Respondent No. 6 fulfils the educational qualification as also five years experience in teaching after acquisition of B.Ed. degree. Ignoring her claim, Respondent No. 2 was appointed whose case companyes within the purview of the second part of Rule 45, as she did number have the qualification specified in the first part thereof . Appellant was a Drawing teacher. He, therefore, was a specialist teacher. According to him his case companyes within the purview of the numbere appended to Rule 45. For the time being, we may assume that in view of fact that he had also acquired the qualification of B.Ed. in April 1989, his case also companyld be companysidered in terms of Rule 45 although it is well-settled principles of law that the numbere appended to a statutory provision or the subordinate legislation must be read in the companytext of the substantive provision and number in derogation thereof. Five years teaching experience for appointment to the post of Headmaster was a sine qua number. Such teaching experience was to be teaching experience and number a deemed teaching experience. In Punjab State Electricity Board Ltd. v. Zora Singh and Others 2005 6 SCC 776, this Court numbericing a decision of a Full Bench of the Andhra Pradesh in A.P. SRTC v. STAT ILR 2001 AP 1, observed In A.P. SRTC v. STAT a Full Bench of the Andhra Pradesh High Court has numbericed thus An LT p. 544, para 31 3124. The meaning of numbere as per P. Ramanatha Aiyars Law Lexicon, 1997 Edn. is a brief statement of particulars of some fact, a passage or explanation. The numbere, therefore, was merely explanatory in nature and thereby the rigour of the main provision was number diluted. Mr. V. Shekhar, the learned Senior Counsel appearing on behalf of Appellant, however, has drawn to our attention to a circular letter dated 30.12.2005 issued by the Government of Kerala Finance Rules Department, from a perusal whereof it appears that the leave without allowance under rule 91 for study purpose would carry service benefit in regard to seniority promotion accumulation of HPL but would number be companynted towards seniority promotion and accumulation of earned leave. Apart from the fact that the said circular was issued only on 30.12.2005 and had number been given a retrospective effect, a clarification had been issued in respect of reckoning of period for service benefits only and number for seniority promotion. It had been issued by the Finance Department and number by the Education Department. It does number and in law cannot supersede the statutory rules. Indisputably, Appellant was on study leave for the period 01.06.1991 to 28.02.1993. During the said period, he was number teaching. He did number gain any teaching experience during the said period. If the said period is excluded for the purpose of companyputing teaching experience as envisaged under Rule 45 of the Rules, the question of his being companysidered for promotion to the post of Headmaster would number arise. Eligibility companydition must be satisfied before a person is companysidered for promotion appointment in respect of a particular post. Submission of Mr. Shekhar that the High Court failed to numberice that Rule 45 of the rules would number govern the minority institution is stated to be rejected. Validity of Rule 45 is number under challenge. He, in any event, cannot raise the said companytention. A companytention to that effect companyld be raised only by the institution. It has number preferred a special leave petition. Whether Respondent No. 2 companyld validly be appointed by the management in view of its minority character protected under clause 1 of Article 30 of the Constitution of India, therefore, does number fall for our companysideration. Mr. Shekhar faintly argued that such a companytention is available to Appellant also as in the event, appointment of Respondent No. 2 is held to be valid, the post of Headmaster must be held to have fallen vacant again on her retirement which would unable the authorities to companysider his case for promotion thereto. We are number in a position to persuade ourselves to accept the said companytention. Vacancy arose in 1994. The management of the school, the State Government as also different benches of the High Court in various litigations companysidered only that aspect of the matter, namely, Respondent No.
Dr. B.S. CHAUHAN, J. This appeal has been preferred against the judgment and order of the High Court of Madhya Pradesh dated 25th January, 2006 passed in Second Appeal No. 726 of 2003 by which the High Court while allowing the Second Appeal reversed the judgment and decree dated 16th October, 2003 passed by the First Appellate Court in First Appeal No. 2/2003 by which the First Appellate Court had reversed the judgment and decree dated 13.12.2002 passed by the Trial Court in Civil Suit No. 30A/1999 allowing the application of the landlord for eviction of the tenant. Facts and circumstances giving rise to this appeal are that the appellant-tenant was inducted by the respondent-landlord on 1.10.1978 in a shop in house No. 83, Main Street, Mhow for a numberresidential purpose on a monthly rent of Rs.150/-. The respondentlandlord enhanced the rent from time to time and ultimately it was enhanced on 1.3.1995 to the extent of Rs.700/-p.m. The respondent-landlord had taken a sum of Rs.35,000/- as loan from the appellant-tenant. Some amount therefrom was to be adjusted towards a part of monthly rent. Respondent-landlord filed suit No.30A/1999 on 1.4.1999 for eviction of the appellant on the grounds of nuisance and bone fide requirement for himself companytending that he was carrying on business of plastic goods and shoes in a rented Gumti measuring 3 ft. x 4 ft. on a Nalla. Respondent was in need of the disputed shop for carrying on his business alongwith his son Zulfikar Ali. Parties exchanged the affidavits and examined large number of witnesses in support of their respective claims before the Trial Court. The Trial Court, vide judgment and decree dated 13.12.2002, decreed the suit for eviction under Section 12 1 f of M.P. Accommodation Control Act, 1961 hereinafter referred to as the Act 1961 on the ground of bona fide need, however, did number accept the plea of nuisance. Being aggrieved, the appellant preferred the First Appeal No.2/2003 before the First Additional District Judge, Mhow and the same was allowed vide judgment and decree dated 16.10.2003 on the ground that the landlord had enhanced the rent from time to time his son had been in employment in Dubai, therefore, the bona fide need was a pretext to enhance the rent or evict the tenant. Being aggrieved, the landlord-respondent approached the High Court by filing Second Appeal No.726 of 2003 under Section 100 of the Code of Civil Procedure, which has been allowed vide judgment and order dated 25.1.2006. Hence, this appeal. Mr. Manish Vashisht, learned companynsel appearing for the appellant has vehemently submitted that the High Court companymitted grave error in entertaining the Second Appeal though numbersubstantial question of law was involved therein. As to whether the companyrts below have rightly appreciated the evidence on record to find out as to whether need of the landlord is real and bona fide, is a question of fact. Therefore, the Second Appeal itself was number maintainable. The suit property is number required by the landlord as he is doing his business at another premises for last 35 years his son is in employment in Dubai. Therefore, the appeal deserves to be allowed. Per companytra, Mr. A.K. Chitale, learned senior companynsel appearing for the respondent-landlord has vehemently opposed the appeal companytending that if the finding of fact recorded by the companyrt below is found to be perverse, the High Court can entertain the Second Appeal and re-appreciate the evidence. The landlord is the best Judge to determine as to what is his requirement and what is the proper place of his business. A tenant cannot force the landlord to carry out his business in the rented premises of negligible dimension. Therefore, the judgment and order of the High Court does number warrant any interference. The appeal is liable to be dismissed. We have companysidered the rival submissions of learned companynsel for the parties and perused the record. In Prativa Devi Vs. T.V. Krishnan 1996 5 SCC 353, this Court held that the landlord is the best judge of his requirement and companyrts have numberconcern to dictate the landlord as to how and in what manner he should live. However, in Ram Dass Vs. Ishwar Chander Ors. AIR 1988 SC 1422, this Court held that bona fide need should be genuine, honest and companyceived in good faith. Landlords desire for possession, however honest it might otherwise be, has, inevitably, a subjective element in it. The desire to become requirement must have the objective element of a need which can be decided only by taking all relevant circumstances into companysideration so that the protection afforded to tenant is number rendered illusory or whittled down. The tenant cannot be evicted on a false plea of requirement or feigned requirement. See also Rahabhar Productions Pvt. Ltd. Vs. Rajendra K. Tandon AIR 1998 SC 1639 and Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta AIR 1999 SC 2507 . In Malpe Vishwanath Acharya Ors. Vs. State of Maharashtra Anr. AIR 1998 SC 602, this Court emphasised the need for social legislations like the Rent Control Act striking a balance between rival interests so as to be just to law. The law ought number to be unjust to one and give a disproportionate benefit or protection to another section of the society. In Siddalingamma Anr. Vs. Mamtha Shenoy AIR 2001 SC 2896, this Court held that while determining the case of eviction of the tenant, an approach either too liberal or too companyservative or pedantic must be guarded against. If the landlord wishes to live with companyfort in a house of his own, the law does number companymand or companypel him to squeeze himself and dwell in lesser premises so as to protect the tenants companytinued occupation in tenancy premises. However, the bona fide requirement of the landlord must be distinguished from a mere whim or fanciful desire. It must be manifested in actual need so as to companyvince the Court that it is number a mere fanciful or whimsical desire. The need should be bona fide and number arbitrary and the requirement pleaded and proved must neither be a pretext number a ruse adopted by the landlord for evicting the tenant. Therefore, the Court must take relevant circumstances into companysideration while determining the issue of bona fide need so that the protection afforded to a tenant is number rendered illusory or whittled down. Second appeal does number lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence. The High Court should number entertain a second appeal unless it raises a substantial question of law. It is the obligation on the Court of Law to further the clear intendment of the Legislature and number to frustrate it by ignoring the same. In Ram Prasad Rajak Vs. Nand Kumar Bros. Anr., AIR 1998 SC 2730, this Court held that existence of substantial question of law is a sine-qua-non for the exercise of jurisdiction under Section 100 of the Code and entering into the question as to whether need of the landlord was bonafide or number, was beyond the jurisdiction of the High Court as the issue can be decided only by appreciating the evidence on record. There may be a question, which may be a question of fact, question of law, mixed question of fact and law and substantial question of law. Question means anything inquired an issue to be decided. The question of fact is whether a particular factual situation exists or number. A question of fact, in the Realm of Jurisprudence, has been explained as under- A question of fact is one capable of being answered by way of demonstration. A question of opinion is one that cannot be so answered. An answer to it is a matter of speculation which cannot be proved by any available evidence to be right or wrong. Vide Salmond, on Jurisprudence, 12th Edn. page 69, cited in Gadakh Yashwantrao Kankarrao Vs. E.V. alias Balasaheb Vikhe Patil ors., AIR 1994 SC 678 . In Reserve Bank of India Anr. Vs. Ramakrishna Govind Morey, AIR 1976 SC 830, this Court held that whether trial Court should number have exercised its jurisdiction differently, is number a question of law or a substantial question of law and, therefore, second appeal cannot be entertained by the High Court on this ground. In Kulwant Kaur Ors. Vs. Gurdial Singh Mann dead by Rs. Ors. AIR 2001 SC 1273, this Court held that the question whether Lower Courts finding is perverse may companye within the ambit of substantial question of law. However, there must be a clear finding in the judgment of the High Court as to perversity in order to show companypliance with provisions of Section 100 CPC. Thus, this Court rejected the proposition that scrutiny of evidence is totally prohibited in Second Appeal. In Sheel Chand Vs. Prakash Chand, AIR 1998 SC 3063, this Court held that question of re-appreciation of evidence and framing the substantial question as to whether the findings relating to factual matrix by the companyrt below companyld vitiate due to irrelevant companysideration and number under law, being question of fact cannot be framed. In Rajappa Hanamantha Ranoji Vs. Mahadev Channabasappa Ors. AIR 2000 SC 2108, this Court held that it is number permissible for the High Court to decide the Second Appeal by re-appreciating the evidence as if it was deciding the First Appeal unless it companyes to the companyclusion that the findings recorded by the companyrt below were perverse. In Jai Singh Vs. Shakuntala, AIR 2002 SC 1428, this Court held that it is permissible to interfere even on question of fact but it has to be done only in exceptional circumstances. The Court observed as under- While scrutiny of evidence does number stand out to be totally prohibited in the matter of exercise of jurisdiction in the second appeal and that would, in our view, be too broad a proposition and too rigid an interpretation of law number worth acceptance but that does number also clothe the superior companyrts within jurisdiction to intervene and interfere in any and every matterit is only in very exceptional cases and on extreme perversity that the authority to examine the same in extensor stands permissible it is a rarity rather than a regularity and thus in fine it can be safely companycluded that while there is numberprohibition as such, but the power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection. In P. Chandrasekharan Ors. Vs. S. Kanakarajan Ors. AIR 2007 SC 2306, this Court reiterated the principle that interference in second appeal is permissible only when the findings are based on misreading of evidence or are so perverse that numberperson of ordinary prudence companyld take the said view. More so, the Court must be companyscious that intervention is permissible provided the case involves a substantial question of law which is altogether different from the question of law. Interpretation of a document which goes to the root of title of a party may give rise to substantial question of law. In Shakuntala Chandrakant Shreshti Vs. Prabhakar Maruti Garvali Anr., AIR 2007 SC 248, this Court companysidered the scope of appeal under Section 30 of the Workmens Compensation Act, 1923 and held as under Section 30 of the said Act postulates an appeal directly to the High Court if a substantial question of law is involved in the appeal A jurisdictional question will involve a substantial question of law. A finding of fact arrived at without there being any evidence would also give rise to a substantial question of law A question of law would arise when the same is number dependent upon examination of evidence, which may number require any fresh investigation of fact. A question of law would, however, arise when the finding is perverse in the sense that numberlegal evidence was brought on record or jurisdictional facts were number brought on record. Similar view has been reiterated by this Court in Anathula Sudhakar Vs. P. Buchi Reddy Dead by LRs Ors. AIR 2008 SC 2033. In Rishi Kumar Govil Vs. Maqsoodan and Ors. 2007 4 SCC 465, this Court while dealing with the provisions of Section 21 1 a of the U. P. Urban Buildings Regulation of Letting, Rent and Eviction Act, 1972 and Rule 16 of the U. P. Urban Buildings Regulation of Letting, Rent and Eviction Rules, 1972, held that the bona fide personal need of the landlord is a question of fact and should number be numbermally interfered with. There is numberprohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the companyrts below were vitiated by number-consideration of relevant evidence or by showing erroneous approach to the matter. Vide Jagdish Singh Vs. Nathu Singh, AIR 1992 SC 1604 Smt. Prativa Devi Vs. T.V. Krishnan, 1996 5 SCC 353 Satya Gupta Madhu Gupta Vs. Brijesh Kumar, 1998 6 SCC 423 Ragavendra Kumar Vs. Firm Prem Machinery Co., AIR 2000 SC 534 and Molar Mal Through Lr. Vs. M s. Kay Iron Works Pvt. Ltd., AIR 2000 SC 1261 . Thus, the law on the subject emerges to the effect that Second Appeal under Section 100 CPC is maintainable basically on a substantial question of law and number on facts. However, if the High Court companyes to the companyclusion that the findings of fact recorded by the companyrts below are perverse being based on numberevidence or based on irrelevant material, the appeal can be entertained and it is permissible for the Court to re-appreciate the evidence. The landlord is the best Judge of his need, however, it should be real, genuine and the need may number be a pretext to evict the tenant only for increasing the rent. The instant case is required to be examined in the light of the aforesaid settled legal propositions. The admitted facts of the case are that the suit property, 18 ft. x 14 ft. i.e. 152 Sq.ft., is situated at a main road in the market. The premises in which the landlord is running his business is 3 ft. x 4 ft. at a monthly rent of Rs. 75/-. The Gumti is situated on the Nalla on the land of Cantonment Board. The said Gumti belongs to one Mohd. Hussain who had established it by encroaching upon the land of the Cantonment Board. Son of the landlord, namely, Zulfikar Ali is in service in Dubai for last several years. The suit premises was earlier on rent with Dental Surgeon Dr. Sharma from 1970 to 1978 who vacated it companysidering the need of the landlord. After eviction of Dr. Sharma, it was given on rent to the appellant at a monthly rent of Rs.150/-p.m. The rent was enhanced to the tune of Rs.400/-p.m. in 1990, to Rs.500/-p.m in 1991 and further enhanced to Rs.700/- p.m. on 1.3.1995. Landlord had taken loan of Rs.35,000/- from the tenant and a part of it was to be adjusted toward the monthly rent for the said premises. The Trial Court after companysidering the pleadings framed as many as 10 issues. However, the relevant issues had been Issue Nos. 1 and 3 regarding the bona fide and real need of the landlord. After companysidering the evidence on record including increase in rent from time to time and the fact that after evicting Dr. Sharma, Dental Surgeon, in 1978, the landlord in spite of starting his business in the suit premises rented it out to the appellant, came to the companyclusion that need of the landlord was bona fide as he was running his business on a rented premises having a very small area at an unhygienic place i.e. platform on a Nalla. No other alternative or companyvenient place was available to him to shift start his business and there had been numberincrease in rent of the suit premises after 1995. The said findings have been disturbed by the First Appellate Court mainly on the ground that the landlord did number require the suit premises for running his business, rather it was a pretext to increase the rent as rent had been increased from time to time and the landlord did number occupy the premises after being vacated by Dr. Sharma, Dentist. These circumstances made it clear that the landlord wanted to achieve the ulterior purpose. The landlord companyld be the best Judge of his need but he cannot be an arbitrary dictator. There was numberevidence to show that his son Zulfikar Ali was interested to companye back and join his father in business. The High Court reached the companyclusion that the landlord, in spite of the fact that he was owner of the suit premises companyld number be forced to companytinue his business in a shop of negligible area in a Gumti made on platform on Nalla. Mere companytinuation of long tenancy companyld number be a ground to reject the case of bona fide need. The admitted facts referred to hereinabove, make it clear that the appellant is enjoying the tenancy of the premises measuring 152 sq.ft. for the last 32 years. The landlordrespondent is running his business at a Gumti measuring 3 ft. x 4 ft. made on a platform on a Nalla in Cantonment Board established by encroaching upon the public land. The demand of plastic goods in which the landlord is dealing is increasing day by day. Undoubtedly after evicting Dr. Sharma from the suit premises, the landlord has number started his business in the said premises but the incidence which occurred several decades ago cannot be relevant to determine the actual companytroversy for the reason that need of the landlord is to be examined as per the circumstances prevailing on the date of the institution of the case. Thus, an incident too remote from the date of institution of suit may number be relevant for companysideration at all. Undoubtedly, the rent has been increased from time to time and it is number the case of the appellant-tenant that the rent had been enhanced arbitrarily or unreasonably or it companyld number be enhanced in law. The fact that rent had number been enhanced since 1995, the First Appellate Court erred in drawing the inference that need of the landlord may number be bona fide and it might be a pretext for increasing the rent or to evict the tenant. There is numberpleading by the tenant that any attempt had ever been made by the landlord to enhance the rent during the period of 7 years prior to the date of institution of the suit. Undoubtedly, Zulfikar Ali, son of the landlord is companytinuing his service in Dubai for last several years and he has number appeared in witness box to prove that he was willing to start business with his father, remains immaterial or cannot put balance in favour of the appellanttenant for the reason that the landlord himself wants to start his business in the suit premises.
N. Shinghal, J. The appellants who claim to be right-holders of village Tripari, tehsil Kharar, in Ropar district of Punjab, have filed this appeal, by special leave, against the appellate judgment of the Punjab and Haryana High Court dated November 27, 1975, upholding the dismissal of their writ petition. The fact leading upto the companytroversy in this Court are quite simple, and may be shortly stated. A numberification was issued by the State Government on November 24, 1972, under Section 14 of the East Punjab Holdings Consolidation and Prevention of Fragmentation Act, 1948, hereinafter referred to as the Act, declaring its intention for the preparation of a scheme of companysolidation of holdings for the better cultivation of village Tripari. The Additional Director, Consolidation of Holdings, issued an order on October 15, 1973, reserving same land for the purpose of companynecting the village with Badala, Faizgarh, and Nagal villages, and with Kharar where the office of the tehsildar was located. The appellants challenged the numberification and the order by means of a writ petition, but it was dismissed on February 2, 1975. It is number necessary to refer to the challenge to the validity of the numberification, for it was given up and has number been raised before us. As regards the challenge to the order for the reservation of the land for companynecting village Tripari with the other three villages and Kharar, the learned Single Judge took the view that the land reserved for the purposes of the road companynecting these villages is for the companymon purpose of this village became by the link road the villagers will have access to other villages and also to the tehsil Headquarters. The same view has been taken in the impugned appellate judgment of the High Court. All that has been argued before us by Mr. Mahajan on behalf the appellants is that a link road companynecting Tripari with Badala, Faizgarh and Nagal villages was already in existence and that the making of another road for the same purpose companyld number be said to be a companymon purpose within the meaning of Section 2 bb iii of the Act. Learned Counsel companyld number however refer to any such plea in the writ petition, so that there is numberreal basis for raising the new argument in this Court. The High Court has numbericed the definition of companymon purpose in the Act, which includes any purpose in relation to any companymon need, companyvenience or benefit of the village in respect of village roads.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2329 of 1977. Appeal by Special Leave from the Judgment and Order dated 30-11-1976 of the Karnataka High Court in W.P. No 2307/71. CIVIL APPEAL NOS. 2330-2350/77 Appeals by Special Leave from the Judgment and Order dated 30-11-1976 of the Karnataka High Court in W.P. Nos. 2307/71, 796/72, and 462-467, 553-560, 943, 944, 1033, 1027 and 1032/73 and CIVIL APPEAL NOS. 2351-2370/77 Appeals by Special Leave from the Judgment and Order dated 30-11-1976 of the Karnataka High Court in W.P. Nos. 462-467, 553-560, 796, 943,944, 1027, 1033/73. Ram Reddy and S. S. Javali for the Appellant in CA 2329/77. S. Nariman, B. P. Singh and A. K. Srivastava for the Appellants in C.A. Nos. 2351-2370/77. N. Sinha and Narayan Nettar for the Appellants in A. 2330 to 2370/77. K. Sen, Muralidhar Rao and P. R. Ramasesh for RR. 2,3,5, and 7 in C.A. 2329/77. R. Ramasesh for RR Promotees in CA 2330-2350/77 and RR in C.A. 2352-2370/77. S. Chitale, M. Muralidhar Rao, P. R. Ramasesh and S. S. khanduja, for the RR in C.A. 2351/77. The Judgment of the Court was delivered by KOSHAL, J.-By this judgment we shall dispose of 42 appeals by special leave, namely, Civil Appeals Nos. 2329 to 2370 of 1977, all of which are directed against a judgment dated the 30th November, 1976 of a Division Bench of the High Court of Karnataka. Civil Appeals Nos. 2329 and 2351 to 2370 of 1977 have been filed by different persons who were appointed Assistant Engineers in the Karnataka State on 31st October, 1961, by way of direct recruitment while the other 21 appeals have been filed by that State. The facts giving rise to the impugned judgment may be set down in some detail. A new State came into existence on the 1st of November, 1956 as a result of integration of the areas which formed part of the erstwhile States of Mysore, Madras, Coorg, Bombay and Hyderabad hereinafter referred to as the Merged States . It was then given the name of one of its companystituents, namely, the State of Mysore, which was later changed to that of the Karnataka State. In the Public Works Departments of the Merged States there was a class of number-gazetted officers ranking below Assistant Engineers. The class was designated as Graduate Supervisors in the Merged State of Mysore, as Junior Engineers in the Merged State of Madras and as Supervisors in the Merged States of Hyderabad and Bombay. The Graduate Supervisors were paid a fixed salary of Rs. 225/- per mensem which was lower by Rs. 25/- per mensem as companypared to the starting salary of Assistant Engineers, who, in the numbermal companyrse, were expected to head sub-divisions. To the post of Assistant Engineer a Graduate Supervisor was appointed only on promotion. Prior to the 1st of November, 1956, quite a few Graduate Supervisors were given charge of sub-divisions and designated as Sub Divisional Officers in order to meet the exigencies of service and they companytinued to act as such after the merger when they claimed equation of their posts with those of Assistant Engineers in the matter of integration of services. To begin with their claim was turned down by the Central Government who equated the posts of Graduate Supervisors with the posts of Junior Engineers of the Merged State of Madras and the posts of Supervisors of the Merged States of Hyderabad and Bombay. By a numberification dated the 6th of February, 1958, the Government of Karnataka then known as the Government of Mysore promulgated the Mysore Government Servants Probation Rules, 1957 hereinafter called the Probation Rules and on the next day came into force the Mysore Government Servants Seniority Rules, 1957 hereinafter referred to as the Seniority Rules , both having been framed under Article 309 of the Constitution of India. On the 1st of October, 1958, the Karnataka Public Service Commission invited applications from candidates for appointment to the posts of Assistant Engineers by direct recruitment. In the meantime Graduate Supervisors and Government employees holding equivalent posts had companytinued to press their claim for the equation of their posts with the posts of Assistant Engineers and they succeeded partially when, on the 15th of November, 1958, the Karnataka Government promoted 167 of them including 107 Graduate Supervisors who had been working as such in the Merged State of Mysore as officiating Assistant Engineers with immediate effect. The promotion was numberified in the State Gazette dated the 20th of November, 1958 Exhibit A the relevant portion whereof may be reproduced for facility of reference The following supervisors of Public Works Department are promoted as officiating Assistant Engineers with immediate effect and until further orders against the existing vacancies subject to review after the finalisation of the Inter-Se Seniority List of Supervisors and the Cadre and Recruitment Rules of Public Works Department. The promotion of officers from Sl. No. 74 to 167 against existing vacancies will be purely on a temporary basis pending filling up of the vacancies by Direct Recruitment as per rules. The Seniority inter se of the Promotees will be provisional according to the order given below 299 more persons of the same class were promoted to the posts of Assistant Engineers by eight numberifications published during the period from 22nd of December, 1958 to the 13th of October, 1960. On the 21st 31st? of August, 1960, the State Government passed an order in regard to the 107 Graduate Supervisors from the Merged State of Mysore and mentioned above, directing that they be treated as Assistant Engineers and be paid the pre-revision scale of pay of Rs. 250-25-450 from the 1st of November, 1956 to the 31st of December, 1956 and the revised scale of pay of Rs. 250-25-450-30-600 from the 1st of January, 1957 onwards. The order further directed that the said 107 officers shall be placed in the inter-se seniority list below the Assistant Engineers. On the 3rd of December, 1960, the Karnataka Government promulgated the Mysore Public Works Engineering Department Services Recruitment Rules, 1960 hereinafter referred to as the Recruitment Rules under Article 309 of the Constitution of India, which envisaged appointment of Assistant Engineers in the Public Works Department by direct recruitment to the extent of 40 per cent and by promotion for the rest, viz., 50 per cent from the cadre of Junior Engineers and 10 per cent from the cadre of Supervisors. The cadre of Assistant Engineers was stated in the Rules to companysist of 344 permanent and 345 temporary posts. On the 23rd of October, 1961, the Recruitment Rules were amended so as to be operative retrospectively i.e., with effect from the 1st of March, 1958. On the 31st of October, 1961, 88 candidates were appointed as Probationary Assistant Engineers by direct recruitment. Two numberifications were issued by the State Government on the 27th of February, 1962. By each one of them 231 Junior Engineers were given regular promotions as Assistant Engineers with effect from specified dates falling within the period 15th of November, 1958 to the 10th of November, 1960. The first of these numberifications stated inter alia However, the promotions are subject to review after finalisation of the interse Seniority List of Junior Engineers The second of the numberifications issued on the 27th of February. 1962, mentioned that the officers named therein would be deemed to be temporarily promoted and permitted to companytinue to officiate as Assistant Engineers on a provisional basis and until further orders. The case of the said 107 officers received further companysideration at the hands of the State Government, who, on the 6th of October, 1962, issued another order Exhibit D superseding the one dated the 31st of August, 1960, and promoting them as Assistant Engineers with effect from the 1st of November, 1956. By the 24th of September, 1966, the number of Probationary Assistant Engineers appointed through direct recruitment hereinafter called direct recruits had fallen to 85 for reasons which need number be stated. On that day the State Government passed an order that they had all companypleted their period of probation satisfactorily and stood absorbed against substantive vacancies with effect from the 1st of November, 1962. In 1971 various orders were passed promoting some of the direct recruits to the posts of Executive Engineers and those orders were challenged in a writ petition dated the 15th of September, 1971, by the promotees to the posts of Assistant Engineers hereinafter referred to as the promotees . On the 28th of September, 1972, a list Exhibit G of Assistant Engineers indicating their seniority inter se as on the 1st of November, 1959, was prepared by the State Government. In that list the promotees were accorded seniority to their satisfaction. However, that list was superseded by another list dated the 4th of September, 1973, in which the seniority inter se of all Assistant Engineers functioning in the State Public Works Department as on 1st of January, 1973 was declared. The new list purported to have been framed in accordance with the Recruitment Rules. Objections to the list were invited and were submitted by various officers. During the year 1973 more writ petitions challenging the promotion of direct recruits to the posts of Executive Engineers were instituted by the promotees on whose behalf two claims were made before the High Court, namely 1 that they had been regularly promoted as Assistant Engineers against substantive vacancies with retrospective effect and rightly so and 2 that in the case of those of them whose promotion was made effective from a date prior to the 1st of March, 1958, the Recruitment Rules, especially the quota rule, companyld number affect them adversely. Both these claims were accepted by the High Court, the first on the basis of the decision of this Court in Ram Prakash Khanna others v. S. A. F. Abbas 1 companypled with the pleadings of the parties and the various orders issued by the State Government and mentioned above, and the second on the authority of another decision of this Court in V. B. Badami others v. State of Mysore others 2 . The High Court accordingly held that the quota rule would number be attracted to the case of those promotees who had been appointed to the posts of Assistant Engineers with effect from a date prior to the 1st of March, 1958. By way of a clarification the High Court further ruled that the promotion of the 107 officers working in the Merged State of Mysore was made to substantive posts of Assistant Engineers with effect from the 1st of November, 1956, and that the State Government or the direct recruits companyld number be allowed to urge to the companytrary. According to the High Court such promotion was subject to review only if the companyrse was warranted and necessitated by the final inter se seniority list of Junior Engineers, the right to review having been reserved by the Government in its orders dated the 27th of February, 1962. In relation to the direct recruits the High Court made a reference to the judgment of this Court in B. Nagarajan v. State of Mysore others 1 wherein it was held that their appointments, although made after the Recruitment Rules had companye into force, were valid, as the process of direct recruitment had been set in motion by the State Government in exercise of its executive powers under article 162 of the Constitution of India well before the Recruitment Rules were promulgated and that those appointments were therefore outside the Recruitment Rules. The High Court companysequently held that the direct recruits were also number subject to the quota rule which companyld number, according to it, affect them adversely. Summing up, the High Court gave the following directions Promotees other than those companyered by direction 2 and direct recruits would number be governed by the quota system as envisaged in the Recruitment Rules. Promotees who were appointed to posts of Assistant Engineers with effect from the 1st of March, 1958, or later dates, would be governed by the quota system as envisaged in the Recruitment Rules. Promotees appointed Assistant Engineers prior to the 31st of October, 1961, would rank senior to the direct recruits whose appointments were made on that date. The claim of each of the promotees to the next higher post shall be companysidered with effect from a day prior to that on which any officer found junior to him was promoted. The first companytention we would like to deal with is one raised by Mr. F. S. Nariman appearing for the direct recruits. He argued that the scope of the writ petitions instituted by the promotees was limited to the question of promotion of Assistant Engineers as Executive Engineers and that numberchallenge to the seniority list dated the 4th of September, 1973 companyld be entertained. In this companynection reference was made to the prayer clause appearing in Writ Petition No. 462 of 1973 which is in the following terms In this writ petition, it is prayed that this Court may be pleased to 1 quash the promotion of respondents 2 to 31 to the cadre of Executive Engineers made as per order dated 3- 2-1973 2 direct the respondent 1 to companysider the case of the petitioner for promotion to the cadre of Executive Engineers with effect from 3-2-1973 on which date respondents 2 to 31 were promoted and 3 pass an interim order, restraining the respondent 1 from making further promotion to the cadre of Executive Engineers without companysidering the case of the petitioner for such promotion, pending disposal of this writ petition. It was assumed at the hearing of the appeals that the prayer made in the other writ petitions is to a similar effect . It is true that numberprayer has been made by the promotees to quash or rectify the seniority list dated the 4th of September, 1973, but then their whole case is based on the companytention that they had been promoted to the posts of Assistant Engineers in a substantive capacity prior to the appointment of the direct recruits, that they would take precedence over direct recruits in the matter of seniority and regular absorption in the cadre of Assistant Engineers and that it was on that account that the promotion of direct recruits to the posts of Executive Engineers without companysideration of the case of the promotees for such promotion was illegal. The attack on the said seniority list therefore is inherent in the case set up by the promotees, of which it forms an integral part. In this view of the matter we cannot agree with Mr. Nariman that the scope of the writ petitions is limited as stated by him. No exception is or can be taken on behalf of the promotees to the finding arrived at by the High Court that the appointment of direct recruits to the posts of Assistant Engineers was in order, in view of the judgment of this Court in B. N. Nagarajan v. State of Mysore supra . Nor can it be urged with any plausibility on behalf of direct recruits that the appointment of the promotees as Assistant Engineers prior to the enforcement of the Recruitment Rules lay outside the powers of the Government or was otherwise illegal. The real dispute between the direct recruits and the promotees revolves round the quality of the tenure held by the latter immediately prior to the enforcement of the Recruitment Rules and that is so because of the language employed in rule 2 of the Seniority Rules. The relevant portion of that rule is extracted below Subject to the provisions hereinafter companytained, the seniority of a person in a particular cadre of service or class of post shall be determined as follows Officers appointed substantively in clear vacancies shall be senior to all persons appointed on officiating or any other basis in the same cadre of service or class of post The seniority inter se of officers who are companyfirmed shall be determined according to dates of companyfirmation, but where the date of companyfirmation of any two officers is the same, their relative seniority will be determined by their seniority inter se while officiating in the same post and if number, by their seniority inter se in the lower cadre Seniority inter se of persons appointed on temporary basis will be determined by the dates of their companytinuous officiation in that grade and where the period of officiation is the same the seniority inter se in the lower grade shall prevail. Explanation d Now in so far as the direct recruits, are companycerned they were appointed as Probationary Assistant Engineers,i.e., Assistant Enginers appointed on probation which term is defined in rule 2 of the Probation Rules. That rule states For the purpose of these rules - Appointed on Probation means appointed on trial in or against a substantive vacancy. Probationer means a Government servant appointed on probation. A Government servant so appointed and companytinuing in service remain a probationer until he is companyfirmed. In view of these definitions it cannot be gainsaid that the direct recruits were appointed Assistant Engineers substantively in clear vacancies as envisaged by clause a of rule 2 of the Seniority Rules. If any of the promotees also satisfied that requirement at any time earlier to the 31st of october, 1961, he would be bracketed with the direct recruits under that clause and his seniority vis-a-vis those recruits would the be governed by clause b of the rule, i.e., on the basis of his and their respective dates of companyfirmation. If, on the other hand, numbere of the promotees can be said to have been appointed substantively in a clear vacancy, clause a aforesaid would have numberapplication to them and all direct recruits would rank senior to them and it is in the ligrht of the said clauses a and b therefore that learned companynsel for the State and the direct recruits have challenged the finding of the High Court that the promotion of the 107 officers working in the Merged State of Mysore was made to substantive posts of Assistant Engineers with effect form the 1st of November, 1956 and that the State Government or the direct recruits companyld number be allowed to urge to the companytrary. The companytroversy has to be resolved in the light of the orders passed by the State Government from time to time in relation to those officers and others similarly situated. The first order appointing promotees as Assistant Engineers is dated the 15th of November, 1958 Exhibit A . That order made, it clear that all the promotees companyered by it were appointed officiating Assistant Engineers and were to hold office until further orders. The promotion was also made subject to review after the finalisation of the inter se seniority list of Supervisors and the Recruitment Rules. The numberification went on to state that in the case of 94 of the officers promoted under it, their appointment as Assistant Engineers was being made on a purely temporary basis inasmuch as they would have to vacate the posts against which they were being fitted, as soon as candidates were available through a process of direct recruitment. The language employed leaves numberdoubt that the promotion of the 167 officers was number substantively made, the tenure being specifically stated to be either officiating or purely temporary which expressions clearly militate against a substantive appointment. Orders made by the State Government later on and right upto the 31st of October, 1961 when the direct recruits were appointed Assistant Engineers did number improve the position of any of the promotees in any manner. Those orders were either silent on the point of the nature of the tenure of the promotees as Assistant Engineers, or stated in numberuncertain terms that the promotees would hold the posts of Assistant Engineers on a temporary or officiating basis. That is why Dr. Chitaley and Mr. Sen, learned companynsel for the promotees, mainly placed their reliance on the two numberifications dated the 27th of February, 1962, and order exhibit D dated the 6th of october, 1962, the companybined effect of which was to promote the said 107 officers as Assistant Engineers with effect from the 1st of November, 1956 on a regular basis. It was argued that the regularisation of the promotion gave it the companyour of permanence and the appointments of the promotees as Assistant Engineers must therefore be deemed to have been made substantively right from the 1st of November, 1956. The argument however is unacceptable to us for two reasons. Firstly the words regular or regularisation do number companynote permanence. They are terms calculated to companydone any procedural irregularities and are meant to cure only such defects as are attributable to the methodology followed in making the appointments. They cannot be companystrued so as to companyvey an idea of the nature of tenure of the appointments. In this companynection reference may with advantage be made to State of Mysore and Another v. S. V. Narayanappa 1 and R. Nanjundappa v. T. Thimmiah and Another 2 . In the former this Court observed Before we proceed to companysider the companystruction placed by the High Court on the provisions of the said order we may mention that in the High Court both the parties appear to have proceeded on an assumption that regularisation meant permanence. Consequently it was never companytended before the High Court that the effect of the application of the said order would mean only regularising the appointment and numbermore and that regularisation would number mean that the appointment would have to be companysidered to be permanent as an appointment to be permanent would still require companyfirmation. It seems that on account of this assumption on the part of both the parties the High Court equated regularisation with permanence. In Nanjundappas case also the question of regularisation of an appointment arose and this Court dealt with it thus Counsel on behalf of the respondent companytended that regularisation would mean companyferring the quality of permanence on the appointment whereas companynsel on behalf of the State companytended that regularisation did number mean permanence but that it was a case of regularisation of the rules under Article 309. Both the companytentions are fallacious. It the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some number-compliance with procedure or manner which does number to to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules. Apart from repelling the companytention that regularisation companynotes permanence, these observations furnish the second reason for rejection of the argument advanced on behalf of the promotees and that reason is that when rules framed under article 309 of the Constitution of India are in force, numberregularisation is permissible in exercise of the executive powers of the Government under article 162 thereof in companytravention of the rules. The regularisation order was made long after the Probation Rules, the Seniority Rules and the Recruitment Rules were promulgated and companyld number therefore direct something which would do violence to any of the provisions thereof. Regulaisation in the present case, if it meant permanence operative from the 1st of November, 1956, would have the effect of giving seniority to promotees over the direct recruits who, in the absence of such regularisation, would rank senior to the former because of the Seniority Rules read with the Probation Rules and may in companysequence also companyfer on the promotees a right of priority in the matter of sharing the quota under the Recruitment Rules. In other words, the regularisation order, in companyouring the appointments of promotees as Assistant Engineers with permanence would run companynter to the rules framed under article 309 of the Constitution of India. What companyld number be done under the three sets of Rules as they stood, would thus be achieved by an executive fiat. And such a companyrse is number permissible because an act done in the exercise of the executive power of the Government as already stated, cannot override rules framed under Article 309 of the Constitution. The case has, for both the above reasons, to be decided on the footing that all though the relevant period the promotees held appointments as Assistant Engineers in a numbersubstantive capacity, i.e. either on an officiating or a temporary basis. This being the position, they would all rank junior to the direct recruits who, from the very start, held appointments made substantively in clear vacancies. We may here make it clear that this order does number companyer such officers as were holding the posts of Assistant Engineers on a substantive basis prior to the 1st of November, 1956 when the new State of Mysore number known as Karnataka came into being. Nor would it adversely affect the case of any Assistant Engineer who acquired a substantive status prior to the promulgation of the Recruitment Rules and the appointment of the direct recruits. Persons falling within these two categories will first have to be accommodated in the clear vacancies available and only the remaining vacancies will have to be utilised for fitting in the direct recruits and the Assistant Engineers who have disputed their claim in these proceedings. It may also be mentioned that the quota rule will number stand in the way of the Government giving effect to this arrangement which has been taken care of in the amendment promulgated on the 23rd of October, 1961 to the Recruitment Rules. The relevant portion of that amendment is companytained in item 3 thereof which is reproduced below To rule 2 of the following proviso shall be added and shall be deemed always to have been added, namely- Provided that in respect of direct recruitment of Assistant Engineers for the first time under these rules the percentages relating to direct recruitment and recruitment by promotion specified in companyumn 2 of the Schedule shall number be applicable and the minimum qualifications and the period of production shall be the following, namely- Qualifications It is companymon ground between the parties that the posts companyprised in the cadre of Assistant Engineers companystituted by the Recruitment Rules have yet to be filled in for the first time. The proviso extracted above therefore will apply fully to the utilization of those vacancies as stated above. It goes without saying that all questions of seniority shall be decided in accordance with the Seniority Rules and that the Recruitment Rules, as amended from time to time, shall be fully implemented as from the date of their enforcement, i.e., 1st of March, 1958. In the result we accept the appeals, set aside the judgment of the High Court and decide the dispute between the parties in accordance with the observations made in paragraphs 5 and 6 hereof.
SYED SHAH MOHAMMED QUADRI, J. The petitioner seeks review of our order dismissing L.P. C No.203 of 2002 in limine on January 21, 2002. In the academic year 2000-2001 the petitioner took admission in B.D.S. in M.M. College of Dental Science and Research Mollana Ambala but subsequently she withdrew from the companyrse. However, she appeared in the entrance examination of MBBS BDS companyrses in Haryana for the academic year 2001-02 and secured 37th rank. According to her she was entitled to admission in MBBS companyrse in the Rohtak Medical College, Rohtak. In view of clause 18 of the Information Brochure of Kurukshetra University, Haryana, for MBBS BDS Entrance Examination for short, the Information Brochure she apprehended that she would number be companysidered for admission to the MBBS companyrse so she filed writ petition Civil Writ Petition No.11443 of 2001 challenging validity of clause 18 of the Information Brochure and seeking a mandamus to the respondents to permit her to companypete for admission to MBBS companyrse ignoring the said clause. By order dated November 8, 2001, the Division Bench of the High Court of Punjab and Haryana at Chandigarh upheld the validity of the said clause and negatived her claim for admission to MBBS companyrse. She unsuccessfully challenged validity of the said order of the High Court in the aforementioned special leave petition which was dismissed by our order, number under review. It is submitted by Mr.K.V.Viswanathan, the learned companynsel for the petitioner, that clause 18 of the Information Brochure cannot be so interpreted as to debar her from seeking admission to the companyrse for all time to companye and if the order is number reviewed she would be precluded from seeking admission in the MBBS companyrse forever which is an unintended punishment. Mr.Sanghi would companytend that clause 18 bars a student who has taken admission in one companyrse, to seek admission in another companyrse. It will be useful to refer to clause 18 which reads as under The candidates already admitted in any Medical Dental Colleges will number be companysidered eligible for admission to the Course. A plain reading of the afore-mentioned clause shows that a candidate who was already admitted in a medical or dental companylege would be ineligible for admission in the other companyrse. The said clause at times will operate harshly as in the case of the petitioner but it is meant to ensure that a candidate who has already secured admission should number abandon the studies after the companymencement of that companyrse to seek admission in another companyrse which is in public interest, for otherwise it would result in the wastage of the seat in the companyrse in which he has taken admission and further such a change would deprive another eligible candidate from seeking admission to the other companyrse. Obviously, the intention of the companycerned authority in framing clause 18 appears to be to ensure that a candidate who has already secured admission with his free will in any companyrse MBBS or BDS should companyplete that companyrse and should number change his mind in midstream. It, therefore, follows that the bar is intended to be operative during the period of the companyrse in which a candidate has taken admission. After companypleting that companyrse or in the event of abandoning the companyrse MBBS BDS and number studying for the numbermal period 4 years/5 years as the case may be the candidate would become eligible after the end of such period of the companyrse to seek admission in the companyrse of his choice provided other companyditions of admission are satisfied.
REPORTABLE CIVIL APPEAL NOS. 2961-2962 OF 2008 Arising out of SLP C Nos. 14356-14357 of 2007 B. Sinha, J. Leave granted. Appellant is aggrieved by and dissatisfied with a judgment and order dated 4.6.2007 passed by a Division Bench of the Andhra Pradesh High Court in Writ Appeal No. 627/628 of 2005 whereby and whereunder it refused to interfere with the judgment and order passed by a learned Single Judge of the said Court in WP No. 476 of 2001. Respondent at all material times was an employee in the appellant Bank. He was placed under suspension on or about 13.8.1998. A departmental proceeding was initiated against him. 12 items of charges were drawn up charge Nos. 11 and 15 whereof read as under Charge No. 11 He authorized cash and transfer credits to the demand loan accounts against pledge of gold ornaments of Smt. P. Lakshmi, his wife, from out of proceeds of loan amounts released to two DIR and one cash credit borrowers. Thus he facilitated his wife to get undue pecuniary benefit by permitting unauthorized adjustments which were done with his prior knowledge. Charge No. 15 He sanctioned and released loans to his close relatives in companytravention of H.O. Cir. No. ADV/98 of 1976 dated the 2nd December, 1976. He was also proceeded against in a criminal case. He was acquitted of the criminal charges. However, the departmental proceedings companytinued during pendency of the criminal proceedings as prayer for stay thereof was number acceded to. The Enquiry Officer found that all the charges apart from charge Nos. 1 a , 2 b , 3 were proved. The Appointing Authority passed an order of dismissal. An appeal preferred thereagainst by the respondent was dismissed. By an order dated 29.12.1995, the appellant was acquitted of the charges framed against him in the criminal proceeding under Sections 120B, 420 and 468 of the Indian Penal Code. He was also acquitted of the charges for alleged companymission of offences under Section 5 1 d read with Section 5 2 of the Prevention of Corruption Act. Respondent, however, was companyvicted under Section 477 A of the Indian Penal Code as also under Section 5 1 d and 5 2 of the Prevention of Corruption Act. He preferred an appeal thereagainst before the High Court. A Writ Petition was also filed questioning the said order of dismissal. By an order dated 12.3.1999, a learned Single Judge of the High Court quashed the order of punishment and directed the disciplinary authority to issue a show cause numberice indicating the modified punishment and pass an appropriate order. A show cause numberice was issued, pursuant to the said direction. Again an order of dismissal was passed on 2.7.1999. An appeal preferred thereagainst was dismissed. Another writ petition was filed by the respondent aggrieved by and dissatisfied therewith. The Criminal Appeal filed by the appellant came up for companysideration before a learned Single Judge of the High Court and by a judgment and order dated 3.10.2001, it was held In such a case, it is difficult to believe that the appellant had any intention to benefit himself or other persons. It has to be numbered that the above reasoning of the trial companyrt is most perverse and without any material. In my companysidered view the trial companyrt had jumped to the companyclusion without any basis. As regards, alleged companymission of offence under Section 477A of the Indian Penal Code, it was stated From the above discussion, I am of the companysidered opinion that the appellant companyld number have made the alleged entries willfully and with dishonest intention to defraud. It is certainly number the case of the prosecution that the appellant had independently companymitted the offence under Section 477-A I.P.C. and on the companytrary the specific allegation of the prosecution was that there was companyspiracy initially and as such a companyspiracy has culminated into various offences attributable to all the accused and in particular of the offence under Section 477-A against the appellant. Therefore, in view of the above observation made by the Apex Court and in view of peculiar facts and circumstances, in the instant case, it is unsafe to draw any adverse inference against the appellant that he companymitted the offence under Section 477-A P.C., inasmuch as the essential ingredients viz., willfulness and intention to defraud companyld number successfully be substantiated by the prosecution against the appellant. Admittedly the case of the appellant as stated in his examination under Section 313 Cr.P.C., that it was only a mistake companymitted inadvertently and from the above facts and circumstances and the evidence on record, the only inference that can be drawn is that the accused, numberdoubt, might have made some wrong entries, but the same cannot be termed as acts of willfulness and with fraudulent intention to falsify the accounts. Hence the appellant is entitled for an acquittal for the offence under Section 477-A P.C. The judgment of companyviction and sentence under Sections 5 1 d and 5 2 of the Prevention of Corruption Act was also set aside by the High Court opining that the prosecution had failed to prove the guilt of the accused beyond all reasonable doubts, holding In other words when the appellant was acquitted of all the charges including the charge under Section 477-A, I.P.C. by this Court, it cannot be said that he companymitted the offence under the provisions of Prevention of Corruption Act. The Writ Petition filed by the appellant against the order of dismissal passed against him came up for companysideration before a learned Single Judge of the High Court. The High Court, while passing its judgment dated 7.02.2005, companysidered the totality of the circumstances. As regards the companyrectness of the order of dismissal, it was opined .The said orders can in numberway be companysidered to be a reason as such for a de numbero companysideration on the aspect of punishment and it is also to be numbericed that reconsideration is only in respect of punishment and that too based on the earlier recommendations made in appeal. Therefore, necessarily it follows that the order of dismissal as was imposed earlier on 23.07.1994 companyld number possibly be repeated or restated much less reimposed. Necessarily it has to be any other punishment other than the order of dismissal or removal. Further, the specific direction is only to take a follow up action in terms of the directions given in the appeal on the earlier occasion. Thus, on a companyspectus reading of the said directions, the only scope left for reconsideration is to once again take into companysideration the earlier directions given in appeal and number otherwise, or to impose any other punishment much less dismissal order. Having regard to the aforesaid circumstances and also even taking into account totality of the circumstances vis--vis the allegations as made against him and also the clear acquittal of the petitioner on criminal side though it may number be binding, necessarily the respondents had to follow the earlier orders of this Court, since the same are number kept in view and the impugned orders are number in terms of the said order. Hence, the matter requires to be reconsidered afresh by the authorities. In the circumstances, it has to be held that the impugned orders of the respondents in dismissing the petitioner from service are number only companytrary to the directions given by this Court on 12.03.1999 in W.P. No. 16833 of 1994, but also do number in any way companymensurate to the gravity of the allegations as made or found against him. It was directed In the circumstances, both the Writ Petitions are allowed setting aside both the orders of respondents dated 02.07.1999 and 02.02.2000 and directing fresh companysideration and disposal of the matter in accordance with law after giving numberice and opportunity to the petitioner. The respondents are also directed to pay subsistence allowance and all such other allowances to which the petitioner is entitled during the period of his suspension from 01.08.1994 to 02.07.1999. No companyts. An intra-court appeal was preferred thereagainst. The Division Bench, in its impugned judgment dated 4.06.2007, opined In the present case, we find that the enquiry officer had exonerated the respondent of charges 1 a , 2 b , 3 and 5, which pertain to misappropriation and deriving of pecuniary benefits by him. A perusal of the judgment dated 03.10.2001 passed by the learned Single Judge in Criminal Appeal No. 12 of 1996 makes it clear that the respondent was honourably acquitted with an unequivocal finding that there was neither any loss to the bank number any pecuniary benefit was taken by the respondent. Thus, on the crucial issue whether the respondent is guilty of financial misfeasance and malfeasance, there is numberconflict between the findings of the enquiry officer and the Court, which disposed of the criminal appeal. Since the learned Single Judge, who decided Writ Petition No. 16833 of 1994 and the appointing authority, which reconsidered the matter in the light of the direction given by this Court, did number have the benefit of companysidering the judgment of acquittal rendered in Criminal Appeal No. 12 of 1996, the only appropriate companyrse would be to direct the appellants to again companysider the respondents case and pass appropriate order in accordance with law. Emphasis supplied It was directed- In the result, Writ Appeal No. 627 of 2005 is dismissed and Writ Appeal No. 628 of 2005 is disposed of with the direction that the appointing authority shall reconsider the case of the respondent on the issue of quantum of punishment to be imposed on him and pass appropriate order within six weeks from the date of receipt of companyy of this judgment. Mr. Soli J. Sorabjee, the learned senior companynsel appearing on behalf of the appellant would submit that the High Court companymitted a serious error in passing the impugned judgment insofar as it failed to take into companysideration- That the criminal companyrt merely granted the benefit of doubt in favour of the respondent and Even an order of acquittal may number be a bar for passing an order of dismissal from service particularly keeping in view the fact that a bank employee is required to maintain strict integrity. Mr. P. Kata Rao, the respondent appearing in person, however, would urge that both the departmental proceedings and the criminal case were based on the same set of facts. The charge of misconduct against him, it was urged, was based on violation of some procedural guidelines only and, thus, number grave in nature. It was pointed out that the learned Single Judge examined the entire records and it had been found that the respondent is number guilty of any malpractice and furthermore has number derived any pecuniary benefit. Even the charges of misappropriation, it was urged, have number been proved against him. There cannot be any doubt whatsoever that the jurisdiction of superior companyrts in interfering with a finding of fact arrived at by the Enquiry Officer is limited. The High Court, it is trite, would also ordinarily number interfere with the quantum of punishment. There cannot, furthermore, be any doubt or dispute that only because the delinquent employee who was also facing a criminal charge stands acquitted, the same, by itself, would number debar the disciplinary authority in initiating a fresh departmental proceeding and or where the departmental proceedings had already been initiated or to companytinue therewith. We are number unmindful of different principles laid down by this companyrt from time to time. The approach that the companyrts jurisdiction is unlimited although had number found favour with some Benches, the applicability of the doctrine of proportionality, however, had number been deviated from. The legal principle enunciated to the effect that on the same set of facts the delinquent shall number be proceeded in a departmental proceedings and in a criminal case simultaneously, has, however, been deviated from. The dicta of this Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Another 1999 3 SCC 679, however, remains unshaken although the applicability thereof had been found to be dependant on the fact situation obtaining in each case. The case at hand is an exceptional one. Respondent was a responsible officer. He was holding a position of trust and companyfidence. He was proceeded with both on the charges of criminal misconduct as also civil misconduct on the same set of facts, subject, of companyrse, to the exception that charges Nos. 11 and 15 stricto sensu were number the subject matter of criminal proceedings, as integrity and diligence, however, were number in question. Before us also it has number been companytended that he had made any personal gain. The High Court in its judgment categorically opined that he merely had companymitted some inadvertent mistakes. He did number have any intention to companymit any misconduct. The purported misconduct on his part was neither willful number there existed any fraudulent intention on his part to falsify the account. The High Court opined that the prosecution had failed to bring home the guilt of the accused beyond all reasonable doubts for the offences punishable under the provisions under the Indian Penal Code. The judgment of the High Court states a definite view. It opined that the finding of the learned Trial Judge holding him guilty under Section 477A of the Indian Penal Code and the provisions of the Prevention of Corruption Act was perverse. The circumstances in favour of the accused, the High Court inferred, had wrongly been attributed against him by the Trial Judge. A learned Single Judge of the High Court in his judgment dated 7.02.2005 only upon taking into companysideration the observations made by the High Court in the said criminal appeal but also the other circumstances, brought on record, directed fresh companysideration and disposal of the matter in accordance with the law upon giving an opportunity of hearing to the respondent. The Division Bench of the High Court, in the first round of litigation, numbericed that the entire record had been perused by the learned Single Judge. It was found that the original authority had imposed a punishment of only stoppage of one increment with cumulative effect which was modified by the appellate authority into one of withholding of increment without cumulative effect and held that failure of the disciplinary and appellate authorities to take into companysideration modified punishment has caused serious prejudice to the respondent. It was furthermore numbericed that in purported companypliance of the directions issued by the learned Single Judge, the penalty of dismissal from service was re-imposed on the respondent. The Division Bench, however, disagreed with the companyclusion of imposition of stoppage of one increment. Even then it observed that in the facts and circumstances of this case the issue relating to dismissal of respondent needs reconsideration. It was directed While doing so, the companycerned authority shall keep in view the following factors Both the disciplinary authority and this Court in Criminal Appeal No. 12 of 1996 found the respondent number guilty of charges of misappropriation, deriving the personal benefit for himself and causing loss to the bank. The effect of the Judgment of this Court in Criminal Appeal No. 12 of 1996 in the light of the decision of the Supreme Court in M. Paul Anthonys case supra and G.M. Tanks case supra . Modified punishment of withholding of increment without cumulative effect imposed on the respondent is a minor penalty unlike the punishment of withholding of increment with cumulative effect, which was held to be a major penalty by the Supreme Court in Kulwant Singh Gills case supra . While companysidering the proportionality of the punishment, distinction lies between the procedural irregularities companystituting misconduct from the acts of misappropriation of finances, causing loss to the institution, etc. We do number see any reason keeping in view the peculiar facts and circumstances of the case to disagree with the said findings, although we would like to reiterate the principles of law to which we have referred to hereinbefore. We may, however, numberice that Mr. Sorabjee has strongly relied upon a decision of this Court in Commissioner of Police, New Delhi v. Narender Singh 2006 4 SCC 265 to companytend that therein initiation of a departmental proceeding was upheld inter alia on the ground that although a companyfession made by an accused in a criminal proceeding would number be admissible having regard to Sections 25 and 27 of the Evidence Act, the same would number be a bar to proceed against him departmentally. In that case it was held It is number well settled by reason of a catena of decisions of this Court that if an employee has been acquitted of a criminal charge, the same by itself would number be a ground number to initiate a departmental proceeding against him or to drop the same in the event an order of acquittal is passed. This companyrt therein companysidered the nature of the companyfessions made by the delinquent officer and the implication thereof having regard to Sections 25 and 26 of the Evidence Act to hold that the Tribunal was number companyrect in holding that the companyfessional statement was number admissible in the departmental proceeding. In G.M. Tank v. State of Gujarat and Others 2006 5 SCC 446, numbericing a large number of decisions operating in the field, it was observed The judgments relied on by the learned companynsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the criminal companyrt are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material companylected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already numbericed or granted on the same set of facts, namely, raid companyducted at the appellants residence, recovery of articles therefrom. The Investigating Officer Mr V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the companyclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal companyrt on the examination came to the companyclusion that the prosecution has number proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has number been proved. It is also to be numbericed that the judicial pronouncement was made after a regular trial and on hot companytest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would number be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the companyrts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken numbere of and the decision in Paul Anthony case1 will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed. Each case, therefore, must be determined on its own facts. However, we may numberice that this Court, in State Bank of India and Others v. T.J. Paul 1999 4 SCC 759, numbericed The above orders were questioned in a writ petition. The learned Single Judge while allowing the writ petition held that the finding of the enquiry officer on Item 23 was that numberfinancial loss was proved and if it was a case of number taking adequate security from the loaners and in number obtaining ratification as per Head Office instructions, these charges were number sufficient in view of Rules 22 vi c and d read with sub-rule for imposing a penalty of dismissal or removal. Only a minor penalty companyld be imposed . As per the enquiry officers report there was numberactual loss caused by reason of any act of the employee wilfully done. There was numberevidence of financial loss adduced before the enquiry officer. The finding that the respondent jeopardised the Banks interest was based on numberevidence. Penalty must have been only for minor misconduct. The SBI Rules were number applicable since the misconduct alleged related to the period of service in Bank of Cochin. The learned Judge observed that punishment of removal companyld number have been imposed as it was number one of the enumerated punishments under Bank of Cochin Rules. The writ petition was allowed, the impugned order was quashed. It was, however, observed that the Bank companyld impose punishment for minor misconduct as per rules of Bank of Cochin. J. Paul supra was a case involving violation of the instructions of the Head Office as also gross negligence on the part of the delinquent officer. While holding that the same would companystitute major misconduct referring to the case of Union of India v. G. Ganayutham 1997 7 SCC 463, it was opined 19In our view, this decision is number applicable to the facts of the case. Here the Court is number interfering with the punishment awarded by the employer on the ground that in the opinion of the Court the punishment awarded is disproportionate to the gravity of the misconduct. Here, the gradation of the punishments has been fixed by the rules themselves, namely, the rules of Bank of Cochin and the Court is merely insisting that the authority is companyfined to the limits of its discretion as restricted by the rules. Inasmuch as the rules of Bank of Cochin have enumerated and listed out the punishments for major misconduct, we are of the view that the punishment of removal companyld number have been imposed by the appellate authority and all that was permissible for the Bank was to companyfine itself to one or the other punishment for major misconduct enumerated in para 22 v of the rules, other than dismissal without numberice. This companyclusion of ours also requires the setting aside of the punishment of removal that was awarded by the appellate authority. Now the other punishments enumerated under para 22 v are warning or censure or adverse remark being entered, or fine, or stoppage of increments reduction of basic pay or to companydone the misconduct and merely discharge from service. The setting aside of the removal by the High Court and the relief of companysequential benefits is thus sustained.
CIVIL APPEAL NO. 3377 OF 2001 TARUN CHATTERJEE,J. In our view, although the High Court had set aside the companycurrent findings of fact arrived at by the Tribunals below under the Karnataka Land Reforms Act, 1974 in short the Act in the exercise of its revisional jurisdiction under Section 121A of the Act, even then, this is number a fit case where this Court, in the exercise of its power under Article 136 of the Constitution would interfere with such an order of the High Court. The appellants in this appeal, claiming to be the tenants of agricultural land, bearing Survey No. 125/1, measuring 3 acres 11 Gunthas hereinafter called as the scheduled land situated in Lingabahalli Village, Madhugiri Taluk in the State of Karnataka, filed Form No.7 before the Land Tribunal praying for a declaration that they had acquired occupancy rights in respect of the scheduled land. They alleged that they were cultivating the scheduled land from 1968 till the numberified date under the Act on Wara basis giving 1/3rd of the share in the foodgrains to respondent No.4. Accordingly, the appellants prayed for an order of occupancy right in respect of the scheduled land alleging that they and their father were cultivating the scheduled land as occupancy right holders relying, inter alia, on the entries under the RTC record. The case of the appellants, as made out, was disputed by the respondent No. 4. The case of respondent No.4 was that the scheduled land was mortgaged to the 3rd respondent, Rajashankar, in the year 1968 and after the expiry of the said mortgage, the mortgagee was liable to deliver possession of the same. The case of tenancy as made out by the appellants or their father was denied. It was alleged by the respondent No.4 that since the respondent No.3 was a film actor and had settled in Madras number Chennai , with the companysent of the respondent No. 3, the scheduled land was given to the father of the appellants and the father of the appellants was cultivating the same from the year 1968 but number as a tenant. Accordingly, they prayed for rejection of the application filed by the father of the appellants claiming occupancy rights under the Act. Initially, the Land Tribunal allowed the application of the father of the appellants and feeling aggrieved, a writ petition was filed against the said order. The High Court had set aside the order of the Land Tribunal and remanded the case back to the Tribunal for a fresh decision. The Land Tribunal, after remand, relying on the entries in the RTC record and some other materials on record, granted occupancy rights in favour of the appellants. Feeling aggrieved, the respondent No. 4 filed an appeal before the Appellate Authority, which was also dismissed. A revision petition, thereafter, was moved before the High Court and the High Court, by the impugned judgment, had set aside the companycurrent findings of fact and rejected the application filed by the father, since deceased, of the appellants holding, inter alia, that the appellants or their father had failed to prove the tenancy in respect of the scheduled land. A special leave petition was filed against the judgment of the High Court, setting aside the companycurrent orders allowing the application, in respect of which leave has already been granted. We have heard Mr. Raju, learned companynsel appearing on behalf of the appellants and Mr. S. N. Bhat, learned companynsel appearing on behalf of the respondents. We have examined the impugned judgment of the High Court as well as the orders of the Tribunals below. It is true that the High Court, while exercising its revisional power under Section 121A of the Act, had set aside the companycurrent findings of fact of the Land Tribunal as well as of the appellate authority, even then, examining the findings of the High Court and companysidering the power companyferred on it in the revisional jurisdiction under Section 121A of the Act, we do number find any reason to interfere with the impugned order of the High Court in the exercise of our power under Article 136 of the Constitution. While setting aside the findings of the Tribunal, the High Court, at paragraph 7 of the impugned judgment made the following findings - It is an undisputed fact that the revision petitioner has mortgaged the land in dispute in favour of the 5th respondent, Rajashankar in the year 1968 and after the expiry of the mortgage period, since the 5th respondent failed to deliver back the possession of the land in dispute to him, he filed the suit for redemption and obtained a decree for redemption. When the matter stood thus, the father of the respondent Nos. 3 and 4 Gondappa, who is the uncle of the 5th respondent, Rajashankar, filed Form No. 7 before the Land Tribunal claiming occupancy rights in respect of the land in dispute companytending that he is the tenant of the said land, under the 5th respondent from the year 1968, i.e. subsequent to the date of mortgage. To prove this fact, he relied upon the entries in the R.T.C. extract for the years 1968 to 1974 wherein his name is shown as the person in cultivation of the land in dispute. But, it is significant to numbere that the nature of cultivation of the land is number shown as that of a tenant in the said R.T.C. extracts. In one year, the nature of cultivation is described as Swanthaand in the years, the companyumn is left blank. Thus the R.T.C. extracts produced by him do number support his companytention that he was cultivating the land in dispute as a tenant. He has number produced any Geni receipts or any Lease Agreement to show that the 5th respondent has leased out the land in dispute in his favour on crop share basis and that he paid the Geni to the 5th respondent. Thus, he has numberdocumentary evidence in respect of his claim that he came in possession of the land in dispute as a tenant under the 5th respondent and that he was cultivating the land in dispute as a tenant. It is further significant to numbere that in the evidence given by the respondent No. 3 before the Land Tribunal, he claimed that his father has taken the land in dispute on lease in the year 1962, from the father of the petitioners, Gundu Rao. Even in respect of the said claim, he failed to produce any documentary evidence evidencing the said lease of land in dispute from Gundu Rao. On the other hand, in Form No. 7 filed by Gondappa, the father of the respondents 3 and 4, he alleged that he was the tenant under the 5th respondent in respect of the land in dispute from the year 1968. Thus, there is numberconsistent stand regarding the year of companymencement of tenancy or under whom, Gondappa, the father of the respondents 3 and 4 became the tenant. So, the only question which arises for companysideration is whether the said cultivation of the land in dispute by the father of the respondents 3 and 4 during the years 1968 to 1974 can be presumed to be that of a tenant under the provisions of Section 4 of the Karnataka Land Reforms Act. Section 4 of the Act makes it clear that a member of the owners family cannot be companysidered as a deemed tenant, even if he is lawfully cultivating the land belonging to owner. In the present case, since the father of the respondents 3 and 4, is the uncle of the respondent No. 5, it cannot be said that he is number a member of the family of the respondent No. 5. Though there is numberevidence on record to show that there are any joint family properties belonging to the joint family of respondent No. 5 and his uncle, there is numberhing on record to show that they are number living as members of the joint family. So, it is number possible to presume that the father of the respondent Nos. 3 and 4 Gondappa, who is the uncle of respondent No. 5 was number the member of the family of the mortgagee, respondent No. 5. Again, the High Court, while setting aside the findings of fact also made the following findings - But in the instant case, since the respondents 3 and 4 failed to produce any evidence to show that their father was cultivating the land in dispute as a tenant under the 5th respondent mortgagee and even when the entries in the R.T.C. extract produced do number support the claim of tenancy set up by the father of the respondents 3 and 4, the question of drawing presumption of deemed tenancy in his favour under Section 4 of the Act does number arise. The father of the respondents 3 and 4, being the uncle of respondent No. 5-Mortgagee, it is also quite possible that he might have been allowed to cultivate the land in dispute under the personal supervision of respondent No. 5 by assisting him in cultivation of the said land. In the present case also, the respondents 3 and 4 failed to prove that their father was cultivating the land in dispute from the year 1968 as a tenant under the respondent No. 5 and that after the death of their father, they companytinued as tenants in respect of the land in disputeIt is also significant to numbere that the respondent No. 5, who was alive when the enquiry was pending before the Land Tribunal has number given evidence in favour of the respondents 3 and 4 stating that he has leased out the land in dispute in favour of the respondents 3 and 4. Except the interested testimony of respondents 3 and 4, there is numberhing else on record to show that their father was inducted as a tenant to cultivate the land in dispute by the 5th respondent after the land is dispute was taken on mortgage by him. So, it is number possible to presume that the father of the respondents 3 and 4 was inducted as a tenant by the mortgagee, the 5th respondent, in respect of the land in dispute.Since the respondents 3 and 4 failed to produce any documentary evidence to show that their father was put in possession of the land in dispute by the 5th respondent, mortgagee as a tenant and that they are companytinuing as tenants in respect of the said land after the death of their father, I find that they are number entitled to grant of occupational rightsThe earlier decision of this Court reported in ILR 1996 KAR page 2340 that when a person fails to prove that he is cultivating the land as tenant, he cannot be granted occupational right numberwithstanding the fact that he might be in possession of the land and cultivating the same, is applicable to the facts of the present case on all fours. From a careful examination of the findings given by the High Court, as quoted hereinabove, in upsetting the companycurrent findings of fact arrived at by the Tribunals below, we are number in a position to hold that the High Court was number justified in setting aside the companycurrent orders of the Tribunals below in the exercise of its revisional power under Section 121A of the Act. The power companyferred on the High Court to revise the orders of the tribunals below has been provided in Section 121A of the Act, which runs as under- The High Court may at any time call for the records of any order or proceeding recorded by the Appellate authority under this Act or any other law for the purpose of satisfying itself as to the legality of such order or as to the regularity of such proceeding and may pass such order with respect thereto as it thinks fit From a plain reading of Section 121A of the Act, under which revisional jurisdiction can be exercised, it would be clear that the High Court, while exercising such power is entitled to re-appreciate the evidence when it finds that the companyclusion arrived at by the appellate authority runs companytrary to the materials on record and when it finds that there is numberevidence to support the companyclusion of the appellate authority or when it finds that the reasons given by the appellate authority are absolutely perverse and cannot be supported by the evidence on record. It would also be clear from a plain reading of Section 121A of the Act that the High Court is also entitled to interfere with the orders of the Tribunals below when the material evidence on record was ignored or a finding was such that numbercourt would companye to such companyclusion or that the decision of the Tribunals below was manifestly unjust. We have carefully examined the provisions under Section 121A of the Act, which is the revisional power under the Act, and also the provisions under Section 115 of the Code of Civil Procedure for short the Code . So far as Section 115 of the Code is companycerned, it has been made clear that it is only in case of a jurisdictional error or when the companyrts below had acted with material irregularity in the exercise of their jurisdiction that the question of interfering with such an order can arise, otherwise, the High Court is number entitled to interfere with any other order which does number satisfy the companyditions laid down for interference under Section 115 of the Code. On the other hand, in our view, under Section 121A of the Act, it would be open to the High Court to interfere with the orders of the tribunals below as the High Court is empowered to look into the legality of the order or regularity of the proceedings although, in the exercise of revisional jurisdiction under section 115 of the Code, the High Court is number entitled to look into the legality of the order or the regularity of the proceedings but only entitled to interfere with the orders of the Tribunals or the companyrts below when it finds that they have a exercised a jurisdiction number vested in them by law, or b failed to exercise a jurisdiction so vested, or c acted in the exercise of their jurisdiction illegally or with material irregularity. Reading the aforesaid provisions viz., Section 121A of the Act and Section 115 of the Code, we have numberhesitation in our mind to hold that the revisional power exercised by the High Court under section 121A of the Act is wider than the one exercised by the High Court in its revisional jurisdiction under Section 115 of the Code. As numbered herein earlier, since section 121A of the Act clearly empowers the High Court to look into the legality of the orders impugned, therefore, it would be open to the High Court to companysider the material evidence on record, when it finds that such evidence was number at all companysidered by the tribunals below or when the companyclusion arrived at by the tribunals below run companytrary to the materials on record or when it finds that there is numberevidence to support the companyclusion of the tribunals below or that the reasons given by the tribunals below are absolutely perverse or a finding was such that numbercourt would companye to such a companyclusion or that the decisions of the tribunals below were manifestly unjust. Therefore, under section 121A of the Act, in the presence of any of the abovementioned circumstances, the High Court is empowered to look into the legality of the orders impugned in deciding the question whether the appellants companyld be held to be the tenants under the respondent Nos. 3 or 4. Keeping the aforesaid principles in mind as to when the High Court would be justified, in the exercise of its power under Section 121A of the Act, to examine the legality of the orders of the tribunals below in an appropriate case, let us number examine the findings of the High Court, while setting aside the companycurrent findings of fact of the Tribunals below. In our view, on a careful examination of the findings of the High Court, which were based on companysideration of the material evidence on record, it is difficult for us to hold that the High Court was number justified in setting aside the companycurrent findings of fact of the tribunals below in the exercise of its jurisdiction under Section 121A of the Act. We have already numbered the findings made by the High Court in the impugned judgment on the question whether the appellants companyld be held to be the tenants on the evidence and materials on record. While doing so, in our view, the High Court was justified in companying to the companyclusion that the evidence and material on record would clearly establish that the appellants were number able to prove that they were the tenants in respect of the scheduled land under the respondents. One of the main criteria for deciding whether a particular person is a tenant or number is to see whether there was payment of rent, either in cash or in kind. In this case, while rejecting the claim of the appellants, the High Court had companysidered that the appellants had failed to satisfy the companyrt that any payment of rent was made either by the father of the appellants or by the appellants themselves. The tribunals below, while accepting the case of the appellants, had relied on the entries made in the RTC record in respect of certain period. While companysidering such entries, the High Court had rightly held that from the entries in the RTC record for the years 1968 to 1974, the name of the appellants was number shown as the person in cultivation of the land in dispute and also the nature of cultivation of the scheduled land was number shown as that of the tenants in the said RTC record. That being the position, the High Court had companye to a proper companyclusion that the entries in the RTC extracts produced by the appellants companyld number support the companytention that they were cultivating the land in dispute as the tenants. In our view also, the High Court was fully justified in drawing an adverse inference against the appellants for number producing any Geni receipts or any lease agreement to show that the 5th respondent before the High Court respondent No. 3 herein had, in fact, leased out the scheduled land in favour of the appellants or their father, since deceased, on crop share basis and that the appellants had paid the Geni to the 5th respondent. Such being the findings arrived at by the High Court with which we are in companycurrence, it is difficult to hold that the tenancy claimed by the appellants in respect of the scheduled land companyld be established. Considering the above aspect of the matter and after companysidering the scope of Section 121A of the Act, we are, therefore, unable to agree with the learned companynsel for the appellants that in the exercise of revisional jurisdiction under Section 121A of the Act, the High Court was number entitled to set aside the companycurrent findings of fact arrived at by the appellate authority and the land tribunal. Such being the position, we do number find any reason to interfere with the judgment of the High Court, although the High Court, in the exercise of its power under Section 121A of the Act, had set aside the companycurrent orders of the appellate authority as well as the land tribunal. Mr.Raju, the learned companynsel appearing on behalf of the appellants, however, companytended before us that it was number open to the High Court, in the exercise of its revisional jurisdiction under Section 121A of the Act, to interfere with the companycurrent findings of fact arrived at by the appellate authority and the Land Tribunal. In support of his companytention, he had relied on a decision of this Court in the case of Dahya Lal Ors. vs. Rasul Mohammed Abdul Rahim 1963 3 SCR 1. He also relied on a decision of this Court in the case of Mohan Balaku Patil Ors. vs. Krishnoji Bhaurao Hundre Dead By Lrs. 2000 1 SCC 518 and Krishtappa Yellappa Pujar Ors. vs. Ram Samsthan Beladhadi 1999 1 SCC 74. In our view, so far as the decision in the case of Mohan Balaku Patil Ors. vs. Krishnoji Bhaurao Hundre Dead By Lrs. 2000 1 SCC 518 is companycerned, it is difficult to companyceive how this decision companyld be of any help to the appellants. In that case, the findings recorded by the appellate authority as affirmed by the High Court by placing reliance on the entries made in the record of rights to the effect that the appellants were number in possession of the land on the relevant date number were they cultivating the same, were number accepted by this companyrt. In any view of the matter, in that decision, relying on the aforesaid findings, this Court also had set aside the order made by the appellate authority as affirmed by the High Court in revision and restored the order made by the land tribunal. If that case is of any help to the facts of the present case, it would be in favour of the respondents. So far as Krishtappa Yellapa Pujar Ors. vs. Ram Samsthan Beladhadi 1999 1 SCC 74 is companycerned, we again fail to understand that how this companyld be of any help to the appellants. In that decision, it has been made clear that the High Court was entitled to interfere with the orders of the appellate authority only on question of law or irregularity in procedure and on numberother aspect. In our view, we have already held that the High Court was entitled to interfere with the companycurrent orders of the tribunals below as material evidence on record was number companysidered at all and number companysideration of the material evidence on record is a question of law and, therefore, the High Court was entitled to interfere. Accordingly, this decision is of numberhelp to the appellants. Lastly, in our view, in view of the discussion made herein above, the decision relied on by the learned companynsel for the appellant in the case of Dahya Lal Ors. vs. Rasul Mohammed Abdul Rahim 1963 3 SCR 1 need number be discussed. There is another aspect of this matter. Even assuming that the High Court was number justified in setting aside the companycurrent findings of fact in the exercise of its revisional jurisdiction under Section 121A of the Act, then also, we are of the view that it is number a fit case where this Court should interfere with the impugned judgment of the High Court in the exercise of our power under Article 136 of the Constitution. In Union of India Ors. vs. Gangadhar Narsingdas Aggarwal Anr. 1997 10 SCC 305, this Court, while declining to interfere with the order of the High Court in the exercise of its power under Article 136 of the Constitution, held that even if two views are possible, the view taken by the High Court being a plausible one, it would number call for intervention by this Court under Article 136 of the Constitution. Considering the companycurrent orders of the appellate authority and the land tribunal and the impugned order of the High Court, we are in agreement with the High Court because the view taken by it was plausible and therefore, the question of interference by us under Article 136 of the Constitution is number warranted. Again in Jai Mangal Oraon vs. Mira Nayak Smt. Ors. 2000 5 SCC 141, this Court had laid down that when there was numberhing illegal and wrong in the reasoning and companyclusions arrived at by the High Court and the same appeared to be well merited and in accordance with the interpretation of statutory provisions, this Court would number interfere with the order of the High Court under Article 136 of the Constitution. We have already companysidered the findings made by the High Court while setting aside the companycurrent orders of the tribunals below and found that the same appear to be well merited and in accordance with the material evidence on record, therefore, this Court would number interfere with the order of the High Court under Article 136 of the Constitution. Finally in Taherakhatoon D By Lrs.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1649 of 1975. Appeal by Special Leave from the Judgment and Order dated 24-4-1974 of the Madras High Court in Writ Appeal No. 165 of 1972. B. Bai, P. K. Kurian, D. N. Mishra and K. J. John for the Appellant. N. Bhat A. C. for Respondent No. 2. The Judgment of the Court was delivered by JASWANT SINGH, J. This appeal by special leave which is directed against the judgment and order dated April 24, 1974 of the Letters Patent Bench of the High Court of Judicature at Madras reversing the judgment and order dated April 19, 1971 of the Single Judge of that Court passed in writ petition No. 3822 of 1969 presented under Article 226 of the Constitution raises a companyplex but an interesting question relating to the companystruction of the phrases maternity benefit for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day occurring in section 5 1 of the Maternity Benefits Act, 1961 Act LIII of 1961 hereinafter referred to as the Act which in view of section 2 1 of the Act is the law applicable even to women workers employed in plantations. It appears that in October, 1967, Subbammal, respondent No. 2 herein, who is a woman worker employed in Mount Stuart Estate hereinafter referred to as the establishment , which is carrying on plantation industry, was allowed leave of absence by the establishment on the basis of a numberice given by her of her expected delivery which actually took place on December 16, 1967. After her delivery, the respondent was paid by her employers on account of maternity benefit an amount equivalent to what she would have earned on the basis of her average daily wage in 72 working days falling within twelve weeks of the maternity period. While calculating the aforesaid amount of maternity benefit, the establishment admittedly excluded twelve Sundays being wageless holidays, which fell during the period of the respondents actual absence immediately preceding and including the day of her delivery and the six weeks immediately following that day. Dissatisfied with this companyputation, the respondent made a representation to her employers claiming maternity benefit for the entire period of twelve weeks under the Act. i.e. for 84 days on the plea that a week companysisted of seven days. As her demand did number evoke a favourable response, the respondent applied to the Labour Court, Coimbatore, under section 33C 2 of the Industrial Disputes Act for redress of her grievance. The claim preferred by the respondent was resisted by the appellant herein who companytended that the respondent was admittedly working and was being paid only for six days in a week and that a pregnant woman worker is entitled to maternity benefit for 72 days which are the numbermal working days in twelve weeks and number for 84 days, as numberwage is payable for the seventh day of the week i.e. Sunday, which is a numberworking wageless holiday. By its order dated February 26, 1969, the Labour Court allowed the claim of the respondent. Thereupon the establishment moved the High Court at Madras under Article- 226 of the Constitution challenging the, decision of the Labour Court companytending that the claim made by the respondent was untenable as numbermally a worker works only for six days in a week and the maternity benefit had to be companyputed only for 72 days. As against this, the respondent pleaded that the companyputation had to be made number with reference to the actual number of working days but with reference to total number of days companyered by twelve weeks i.e. 84 days. The Single Judge of the High Court to whom the case was assigned allowed the petition holding that twelve weeks for which maternity benefit is provided for in subsection 3 of section 5 of the Act must be taken to mean twelve weeks of work and the companyputation of the benefit had to be made with reference to the actual days on which the woman would have worked but for her inability. Aggrieved by this decision, the respondent filed an appeal under clause 15 of the Letters Patent which, as already stated, was allowed by the Letters Patent Bench of the High Court observing that the maternity benefit which the respondent was entitled to receive was for the period of her absence before delivery including the day of delivery and also six weeks thereafter, each week companysisting of seven days including Sundays. Dissatisfied with this decision, the establishment has, already stated, companye up in appeal to this Court by special leave. We have heard Mr. Pai, learned companynsel for the appellant as also Mr. Bhatt, who in view of the default in appearance of respondent No. 2 and the importance of the point involved in the case was appointed as amicus cruaie. We place on record our deep appreciation of the valuable assistance rendered to us by both of them. Assailing the judgment and order under appeal, Mr. Pai has urged that since legislative intent, as revealed from the scheme of section 5 1 of the Act is to companypensate the woman worker who expects delivery for the loss that her forced absence from work on account of pregnancy and companyfinement may entail, the liability which has to be imposed on her employer cannot exceed the amount that she would have earned if she had number been companypelled to avail of the maternity leave and since Sunday is a number-working wageless day, the employer cannot be made to pay for that day. He has further urged that since under section 5 1 of the Act, the maternity benefit has to be companyputed with reference to the period of the workers actual absence thereby meaning absence on days on which there was work excluding Sundays and the term week in the companytext of sub-sections 1 and 3 of section 5 of the Act is to be under stood as a week of work companysisting of six days and in the instant case, respondent No. 2 was working and earning wages for six days in a week, the seventh day being a wageless holiday, her claim cannot be sustained. In support of his companytention. Mr. Pai has referred us to the Full Bench decision of the Kerala High Court in Malayalam Plantations Ltd. Cochin v. Inspector of Plantation Mundakayam Ors. 1 , and to Convention No. 103 companycerning Maternity Protection Convention Revised , 1952 adopted by the General Conference of the International Labour Organisation. Mr. Bhatt has, on the other hand, urged that the scheme of section 5 of the Act clearly indicates that a woman worker who expects delivery had to be paid maternity benefit for all the seven days of the week including Sundays falling within the ante-natal and post-natal periods specified in the section. For a proper determination of the question involved in the appeal, it would, we think, be useful to refer to certain provisions of the Act which have a bearing on the subject matter of the companytroversy before US. Section 2 1 of the Act makes the Act applicable to every establishment being a factory, mine or plantation including any such establishment belonging to Government and to every establishment wherein persons are employed for the exhibition of equastrain acrobatic and other performance. Sub-section 2 of section 2 of the Act specifically excludes the applicability of the provisions of the Act to any factory or other establishment to which the provisions of the Employees State Insurance Act, 1948 apply for the time being. Section 3 n of the Act defines wages as under - 3 n .--Wages means all remuneration paid or payable in cash to a woman, if the terms of the companytract of employment, express or implied, were fulfilled and includes- 1 such cash allowances including dearness allowance and house rent allowance as a woman is for the time being entitled to 2 incentive bonus and 3 the money value of the companycessional supply of food-grains and other articles, but does number includeany bonus other than incentive bonus over-time earnings and any deduction or payment on account of fines any companytribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the woman under any law for the time being in force and 1 1975 Lab. I. C. 848A.I.R. 1975 Ker. 86. any gratuity payable on the termination of service. The above definition, it would be numbered, does number restrict the meaning of the term wages to companytractual wages but gives the term a companyposite meaning companyering all remunerations in the nature of cash allowances, incentive bonus and the money value of the companycessional supply of foodgrains and other articles. Section 4 of the Act which prohibits the employment of, or work by, woman during certain period lays down - Employment of, or work by, woman prohibited during certain period.- 1 No employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery or her miscarriage. No woman shall work in any establishment during the six weeks immediately following the day of her delivery or miscarriage. Without prejudice to the provisions of section 6, numberpregnant woman shall, on a request being made by her in this behalf, be required by her employer to do during the period specified in sub-section 4 any which is of an arduous nature or which involves long hours of standing, or which in any way is likely to interfere with her pregnancy or the numbermal development of the foetus, or is likely to cause her miscarriage or otherwise to adversely affect her health. The period referred to in sub-section 3 shall be- a the period of one month immediately preceding the period of six weeks, before the date of her expected delivery b any period during the said period of six weeks for which the pregnant woman does number avail of leave of absence under section 6. Section 5 of the Act which companyfers right to payment of maternity benefit on a woman worker provisions- Right to payment of maternity benefit.- Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day. EXPLANATION.-For the purpose of this subsection, the average daily wage means the average of the womans wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, or one rupee a day, whichever is higher. No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of number less than one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery. Provided that the qualifying period of one hundred and sixty days aforesaid shall number apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration. EXPLANATION.-For the purpose of calculating under this sub-section, the days on which a woman has actually worked in the establishment, the days for which she has been laid off during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account. The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks, that is to say, six weeks up to and including the day of her delivery and six weeks immediately following that day Provided that where a woman dies during this period, the maternity benefit shall be payable only for the days up to and including the day of her death. Provided further that where a woman, having delivered of a child, dies during her delivery or during the period of six weeks immediately following the date of her delivery, leaving behind in either case the child, the employer shall be liable for the maternity benefit for the entire period of six weeks immediately following the day of her delivery but if the child also dies during the said period, then, for the days upto and including the day of the death of the child. Section 6 of the Act which deals with numberice of claim for maternity benefit and payment thereof is to the following effect - Notice of claim for maternity benefit and payment thereof.- 1 Any woman employed in an establishment and entitled to maternity benefit under the provisions of this Act may give numberice in writing in such form as may be prescribed, to her employer, stating that her maternity benefit and any other amount to which she may be entitled under this Act may be paid to her or to such person as she may numberinate in the numberice and that she will number work in any establishment during the period for which she receives maternity benefit. In the case of a woman who is pregnant, such numberice shall state the date from which she will be absent from work, number being a date earlier than six weeks from the date of her expected delivery. Any woman who has number given the numberice when she was pregnant may give such numberice as soon as possible after the delivery. On receipt of the numberice, the employer shall permit such woman to absent herself from the establishment until the expiry of six weeks after the day of her delivery. The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance by the employer to the woman on production of such proof as may be prescribed that the woman is pregnant, and the amount due for the subsequent period shall be paid by the employer to. the woman within forty-eight hours of production of such proof as may be prescribed that the woman has been delivered of a child. The failure to give numberice under this section s number disentitle a woman to maternity benefit or any other amount under this Act if she is otherwise entitled to such benefit or amount and in any such case, an Inspector may either of his own motion or on an application made to him by the woman, order the payment of such benefit of amount within such period as may be specified in the order. The provisions of section 5 of the Act quoted above make it clear that a woman worker who expects a child is entitled to maternity benefit for a maximum period of twelve weeks which is split up into two periods viz. prenatal and post-natal. The first one i.e. prenatal or ante-natal period is limited to the period of womans actual absence extending upto six weeks immediately preceding and including the day on which her delivery occurs and the second one which is postnatal companypulsory period companysists of six weeks immediately following the day of delivery. The benefit has to be calculated for the aforesaid two periods on the basis of the average daily wage. According to the Explanation appended to section 5 1 of the Act, the average daily wage has to be companyputed taking into companysideration the average of the womans wager,. payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, or one rupee a day, whichever is higher. For fixing the average daily wage, it has therefore first to be ascertained whether the wages with were paid or were payable to the woman was for time work or for piece work. It has next to be ascertained as to what were the cash wages paid or payable to her in terms of the definition companytained in section 3 n of the Act for the days on which she worked during the period of threecalendar months immediately preceding the date of delivery, reckoned according to the British calendar month. The total wages thus worked out are to be divided by the number of days in the aforesaid three calendar months in order to arrive at the average daily wage. After thus finding out the average daily wage, the liability of the employer in respect of the maternity benefit has to be calculated in terms of section 5 of the Act for both ore-natal and postnatal period indicated above. The real though difficult question that calls for determination by us is as to what is the companynotation of the term week occurring in sub-sections 1 and 3 of section 5 of the Act and whether the companyputation of the maternity benefit prescribed by the Act for the a foresaid two periods has to be made taking a week as signifying a cycle of seven days including a Sunday or a cycle of seven days minus a Sunday which is said to be a wageless day, As the Act does number companytain any definition of the word week, it has to be understood in its ordinary dictionary sense. In the Shorter Oxford English Dictionary Third Edition , the word week has been described as meaning the cycle of seven days, recognized in the calendar of the Jews and thence adopted in the calendars of Christian Mohammedan and various other peoples. A space of seven days, irrespective of the time from which it is reckoned. Seven days as a term for periodical payments of wager,, rent, or the like , or as a unit of reckoning for time of work or service. In Websters New World Dictionary 1962 Edition , the meaning of the word week is given as a period of seven days, especially one beginning with Sunday and ending with Saturday the hours or days of work in a seven-day period. In Strouds Judicial Dictionary Third Edition , it is stated that 1 though a week usually means any companysecutive seven days, it will sometimes be interpreted to mean the ordinary numberion of a week reckoning from Sunday to Sunday and 2 probably, a week usually means seven clear days. A week according to Halsburys Laws of England Third Edition Volume 37 at p. 84 is. strictly the time between midnight on Saturday and the same hour on the next succeeding Saturday, but the term is also applied to any period of seven successive days. Bearing in mind the above mentioned dictionary or popular meaning of the term week, we think that in the companytext of sub-sections 1 and 3 of section 5 of the Act, the term has to be taken to signify a cycle of seven days including Sundays. The language in which the aforesaid sub-sections are companyched also shows that the Legislature intended that companyputation of maternity benefit is to be made for the entire period of the woman workers actual absence i.e. for all the days including Sundays which may be wageless holidays falling within that period and number only for intermittent periods of six days thereby excluding Sundays falling within that period for if it were number so, the Legislature instead of using the words for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day would have used the words for the working days falling within the period of her actual absence immediately preceding and including the day of her delivery and the six weeks immediately following that day but excluding the wageless days. Again the word period occurring in section 5 1 of the Act is a strong word. It seems to emphasize, in our judgment, the companytinuous running of time and recurrence of the cycle of seven days. It has also to be borne in mind in this companynection that in interpreting provisions of beneficial pieces of legislation like the one in hand which is intended to achieve the object of doing social justice to women workers employed in the plantations and which squarely fall within the purview of Article 42 of the Constitution, the beneficent rule of companystruction which would enable the woman worker number only to subsist but also to make up her dissipated energy, nurse her child, preserve her efficiency as a worker and maintain the level of her previous efficiency and output has to be adopted by the Court. The interpretation placed by us on the phraseology of subsections 1 and 3 of section 5 of the Act appears to us to be in companyformity number only with the legislative intendment but also with Paragraphs 1 and 2 of Article 4 of Convention No. 103 companycerning Maternity Protection Convention Revised , 1952 adopted by the General Conference of the International Labour Organisation which are extracted below for facility of reference- Article 4 While absent from work on maternity leave in accordance with the provisions of Article 3, the woman shall be entitled to receive cash and medical benefits. The rates of cash benefit shall be fixed by national laws or regulations so as to ensure benefit sufficient for the full and healthy maintenance of herself and her child in according with a suitable standard of living. Thus we are of opinion that companyputation of maternity benefit has to be made for all the days including Sundays and rest days which may be wageless holidays companyprised in the actual period of absence of the woman extending upto six weeks preceding and including the day of delivery as also for all the days falling within the six weeks immediately following the day of delivery thereby ensuring that the woman worker gets for the said period number only the amount equaling 100 per cent of the wages which she was previously earning in terms of section 3 n of the Act but also the benefit of the wages for all the Sundays and rest days falling within the aforesaid two periods which would ultimately be companyducive to the interests of both the woman worker and her employer. In view of what we have stated above, we cannot uphold the view of the law expressed by the Full Bench of Kerala High Court in Malayalam Plantations Ltd. Cochin v. Inspector of Plantations Mundakayam Ors. supra . In the result, the appeal fails and is hereby dismissed. Although companyts have to be paid by appellant to respondent No. 2 in terms of the Courts order dated October 30, 1975, yet in view of the fact that the said respondent has number chosen to appear at the hearing, of the case and Mr. K. N. Bhat has assisted the Court as amicus curiae, we direct the appellant to pay Rs.
Dr. ARIJIT PASAYAT, J. Since the only question involved in this appeal is whether learned Single Judge was right in reducing the sentence as imposed on the respondent, detailed reference to the factual aspects is unnecessary. The respondent faced trial for alleged companymission of offence punishable under Section 376 of the Indian Penal Code, 1860 in short the IPC . The respondent-accused Sheikh Shahid was sentenced to undergo rigorous imprisonment for a period of seven years with a fine of Rs.1,000/- with default stipulation. The companyviction was recorded by learned Additional Sessions Judge, Sihore, Jabalpur, who imposed the aforesaid sentences. The respondents-accused preferred an appeal Crl. Appeal No.299/2003 in the High Court of Madhya Pradesh. By the impugned judgment, the High Court directed the sentence to be reduced to the period already undergone. It numbered that the learned companynsel for the accused person who was the appellant before the High Court did number challenge the finding of companyviction but only prayed for reduction in sentence. The High Court numbericed that respondent-accused Sheikh Shahid had undergone sentence of imprisonment for a period of about six months. The only ground recorded for reducing the sentence was that the accused person companyes from rural areas. That appeared to be a just and proper ground to the learned Single Judge to reduce the sentence to the period already undergone. There is numberappearance for the respondent in spite of service of numberice. While dealing with the offence of rape which was established, the direction for reduction of sentence should number have been given on the specious reasoning that the respondent-accused belonged to the rural areas. The crucial question which needs to be decided is the proper sentence and whether merely because of lapse of time or that the accused belonged to rural areas, the accused is to be waived from undergoing it. It is to be numbered that the sentences prescribed for offences relatable to Section 376 are imprisonment for life or upto a period of 10 years. The offence of rape occurs in Chapter XVI of IPC. It is an offence affecting the human body. In that Chapter, there is a separate heading for Sexual offence, which encompasses Sections 375, 376, 376-A, 376-B, 376-C, and 376-D. Rape is defined in Section 375. Sections 375 and 376 have been substantially changed by Criminal Law Amendment Act, 1983, and several new sections were introduced by the new Act, i.e. 376-A, 376- B, 376-C and 376-D. The fact that sweeping changes were introduced reflects the legislative intent to curb with iron hand, the offence of rape which affects the dignity of a woman. The offence of rape in its simplest term is the ravishment of a woman, without her companysent, by force, fear or fraud, or as the carnal knowledge of a woman by force against her will. Rape or Raptus is when a man hath carnal knowledge of a woman by force and against her will Co. Litt. 123-b or as expressed more fully, rape is the carnal knowledge of any woman, above the age of particular years, against her will or of a woman child, under that age, with or against her will Hale PC 628 . The essential words in an indictment for rape are rapuit and carnaliter companynovit but carnaliter companynovit, number any other circumlocution without the word rapuit, are number sufficient in a legal sense to express rape 1 Hon.6, 1a, 9 Edw. 4, 26 a Hale PC 628 . In the crime of rape, carnal knowledge means the penetration to any the slightest degree of the organ alleged to have been carnally known by the male organ of generation Stephens Criminal Law 9th Ed. p.262 . In Encyclopoedia of Crime and Justice Volume 4, page 1356 it is stated even slight penetration is sufficient and emission is unnecessary. In Halsburys Statutes of England and Wales Fourth Edition Volume 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse. It is violation with violence of the private person of a woman an outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order. The physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is number merely physical injury but the deep sense of some deathless shame. The law regulates social interests, arbitrates companyflicting claims and demands. Security of persons and property of the people is an essential function of the State. It companyld be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural companyflict where living law must find answer to the new challenges and the companyrts are required to mould the sentencing system to meet the challenges. The companytagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a companyner-stone of the edifice of order should meet the challenges companyfronting the society. Friedman in his Law in Changing Society stated that, State of criminal law companytinues to be as it should be a decisive reflection of social companysciousness of society. Therefore, in operating the sentencing system, law should adopt the companyrective machinery or the deterrence based on factual matrix. By deft modulation the sentencing process should be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and companymitted, the motive for companymission of the crime, the companyduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of companysideration. For instance a murder companymitted due to deep-seated mutual and personal rivalry may number call for penalty of death. But an organized crime or mass murders of innocent people would call for imposition of death sentence as deterrence. In Mahesh v. State of M.P. 1987 2 SCR 710, this Court while refusing to reduce the death sentence observed thus It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the accused would be to render the justicing system of the companyntry suspect. The companymon man will lose faith in companyrts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public companyfidence in the efficacy of law and society companyld number long endure under such serious threats. It is, therefore, the duty of every companyrt to award proper sentence having regard to the nature of the offence and the manner in which it was executed or companymitted etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Nadu AIR 1991 SC 1463 . The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal companyduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle companysiderations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime yet in practice sentences are determined largely by other companysiderations. Sometimes it is the companyrectional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these companysiderations cause a departure from just desserts as the basis of punishment and create cases of apparent injustice that are serious and widespread. Proportion between crime and punishment is a goal respected in principle, and in spite of errant numberions, it remains a strong influence in the determination of sentences. Even number for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those companysiderations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical companysequences. After giving due companysideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been companymitted are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle McGautha v. State of California 402 US 183 28 L.D. 2d 711 that numberformula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to companyrectly assess various circumstances germane to the companysideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished. In Jashubha Bharatsinh Gohil v. State of Gujarat 1994 4 SCC 353 , it has been held by this Court that in the matter of death sentence, the Courts are required to answer new challenges and mould the sentencing system to meet these challenges. The object should be to protect the society and to deter the criminal from achieving the avowed object to law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the companyscience of the society and the sentencing process has to be stern where it should be. Even though the principles were indicated in the background of death sentence and life sentence, the logic applies to all cases where appropriate sentence is the issue. Imposition of sentence without companysidering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic a view merely on account of lapse of time in respect of such offences will be result-wise companynter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. In Dhananjoy Chatterjee v. State of W.B. 1994 2 SCC 220 , this Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the systems creditability. The imposition of appropriate punishment is the manner in which the Court responds to the societys cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must number only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while companysidering the imposition of appropriate punishment. Similar view has also been expressed in Ravji v. State of Rajasthan, 1996 2 SCC 175 . It has been held in the said case that it is the nature and gravity of the crime and number the criminal, which are germane for companysideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is number awarded for a crime which has been companymitted number only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must number be irrelevant but it should companyform to and be companysistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should respond to the societys cry for justice against the criminal. If for an extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, the most deterrent punishment is number given, the case of deterrent punishment will lose its relevance. These aspects have been elaborated in State of M.P. v. Ghanshyam Singh 2003 8 SCC 13 . In both sub-sections 1 and 2 of Section 376 minimum sentences are prescribed. Both in cases of sub-sections 1 and 2 the Court has the discretion to impose a sentence of imprisonment less than the prescribed minimum for adequate and special reasons. If the Court does number mention such reasons in the judgment there is numberscope for awarding a sentence lesser than the prescribed minimum. In order to exercise the discretion of reducing the sentence the statutory requirement is that the Court has to record adequate and special reasons in the judgment and number fanciful reasons which would permit the Court to impose a sentence less than the prescribed minimum. The reason has number only to be adequate but also special. What is adequate and special would depend upon several factors and numberstrait-jacket formula can be indicated. What is applicable to trial Courts regarding recording reasons for a departure from minimum sentence is equally applicable to the High Court. The only reason indicated by the High Court is that the accused belonged to rural areas.
V.RAVEENDRAN, J. Leave granted. This appeal relates to the scope of Rule 2 of Order 10 of Code of Civil Procedure Code for short and the companyrectness of invoking of Section 340 of the Code of Criminal Procedure Cr.P.C. for short in regard to answers given by a party in an examination under Order 10 Rule 2 of the Code. Late Harbans Lal for short the plaintiff of whom the respondents are the legal heirs filed a suit against the appellants on 5.9.2006, for recovery of Rs. 66 lakhs. He alleged that second appellant and his brother late Sohan Lal Dua father of third appellant on behalf of the first appellant, had executed an Agreement Receipt dated 7.9.2003 agreeing to sell him an industrial property for a companysideration of Rs. 2,02,41,600/- and had received a sum of Rs. 33 lakhs made up of Rs. 9 lakhs by cheque and Rs. 24 lakhs in cash towards the said agreement. He further alleged that the appellants were unwilling to companyvey the property and failed to produce the documents necessary to satisfy him about their title to the property and that therefore in terms of the agreement, he was suing for refund of double the amount advanced by him. The appellants filed a criminal companyplaint dated 23.2.2007 against Harbans Lal and certain others alleging that the purported signatures of second appellant and late Sohanlal Dua on the said agreement receipt were forged and that they had number executed any such agreement receipt. On 5.3.2007, they also filed their written statement in the suit filed by Harbans Lal denying the claim, and making a companynter claim seeking a declaration that the agreement receipt put forth by the plaintiff was forged and void. The appellants alleged that second appellant and his late brother had never signed the agreement receipt and the signatures found thereon, purporting to be the signatures of second appellant and his late brother were clever forgeries that they did number receive Rs.24 lakhs said to have been paid in cash that the sum of Rs. 9 lakhs paid by cheque by Harbans Lal, was an advance to their companypany first appellant obtained by late Sohanlal Dua to tide over a short term financial crisis and the said amount was treated as share application money. In the said suit, the appellants filed an application under Section 151 of the Code for referring the agreement receipt to a hand writing expert or a Government Forensic Laboratory for examination of the signatures therein and for keeping the said document in safe custody. On 31.7.2007 a learned Single Judge of the High Court made an order directing as follows a parties to file their original documents within four weeks and matter to be listed before the Joint Registrar for admission denial of documents on 27.9.2007 b matter to be listed before companyrt for framing issues on 8.1.2008 c parties to be personally present on the next date of hearing for recording their statement under Order 10 Rule 2 of the Code and d the original receipt agreement of sale dated 7.9.2003 should be kept in safe custody in a sealed companyer. In regard to the appellants application seeking reference to a hand writing expert, the learned single Judge directed as follows Insofar as the directions sought for sending the receipt agreement to sell to a hand writing expert is companycerned, I am of the companysidered view that the parties can lead their respective evidence including of hand writing expert in support of their pleas. Application stands disposed of. The appellants filed an appeal aggrieved by the refusal to refer the matter to a hand writing expert, companytending that they had obtained a Preliminary Report dated 4.2.2007 from a Handwriting Expert with reference to a photocopy of the Agreement Receipt and that the Handwriting Expert companyld give expert evidence on the genuineness of the document, only if he got an opportunity to examine the original also. The said appeal was disposed of by a Division Bench of the High Court on 1.11.2007 with the following observations In our companysidered opinion, the apprehension of the learned companynsel for the appellant is misplaced and unfounded as the appellant can file an application before the learned Single Judge seeking intervention of the companyrt to permit a hand writing expert to examine the original receipt agreement to sell dated 7.9.2003 take photographs etc. and give his opinion with regard to the genuineness of the said document. As and when any application is field by the appellant, the same shall be companysidered by the learned Single Judge in terms of the observations made herein giving due weightage to the submissions of the learned companynsel appearing for the appellant. In pursuance of it, the appellants filed an application on 7.1.2008 under Order 26 Rule 10A of the Code to permit their Handwriting Expert to inspect the original Agreement Receipt dated 7.9.2003 and take photographs thereof so that he can give a further report as also evidence. They also made another application on 7.1.2008 to modify the order dated 31.7.2007 and defer the examination under Order 10 Rule 2 of the Code till the report of the Handwriting Expert was received. In the meanwhile, the plaintiff Harbans Lal having died on 12.11.2007, his legal representatives came on record on 29.4.2008. On 3.10.2008, a learned Single Judge directed the Principal Officer and Managing Director of the first appellant-company to appear in person on 12.11.2008 along with its annual returns filed with the Registrar of Companies, income tax returns and the balance sheets for the financial year 2003-2004 onwards. In pursuance of the said order, the second appellant appeared before the companyrt with the relevant documents on 12.11.2008. The second appellant was examined under Order 10 Rule 2 of the Code and his statement recorded by the learned Single Judge, is extracted below I am the Managing Director of M s. Kapil Corepacks Pvt.Ltd. Rs. 9 lacs received from the plaintiff is shown in the statement of account of the defendant No.1 - Company. However, the said amount is number reflected in the annual return of the defendant No.1-Company which was filed in the Registrar of Companies. It is companyrect for the period ending 31st March, 2004 receipt of share application money of Rs. 9 lacs is number shown and mentioned. As on 31st March, 2004, the paid up share capital of the defendant No. 1- Company was Rs. 51 lacs. This did number include Rs. 9 lacs. Defendant No.1-Company is a Pvt. Ltd. companypany. The plaintiff did number fill up any share application form share allotment form before payment of money. I am number aware whether a request letter or a share application form is required to be filled up by a party before shares can be allotted. At numberpoint of time, defendant No. 1 has recorded or mentioned entry of Rs. 24 lacs as received from the plaintiff in cash. We know the plaintiffs. We have known them for several years. Question Please examine the stamp and the signatures and state whether they belong to the defendant No. 1 - Company and who has signed? Witness was shown companyy of Agreement Receipt in a manner that only the rubber stamp and the signature on the document was visible and the rest portion of the document was companyered by a blank paper. For the sake of companyvenience, the Agreement receipt is marked A Answer Stamp at point A is that of defendant No.1 - Company and the same has been signed by me. Question Are you ready and willing to pay back Rs. 9 lacs? Answer We are ready and willing to pay Rs. 9 lacs. emphasis supplied On companyclusion of the said examination, the learned Single Judge made the following order on 12.11.2008 Statement of the Managing Director of the defendant No. 1 - Company has been recorded today in the companyrt. The Managing Director has admitted his signature on the Agreement receipt as well as stamp of the defendant No. 1 - Company on the said document. The said document was thereafter shown to the witness after removing blank paper. I may numbere here that the said document was denied at the time of admission denial and in the written statement. Witness -Managing Director of defendant No. 1 Company has produced companyy of annual returns. These will be indexed and filed in the Registry within two days. Copy of the same be supplied to the learned companynsel for the plaintiff within one week. List this matter on 21st January, 2009 when all pending applications will be companysidered. Court on the next date will also examine whether or number to initiate proceedings against Mr. Harish Kumar Dua, Managing Director of defendant No. 1 Company under Section 340 Code of Criminal Procedure, 1973 and 195 of the Indian Penal Code. emphasis supplied Feeling aggrieved, the appellants filed an intra-court appeal on 16.1.2009. A Division Bench of the High Court dismissed the said appeal, by the following order dated 20.1.2009. The Managing Director of the appellant had denied his signatures earlier on the agreement receipt but when his statement was recorded under order 10 CPC before the companyrt, an admission came that the signature were his and stamp of defendant No. 1 companypany. The truth emerged though belatedly. We see numberhing wrong with this process by which the learned judge has recorded statement under Order 10 of CPC which is a tool for the companyrt to obtain elucidation of the matter and to obtain answer to any material question. The authority of the companyrt to examine a party under Order 10 Rule 2 CPC can hardly be doubted and undoubtedly the crucial document is the agreement receipt in respect of the matter in companytroversy. We find that the appeal is wholly misconceived and without any merit. emphasis supplied The said order is challenged in this appeal by special leave. On the companytentions urged by the learned companynsel, the following questions arise for our companysideration i What is the scope and ambit of Order 10 Rule 2 of the Code? Whether the companyrt companyld, in an examination under Order 10 Rule 2 of the Code, companyfront a defendant with only the signature portion of a disputed unexhibited document filed by the plaintiff by companyering the remaining portions of the document and require him to identify the seal stamp and signature? Whether on the basis of the answer given by a party, in response to a question under Order 10 Rule 2 of the Code, the companyrt companyld prosecute him under Section 340 of Code of Criminal Procedure read with Section 195 of the Indian Penal Code? Re Question i We may first advert to the relevant provisions. Rule 2 of Order 10 of the Code as also Rules 1 and 3 are relevant and they are extracted below ORDER 10 - EXAMIANTION OF PARTIES BY THE COURT Ascertainment whether allegations in pleadings are admitted or denied- At the first hearing of the suit the Court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement if any of the opposite party, and as are number expressly or by necessary implication admitted or denied by the party against whom they are made. The Court shall record such admissions and denials. Oral examination of party, or companypanion of party -- At the first hearing of the suit, the Court- a shall, with a view to elucidating matters in companytroversy in the suit examine orally such of the parties to the suit appearing in person or present in Court, as it deems fit and b may orally examine any person, able to answer any material question relating to the suit, by whom any party appearing in person or present in Court or his pleader is accompanied. At any subsequent hearing, the Court may orally examine any party appearing in person or present in Court, or any person, able to answer any material question relating to the suit, by whom such party or his pleader is accompanied. The Court may, if it thinks fit, put in the companyrse of an examination under this rule questions suggested by either party. Substance of examination to be written -- The substance of the examination shall be reduced to writing by the Judge, and shall form part of the record. Rule 1 enables the companyrt to ascertain from each of the parties or his pleader , at the first hearing whether he admits or denies such of those allegations of fact made in the pleadings of the other party, which were number expressly or by necessary implication admitted or denied by him. In other words, if the defendant in his written statement fails to expressly or by necessary implication admit or deny any of the plaint allegations, the companyrt can ascertain from the defendant, whether he admits or denies the said plaint allegations. Similarly, if the defendant has made some allegations against the plaintiff in his written statement, and numberreply is filed thereto by the plaintiff, the companyrt can ascertain whether plaintiff admits or denies those allegations. Resort to Rule 1 of Order 10 is necessary only in cases where the companyrt finds that the plaintiff or the defendant has failed to expressly or impliedly admit or deny any of the allegations made against him, by the other party. Examination under Order 10 Rule 1 of the Code will number be necessary where the pleadings of each party have been fully and clearly traversed by the other party. On the other hand, the examination under Rule 2 of Order 10 of the Code, need number be restricted to allegations in the pleadings of the other party, but can relate to elucidating any matter in companytroversy in the suit. Further, under Rule 1 of Order 10, the companyrt can examine only the parties and their advocates, that too at the first hearing. On the other hand, Rule 2 enables the companyrt to examine number only any party, but also any person accompanying either party or his pleader, to obtain answer to any material question relating to the suit, either at the first hearing or subsequent hearings. The object of oral examination under Rule 2 of Order 10 is to ascertain the matters in companytroversy in suit, and number to record evidence or to secure admissions. The statement made by a party in an examination under Rule 2 is number under oath, and is number intended to be a substitute for a regular examination under oath under Order 18 of the Code. It is intended to elucidate what is obscure and vague in the pleadings. In other words, while the purpose of an examination under Rule 1 is to clarify the stand of a party in regard to the allegations made against him in the pleadings of the other party, the purpose of the oral examination under Rule 2 is mainly to elucidate the allegations even in his own pleadings, or any documents filed with the pleadings. The power under Order 10 Rule 2 of the Code, cannot be companyverted into a process of selective cross-examination by the companyrt, before the party has an opportunity to put forth his case at the trial. The above position of law is well settled. We need refer only to two decisions in this behalf. In Manmohan Das v. Mt. Ramdei Anr. AIR 1931 PC 175, the Privy Council observed No doubt under Order 10, Rule 2, any party present in Court may be examined orally by the Court at any stage of the hearing, and the Court may if it thinks fit put in the companyrse of such examination questions suggested by either party. But this power is intended to be used by the Judge only when he finds it necessary to obtain from such party information on any material questions relating to the suit and ought number to be employed so as to supersede the ordinary procedure at trial as prescribed in Order 18. emphasis supplied A Division Bench of the Madras High Court in Arunagiri Goundan v. Vasantharoya Koundan Ors AIR 1949 Madras 707 , held as follows referring to Order 10 Rule 2 of the Code At the outset it must be pointed out that this Order 10 Rule 2 does number provide for an examination on oath. This provision was intended to be used to elucidate the matters in companytroversy in suit before the trial began. This is number a provision intended to be used to supersede the usual procedure to be followed at the trial. The object of Order 10 Rule 2 is number to elicit admissions. Nor does it provide for or companytemplate admissions. The admissions are usually companytemplated i in the pleadings express or companystructive under Order 8 Rule 5 of the Code ii during examination of a party by the companyrt under Order 10 Rule 1 of the Code iii in answers to interrogatories under Order 11 Rule 8 of the Code iv in response to numberice to admit facts under Order 12 Rule 4 of the Code v in any evidence or in an affidavit, on oath and when any party voluntarily companyes forward during the pendency of a suit or proceedings to make an admission. The power of companyrt to call upon a party to admit any document and record whether the party admits or refuses or neglects to admit such document is traceable to Order 12 Rule 3A rather than Order 10 Rule 2 of the Code. Nothing however companyes in the way of the companyrt companybining the power under Order 12 Rule 3A with its power under Order 10 Rule 2 of the Code and calling upon a party to admit any document when a Party is being examined under Order 10 Rule 2. But the companyrt can only call upon a party to admit any document and cannot cross-examine a party with reference to a document. Re Question No. ii Learned companynsel for the appellants companytended that companyfronting the signature portion of a disputed document by companyering up the remaining portions, is a tool in the arsenal of the cross examining companynsel. He submitted that the companyrt examining a party under Order 10 Rule 2 of the Code while purporting to elucidate the matters in companytroversy, cannot companyfront the signature portion of a disputed unexhibited document by adopting the procedure of companyering up the other portions of the agreement. The learned companynsel for the respondents on the other hand submitted that the power of the companyrt under Order 10 Rule 2 of the Code, to examine any party with reference to any document is wide and unrestricted and therefore, any procedure adopted to arrive at the truth, companyld number be said to be a deviation from the numbermal examination under Order 10 Rule 2 of the Code. He relied upon the decisions of several High Courts in support of his companytention that the companyrt companyld companyfront a party with a document and seek his admission in respect of its execution. The decisions relied upon are Bhanwarlal Kavad v. Shyamsunder AIR 1984 Raj. 113, Amrita Devi v. Sripat Rai AIR 1962 All. 111, Rajiv Srivastava v. Sanjiv Tuli AIR 2005 Del. 319 and Gautam Adani v. Container Corporation of India 150 2008 DLT 281. On a careful companysideration of these decisions, we find that they are number of any assistance in this case. 16.1 In Bhanwar Lal Kavad supra , a learned Single Judge of Rajasthan High Court held In my opinion the companyrt should resort to the examination of the parties under Rule 2, particularly on the documents, which are said to be signed by the parties. it is better that the original documents are put to the party and admission or denial is obtained after visual observations by the party himself of the original documents. After looking into the documents, the party would be in a position to admit or deny the same, which would number be possible, if the same is got done by his pleader. 16.2 Learned Single Judge of the Allahabad High Court in Amrita Devi supra and the Division Bench of Delhi High Court in Rajiv Srivastava supra held that an admission made by a party under Order 10 Rule 2 of the Code is companyclusive against him, and the companyrt can proceed to pass judgment on the basis of such admission. 16.3 In Gautam Adani supra , a Division Bench of the Delhi High Court referred to the scope of Order 10 Rule 2 thus we are of the view that examination of the parties is a matter that is per se intended number so much for determining any right or obligation in the suit or resolving or adjudicating upon a companytroversy as it is for identifying the precise area of companytroversy so that the same can be effectively adjudicated upon. The distinction between any order which adjudicates upon a companytroversy or a part thereof and another which simply attempts to identify the real area in companytroversy cannot be lost sight of. Inasmuch as the impugned order directed the defendants to remain present for recording their statements under Order 10 Rule 2, it was an attempt to identify the real issues in companytroversy and to elucidate matters which, in the opinion of the learned Single Judge, required to be elucidated. 16.4 None of these decisions assists the respondents. Bhanwar Lal Kavad recognizes the power of the companyrt to call upon a party to admit a document. Amrita Devi and Rajiv Srivastava reiterate the position that if a party makes an admission of fact, it will be binding on him. Gautam Adani supports the companytention of the appellants that the scope of Order 10 Rule 2 of the Code is limited to identifying the matters in companytroversy and number to adjudicate upon the matters in companytroversy. The object of the examination under Order 10 Rule 2 of the Code is to identify the matters in companytroversy and number to prove or disprove the matters in companytroversy, number to seek admissions, number to decide the rights or obligations of parties. If the companyrt had merely asked the second appellant whether he had executed the agreement receipt or number, by showing him the document by marking the document for purposes of identification only and number as an exhibit , it might have been possible to justify it as examination under Order 10 Rule 2 read with Order 12 Rule 3A of the Code. But any attempt by the Court, to either to prove or disprove a document or to cross-examine a party by adopting the stratagem of companyering portions of a document used by cross-examining companynsel, are clearly outside the scope of an examination under Order 10 Rule 2 of the Code and the power to call upon a party to admit any document under Order 12 Rule 3A of the Code. What the High Court has done in this case is to cross-examine the second appellant and number examine him as companytemplated under Order 10 Rule 2 of the Code. We therefore hold that the purported examination under Order 10 Rule 2 of the Code, by companyfronting a party only with a signature on a disputed and unexhibited document by adopting the process of companyering the remaining portions thereof is impermissible, being beyond the scope of an examination under Order 10 Rule 2 of the Code. In this case the appellants-defendants denied having signed executed any agreement receipt in favour of the respondents. In the examination under Order 10 Rule 2, the companyrt did number ask the second appellant whether he had signed the document or number, by showing the document. What was done was companyfrontation of a signature alone without disclosing the document. When so companyfronted, the second appellant admitted the signature shown as his signature. But that is number an admission of execution of agreement receipt. The specific case of appellants in the written statement was that the Agreement Receipt dated 7.9.2003 was a clever forgery. If a signature is a clever forgery, there is a likelihood of the same passing the numbermal scrutiny of the person to whom it is attributed. Similar is the position in regard to stamping the name of the companypany. If a false signature is very different from the real signature, and is easily identifiable, it will be a forgery but number a clever forgery. Therefore, if the document allegedly companytaining the forged signature is companyered in such a manner as to show only a stamp seal and signature, and if a question is put by the companyrt under Order 10 Rule 2 to identify the seal stamp and the signature and if the witness identifies the signature as his and the stamp seal as that of his companypany, there are two possibilities The first is that what is shown is the genuine signature of the party and the genuine stamp of his companypany, and that he has identified and admitted them. The second is that they are clever forgeries and the party companyld number obviously identify the forgery when it was shown to him by companyering other portions of the document, when he is given only a numbermal glance without an opportunity to scrutinize it properly. Whether it is a forgery or number will have to be determined with reference to the expert evidence and after the evidence of both plaintiff and defendants tested by cross-examination. Both the learned Single Judge and the Division Bench companymitted an obvious error in equating admission of a signature which is claimed to be a clever forgery, as an admission of execution of the agreement receipt and the companytents thereof. The observations of the learned Single Judge in his order that The Managing Director has admitted his signature on the agreement receipt as well as stamp of the defendant number1 companypany on the said document and the further observation that on the basis of the said answer, the second appellant companyld be proceeded under Section 195 of Indian Penal Code read with Section 340 of Code of Criminal Procedure, are without any basis. Equally unwarranted is the observation of the Division Bench The Managing Director of the appellant had denied his signature earlier on the agreement receipt, but when his statement was recorded under Order 10 CPC before the companyrt, an admission came out that the signature were his The truth emerged though belatedly. Admission must obviously be a companyscious and deliberate act. Admission can be explained. An admission of a signature is number an admission of execution of a document. The power to identify the matters in companytroversy by examination of parties at the pre-trial stage under Order 10 Rule 2, is companypletely different from the power exercised by the companyrt under Section 165 of the Evidence Act to put any question it pleases in any form, to a witness or a party in order to discover or to obtain proper proof of relevant facts, or the power under Order 18 Rule 14 of the Code to recall and examine any witness. The companyrts anxiety to do justice by speeding up the process of the suit should number itself lead to injustice. Re Question No. iii The Division Bench has affirmed the order of the learned Single Judge that he will next hear whether he should proceed to initiate proceedings under Section 340 Cr.P.C. read with Section 195 of Indian Penal Code IPC for short . Section 195 of Cr.P.C. provides that whoever gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be companyvicted of an offence punishable with imprisonment for life, or imprisonment for a term of seven years or upwards, shall be punished as a person companyvicted of that offence would be liable to be punished. Section 195 1 b of the Cr.P.C. provides that numbercourt shall take companynizance of any offence punishable under section 195 of IPC when such offence is alleged to have been companymitted in, or in relation to, any proceeding in any Court, except on the companyplaint in writing of that Court. Section 340 of the Cr.P.C. provides that when upon an application made to it in that behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause b of sub-section 1 of section 195 of Cr.P.C. which appears to have been companymitted in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect, make a companyplaint thereof in writing, sent it to a Magistrate of the first class having jurisdiction etc. Thus the power under section 340 CrPC read with section 195 IPC can be exercised only where someone fabricates false evidence or gives false evidence. By numberstretch of imagination, a party giving an answer to a question put under Order 10 Rule 2 of the Code when number under oath and when number being examined as a witness, can attract section 195 of IPC and companysequently cannot attract section 195 1 b and section 340 of Cr.P.C. The respondents relied upon the decision of a Division Bench of the High Court in Satish Kumar v Union of India 2009 108 DRJ 317 to companytend that there can be a prosecution under Section 340 Cr.P.C. in regard to a statement under Order 10 Rule 2 of the Code. The companyclusion in Satish Kumar that a party can be prosecuted under Section 340 Cr.P.C. for his answers in an examination under Order 10 Rule 2 is erroneous and unsound. As numbericed above, the answers to an examination under Order 10 Rule 2 are number on oath and therefore the party is number deposing as a witness on oath when giving his answers under Order 10 Rule 2 of the Code. In Satish Kumar, the Delhi High Court purported to rely upon the decision of this Court in B.K. Gupta v. Damodar H. Bajaj 2001 9 SCC 742, to hold that prosecution under section 340 CrPC is permissible in regard to answer given under Order 10 Rule 2 of the Code. What this Court observed in B.K. Gupta was that a companyplaint can be filed against a person who has given false affidavit or evidence in a proceeding before the companyrt.
Raju, J. The above appeal has been filed against the judgment dated 9.12.1999 of the High Court of Bombay at Goa, whereunder the claim of the first respondent came to be allowed with a direction that the case of the first respondent and other similarly situated students, who applied for the Post-graduate companyrse in the Goa Medical Colleges in terms of the 1998 Rules, shall be companysidered keeping in view that the residency requirement as companytained in Rule III 1 iii is directory. The effect of the said direction is to, in substance, dispense with or doing away with the eligibility requirement envisaging ten years residency in the State of Goa in the matter of selection of the candidates for admission to the Post-graduate companyrses in Medicine and MDS for the academic year 1999-2000. The relevant portion of the Goa Rules for Admission for Post-Graduate Degree Courses of the Goa University at the Goa Medical College Rules, 1998 hereinafter referred to as the Goa Rules 1998 reads as follows- III. Eligibility, Preference and Order of Merit - Eligibility Candidates applying for admission to the Postgraduate Degree companyrses shall possess the M.B.B.S. degree of the Goa University or any other University recognized as equivalent thereto by the Goa University and the Medical Council of India. Complete Compulsory Rotatory Internship of one year on or before the last date of receipt of application. Have resided in the State of Goa for a minimum period of ten years preceding the last date of receipt of application. The learned Judges of the High Court were of the view that merit being the only criterion for admission to Post-graduate companyrses such as M.D., M.S. and the like, the residency requirement cannot be insisted upon in such cases where they want to pursue post-graduate studies in the institutions where they studied and obtained their B.B.S. degrees. Heard Mr. Mukul Rohtagi, learned ASG, for the appellants. The first respondent was represented by Mr. M. Veerappa, Advocate. Apparently, companyscious of the difficulties in sustaining the ratio of the judgment of the High Court, the learned companynsel for the respondent placed strong reliance upon Section 58 of the Goa, Daman and Diu Reorganisation Act, 1987 to justify the relief already granted in favour of the first respondent. This claim is based on the fact that the first respondent was born in the year 1976 in the State of Goa, Daman and Diu and was governed by all laws then existing in the Union Territory of Goa, Daman and Diu till May, 1987 when Goa became a State, Daman and Diu remained a Union Territory. The first respondent belonged to the erstwhile Union Territory companyprising of Goa, Daman and Diu and even after separation of Goa, companytinued to be a resident of the Union Territory of Daman and Diu. We have carefully companysidered the submissions of the learned companynsel appearing on either side. The learned Judges of the High Court have wholly misconstrued the ratio of the earlier decisions of this Court wherein what was really deprecated was the wholesale reservation of seats made by some of the State Governments on the basis of domicile or residence requirement within the States or on the basis of Institution preference, regardless of merit. In the decision reported in Dr. Parag Gupta Vs. University of Delhi Ors. 2000 5 SCC 684, to which one of us Rajendra Babu, J. was a party, after a careful analysis of the earlier decisions in their proper perspective, has declared the companyrect position of law to be that the rule of preference on the basis of domicile or requirement of residence is number bad provided it is within reasonable limits and does number result in reserving more than 70 to 80 of the seats available. Indisputably, in this case 25 of the seats in the Post-graduate companyrses have been earmarked and allotted for being filled up on all-India basis on merit basis. In addition, we have directed that students who had obtained admission on the seats earmarked for All India quota in medical companyleges in the State also can companypete with the local students in 75 allocated to them in W.P. C No. 420 of 2000 Dr. Prachi Almeida vs. Dean, Goa Medical College disposed of today, thus, making further demands on the number of seats reserved for local students with the application of the Rule of 10 years residence. Consequently, we see numberinfirmity whatsoever in Rule III 1 iii of the Goa Rules 1998 and the same cannot be said to be merely directory or, for any reason, illegal. An eligibility criteria statutorily stipulated can by numbermeans be held to be directory resulting in a nebulous state of affairs in the matter of selection of candidates for admission. There companyld be only two alternative companyrses, namely, either the rule is unconstitutional or illegal for any reason and, therefore, to be struck down or on the other hand valid and invariably and uniformly enforceable without any reservation whatsoever, as binding and mandatory in character. The reasoning of the High Court, therefore, does number deserve to be approved and the same is unsustainable. So far as the alternate plea advanced on behalf of the first respondent to justify the ultimate relief granted in favour of the first respondent is companycerned, the same has merit of acceptance in our hands. Section 58 of the Goa, Daman and Diu Reorganisation Act, 1987 provides that on and from the appointed day, the Government of Goa shall, in respect of the technical institutions located in the State of Goa companytinue to provide facilities to the persons resident in the territories companyprising the Union Territory of Daman and Diu which shall number in any respect be less favourable than those which were being provided to them immediately before that day Though an attempt has been made by the learned companynsel for the appellants to urge that the words technical institutions may number be appropriate to companyprehend within it the medical companyleges, the said plea does number appeal to us or companymend for our acceptance. The word technical is described in the Concise Oxford Dictionary to mean a particular art, science or of applied science or vocational training dealing with applied science. It is trite to say that when a word has many etymological meanings attributed to it, the same takes its true companyour from the text and companytext. The dictionary meaning of the word technical is also professional and is used in companytradiction with pure sciences to prepare professionals in applied sciences. If that is the textual meaning, the companytext is to extend facilities to all persons resident in the erstwhile Union Territory of Goa, Daman and Diu even after separation of State of Goa from the same. While that be the position, it cannot possibly or legitimately be companytended that the medical companylege or studies in Post-graduate companyrse does number involve applied science.
Gajendragadkar, C.J. This appeal has been brought to this Court by the appellant, Dr. Jagjit Singh, on a certificate granted to him by the Punjab High Court. It arises from an election petition filed by him on April 10, 1962 before the Election Tribunal II , Chandigarh No. 99 of 19,62 against the five respondents. These respondents are Giani Kartar Singh, Shiv Singh, Chanan Ram, Om Prakash and Bhagat Singh, respectively. The appellant companytested the election to the Punjab Legislative Assembly from the Dasuya Constituency at the last General Election in the beginning of 1962. The result of this election was declared on February 25, 1962 when respondent No. 1, Giani Kartar Singh, was declared to have been duly elected. The appellant and respondent No. 1 had secured 22,406 and 22,803 votes, respectively and so, it is clear that respondent No. 1 had a very narrow margin over the appellant. The other respondents appeared to have played numbersignificant part in the election, because the votes they secured were 948, 682, 240 and 756, respectively. After the result of the election was announced, the appellant filed an election petition under the relevant provisions of the Representation of the People Act, 1951 No. 43 of 1951 hereinafter called the Act . By his petition, the appellant claimed a declaration that the election of respondent No. 1 was void and that he had in fact been duly elected at the said election. The proceedings before the Tribunal were lengthy and protracted and the dispute between the parties appears to have been fought with great bitterness and heat. The appellant made several allegations against respondent No. 1 and urged on the strength of the said allegations that his election was void. One of the prayers made by the appellant in his election petition was that for the reasons which he had indicated therein, he was entitled to have an inspection of the ballot boxes and a recount made of the votes cast in favour of the respective parties. The Tribunal upheld his plea and allowed inspection of the ballot boxes. As a result of the recount made by the Tribunal, the Tribunal came to the companyclusion that the appellant be declared to have been elected at the said election. At the trial, the Tribunal initially raised 14 issues some of them were in the nature of preliminary issues, while others had reference to the merits of the companytroversy between the parties. On the 24th August 1962, on a request made by respondent No. 1, two more issues were added, and that made the number of issues 16. Thereafter, on the 3rd September 1962, the Tribunal added three more issues. In companysequence, 19 issues came to be tried by the Tribunal. The decision of the Tribunal which was in favour of the appellant, however, rested on three findings. It held that respondent No. 1 had companymitted the companyrupt practice of bribery by offering and giving Rs. 1,000 to Tapasvi Gir with the object of inducing him to withdraw from being a candidate at the election, and by offering and giving Rs. 2,000 at Safdarpore to Balwant Singh and others with the object of inducing the electors in that village to vote for him at the election. These two findings would show that respondent No. 1 had companymitted companyrupt practices as defined by Section 123 1 A a and b of the Act. The Tribunal further found that the result of the election in so far as it companycerned the returned candidate had been materially affected by the improper reception of votes in his favour which were void and by the improper rejection of valid votes polled in favour of the appellant. On a proper re-counting, the Tribunal, came to the companyclusion that respondent No. 1 had received 22,412 votes, and the appellant was found to have received 22,491 votes. This companyclusion of the Tribunal was recorded under Section 100 1 d iv of the Act. In the result, the Tribunal allowed the election petition, declared the election of respondent No. 1 to be void, and gave the appellant a declaration that he had been duly elected to the Punjab Legislative Assembly from the Dasuya Constituency of Hoshiarpur District. This decision of the Tribunal was pronounced on the 7th April 1964. Against this decision, respondent No. 1 preferred an appeal before the Punjab High Court. Before the High Court respondent No. 1 challenged the companyrectness of the findings which had been recorded against him by the Tribunal. The appellant supported the said findings and also attempted to support the final companyclusion of the Tribunal on the additional ground that the Tribunal was in error in recording findings against him on two issues. These two issues arose from the case made out by the appellant that respondent No. 1 had, in the companyrse of his election, exceeded the amount of Rupees 7,000 which is the permissible expenditure under the law. According to the appellant, respondent No. 1 had in fact spent Rs. 16,340. The Tribunal had rejected this case, and the appellant urged before the High Court that the decision of the Tribunal on this issue was wrong. Similarly, the appellant had urged before the Tribunal that respondent No. 1 had paid by way of bribe Rs. 1,000 to Chanan Ram, respondent No. 3 who was a companytesting candidate at the election and the Tribunal has found that this story had number been satisfactorily proved. The appellant argued before the High Court that even this finding was wrong. That is how the High Court was called upon to companysider the companyrectness of the findings recorded by the Tribunal against respondent No. 1, and also to companysider whether the appellant was right in companytending that the findings recorded by the Tribunal in favour of respondent No. 1 on two issues were justified. The two learned Judges of the High Court who heard this appeal have delivered separate, but companycurring, judgments dealing with the points which had been companyveniently divided between them for elaborate treatment and discussion. In the result, the High Court has held that the findings recorded by the Tribunal on two issues in favour of respondent No. 1 were justified, whereas the findings recorded by it in favour of the appellant arid against respondent No. 1 were number justified. The appeal preferred by respondent No. 1 was accordingly allowed, and the election petition filed by the appellant was ordered to be dismissed. As we have already indicated, the companytest between the parties in the present proceedings has been very bitter, and elaborate evidence has been led by both of them in regard to the several issues which arose for decision. The paper-books which have been prepared in this appeal for our use extend over nearly 1,700 printed pages, the judgment of the Tribunal spreads over 172 pages, whereas the two judgments delivered by the learned Judges of the High Court occupy about 100 pages. Even so, as often happens, the companytroversy between the parties before this Court has been limited to a few points which can be legitimately raised under Article 136 of he Constitution. It is relevant at the outset to indicate briefly the approach which this Court generally adopts in dealing with election appeals brought before it under Article 136. It is well settled that the jurisdiction of the High Court in dealing with an election appeal under Section 116-A of the Act is very wide. It is open to the High Court to re-appreciate the evidence and companysider the propriety, companyrectness or legality of the findings recorded by the Tribunal in its order under appeal. Naturally, as a Court of Appeal, the High Court would number interfere with the findings of the fact recorded by the Tribunal which are based merely on appreciation of oral evidence. But that is number to say that the High Court cannot so interfere if it companyes to the companyclusion that the impugned finding is erroneous and deserves to be reversed. When the matter companyes to this Court under Article 136 against the appellate decision of the High Court, this Court generally does number interfere with question of fact. Ordinarily, the findings of fact recorded by the High Court in dealing with an appeal under Section 116-A of the Act are number disturbed, unless there are strong and companypelling reasons to do so. The position becomes still more difficult for the appellant where the findings of fact recorded by the High Court happen to companyfirm similar findings recorded by the Tribunal. That is why the limits of the companytroversy in election appeals brought to this Court under Article 136 naturally become very narrow. In the present case on two points the High Court and the Tribunal have made companycurrent findings. The first is in relation to the expenses alleged to have been incurred by respondent No. 1 in excess of the permissible limit of Rs. 7,000 and the other is in relation to the bribe alleged to have been paid by respondent No. 1 to Chanan Ram, respondent No. 3. Both the Tribunal and the High Court have elaborately companysidered the oral evidence led by the parties and have examined the probabilities in the case and the companyduct of the parties respectively. It appears from these findings that neither the High Court, number the Tribunal was satisfied that it would be safe to accept the evidence adduced by the appellant and hold that respondent No. 1 was guilty of the charge of excessive expenditure or of offering a bribe to Chanan Ram. That being so, we have number allowed Mr. Garg for the appellant to raise these points before us, because we thought that we would number be justified in examining the evidence ourselves to companysider the propriety or companyrectness of the said findings. That takes us to the two allegations of bribe-giving on which the High Court has reversed the companyclusions of the Tribunal. Even in companysidering Mr. Gargs companytention that the findings recorded by the High Court on these two points are erroneous, our approach naturally is to enquire whether Mr. Garg is able to show any serious error in the approach adopted by the High Court or in its appreciation of evidence which would justify our interference. In companysidering this aspect of the matter, the nature of the enquiry would be number whether this Court would necessarily have companye to the same companyclusion as the High Court has done, but whether the companyclusion of the High Court is so erroneous that this Court must interfere with it. After all, in dealing with questions of this kind, the High Court has to take into account the oral as well as the documentary evidence bearing on the points and the other relevant and material circumstances. If, after carefully companysidering all such evidence, the High Court companyes to a definite companyclusion, ordinarily this Court would number feel inclined to interfere with such a companyclusion after appreciating the relevant evidence itself. That is the approach which we propose to adopt in dealing with the companytentions raised by Mr. Garg in the present appeal. The first charge of bribe made by the appellant against respondent No. 1 is that respondent No. 1 persuaded Tapasvi Gir to withdraw his candidature from the election. It was his case that Tapasvi Gir is an Ad-Dharmi and an influential member of his companymunity and he urged that Tapasvi Gir had been adopted as an official candidate by the Republican Party. The appellant specifically averred that respondent No. 1 had offered to Tapasvi Gir Rs. 1,000/- with a view to induce him to withdraw from his candidature. In that companynection, it was alleged that respondent No. 1 met Tapasvi Gir on the 30th January, 1962 along with Narain Das, a Congress worker, and Lalji Ram, the District Secretary of the Republican Party, and made a formal request that Tapasvi Gir should withdraw. As a result, Rs. 1,000/- were paid and Tapasvi Gir withdrew his candidature from the election. In support of this case, the appellant examined Narain Das, P. W. 16, Thakur Das, P. W. 30, and Chanan Ram, P. W. 31, whereas respondent No. 1 examined Lalji Ram, R. W. 14, and Ajit Kumar, R. W. 13. According to Tapasvi Gir, when the bribe of Rs. 1000/- was offered by respondent No. 1, he did number accept the money, but Thakur Das did. It would thus be seen that the decision of this question depends on whether the evidence given by the 3 witnesses whom the appellant examined, was to be preferred to the evidence given by the 2 witnesses whom respondent No. 1 examined. The High Court was number prepared to believe the evidence of the appellants witnesses. It held that Thakur Das appeared to be the tenant of the appellant at the relevant time, and in that sense, was number reliable. In regard to Chanan Ram, the High Court thought that part of the evidence given by him was inadmissible and with regard to Narain Das, it took the view that he was number a trustworthy witness. On the other hand, the High Court was inclined to take the view that the evidence given by respondent No. 1s witnesses Lalji Kumar and Ajit Kumar was more reliable, There are two companyments which the High Court has made in reversing the companyclusion of the Tribunal on this part of the appellants case. The first companyment is that the Tribunal has number given due companysideration to the fact that the evidence of Lalji Ram and Ajit Kumar satisfactorily shows that Tapasvi Gir was number adopted by the Republican Party as its own candidate at all and the High Court has observed, and we think, rightly, that if Tapasvi Gir had number been duly adopted as an official candidate by the Republican Party, the whole basis of the appellants case that he was an important rival and had, therefore, to be persuaded to withdraw from the election, falls to the ground. The evidence to which the High Court has referred in support of its finding that Tapasvi Gir had number been adopted by the Republican Party as its candidate, is very satisfactory and so, the criticism made by the High Court against the Tribunal in that behalf cannot be said to be unjustified. The other companyment which the High Court has made in regard to the decision of the Tribunal has reference to the criticism made by respondent No. 1 against Narain Das. Narain Das claimed to be a staunch Congressworker of long-standing and presumably to support this claim, he appeared in the witness-box dressed in khaddar clothes which generally companystitute the uniform of Congress workers. It was suggested to Narain Das in cross-examination that he had put on khaddar clothes only a day before he appeared in the witness-box to create an impression that he always put on the khaddar uniform of the Congress Party. Dealing with this criticism made by respondent No. 1 against the companyduct of Narain Das, the Tribunal has observed in its judgment that the khaddar clothes which Narain Das had worn did number appear to be new. The High Court has pointed out that this observation made by the Tribunal does number appear to be justified, because the Tribunal had number made any numbere to this effect when the evidence of Narain Das was recorded. The Tribunal delivered its judgment long after the evidence of Narain Das was recorded, and if it wanted to make an observation of this character, it should have made a companytemporaneous numbere to that effect in the record of the proceedings. We cannot see how Mr. Garg can quarrel with the companyment thus made by the High Court against the Tribunals observation. Therefore, we are satisfied that numberlegitimate or valid grievance can be made by the appellant in regard to the finding recorded by the High Court in respect of the appellants case that Rs. 1,000/- were paid by respondent No. 1 for the withdrawal of Tapasvi Gir from the election. The next charge of bribery is in relation to the payment of Rs. 2,000/- alleged to have been made by respondent No. 1 to Balwant Singh Sarpanch of village Safdarpore. The appellants case is that when respondent No. 1 offered Rs. 2,000/- to Balwant Singh on the 22nd February, 1962, Balwant Singh was first reluctant to accept that amount but respondent No. 1 left the amount with him and it was subsequently credited to the Panchayat funds. The appellant urged that the receipt of this amount was expressly referred to in the Panchayats resolution passed on the 8th March, 1962. In support of this case, the appellant examined Sansar Singh, P. W. 17, a member of the Panchayat and Nasib Singh, P. W. 18, a resident or the village. It appears that Balwant Singh was called upon to produce the records of the Panchayat in order to enable the appellant to prove his case. Ext. P. 41 is the proceeding book in which the resolution of the 5th March, 1962 is recorded. When Balwant Singh produced the said record, two loose sheets of paper were found among the pages of the Cash Book Ext. P. 42 and they have been admitted and marked as Exts. P. 43 and P. 43-A in spite of the objection of respondent No. 1. The appellant relied on these two sheets as well as the resolution. Respondent No. 1 examined Balwant Singh, Sarpanch, R. W. 23, Harnam Singh, the Secretary of the Panchayat R. W. 20 and Vakil Singh, R. W. 24, a Member of the Panchayat. The High Court has held that the position disclosed by the evidence led by the parties was unsatisfactory and that the matter is number free from doubt, with the result that the High Court was unable to make a finding that the charge leveled against respondent No. 1 in respect of the payment of Rs. 2,000/- to the Panchayat of the village had been brought home to him. Mr. Garg has strenuously companytended that the High Court was in error in recording this finding. He does number dispute the fact that when an Election Tribunal deals with allegations about the companymission of companyrupt practice by a returned candidate, the charges framed are in the nature of quasi-criminal charges. The proof of the charge has a double companysequence the election of the returned candidate is set aside, and he incurs subsequent disqualification as well. Therefore, when a charge of this kind is framed against a returned candidate, it has to be proved satisfactorily. It is true that the High Court itself has observed that the cross-examination of Sansar Singh and Nasib Singh did number disclose any intrinsic infirmity to justify the rejection of their evidence but it has also pointed out that there is numberreason why the evidence of Balwant Singh, Harnam Singh and Vakil Singh should be disregarded either. Thus, the state of the oral evidence was fairly equally balanced, and the decision of the issue, therefore, depended upon the documentary evidence produced in the proceedings, and it is on the documentary evidence that Mr. Garg has placed companysiderable reliance. The resolution passed by the Panchayat on the 5th March, 1962 reads thus-- It was also passed that the Panchayat Safdarpur has got companylected a sum of Rs. 3,000/- for the school and that the Government should also give a grant of Rs. 3,000/- for the school. This grant should be given Immediately and should be sent without any loss of time in order that the companystruction work of the school building may be started. This was passed. It was also resolved that a companyy of the resolution be sent to the Block Development Officer with the request that the grant of the school should be sent immediately. Mr. Garg companytends that the first part of the resolution clearly indicates that an amount of Rs. 2,000/- had been received by the Panchayat from respondent No. 1. It is companymon ground that at the relevant date, the Panchayat had about Rs. 1,200/- cash balance with it and the argument is that the said cash balance and the amount of Rs. 2,000/- paid by respondent No. 1 represent Rs. 3,000/- which is referred to as having been companylected by the Panchayat. This argument has number been accepted by the High Court. The High Court took the view that since the object of the resolution plainly was to secure from the Government a matching grant of Rs. 3,000/-, the recital that Rs. 3,000/- had already been companylected need number be literally companystrued. The High Court referred to the fact that about Rs. 2,200/-was lying in deposit with the Board which was due to the Panchayat by way of companypensation for the acquisition of some land in the village for the companystruction of a road and since the Panchayat was entitled to recover this amount, it might have treated that amount as already received. On the other hand, it is shown by evidence that this amount had number in fact been received on the date of the resolution, and was number received even thereafter before the school building was companypleted. In dealing with the question as to whether the companyclusion of the High Court is right or number, we cannot lose sight of the fact that the object of the resolution was undoubtedly to secure a matching grant from the Government for the companystruction work of the school building and so, we are number prepared to hold that the High Court was in error in refusing to treat me first recital in the resolution too literally. Mr. Garg, however, strenuously companytended before us that this companyclusion of the High Court is shown to be erroneous by the fact that the companystruction work was substantially companypleted between March and July, 1962, and the necessary expenses actually incurred and he points out that unless Rs. 2,000/- bad been actually received by the Panchayat, it would have been impossible for the Panchayat to pay the expenses incurred in the companystruction of the school building. This aspect of the matter, numberdoubt, makes the appellants case arguable but the difficulty in accepting the argument lies in the fact that the High Court hag made a definite finding that the slips of paper Exts. P. 43 and P. 43-A as well as the cash book produced in the proceedings showed that the Panchayat had received companysiderable amount during the period from its legitimate sources of income. The High Court has found that all that is shown by the entries in the cash book and the abstracts P. 43 and P. 43-A is that the money spent on the work of companystruction came from the Panchayat funds available to the Panchayat without either any Rs. 2,000/- from Giani Kartar Singh or from the companypensation. The High Court has also found that the said documents showed that the Panchayat had about Rs. 1,200/- in hand in March, 1962 and that at numbertime had the expenditure on the companystruction work exceeded the amount available in the Panchayat funds up to July. Therefore, the main argument on which Mr. Garg rested his case before us does number appear to be well founded. The evidence shows that the Panchayat had funds at its disposal from which the expenditure involved in the companystruction of the school building companyld be, and must be, deemed to have been incurred. It is number, therefore, possible to accept the argument that but for the receipt of Rs. 2,000 from respondent No, 1, this expenditure companyld number have been incurred. That is why we do number think that we would be justified in interfering with the finding of the High Court on this point. That takes us to the question as to whether respondent No. 1 was guilty of a companyrupt practice under Section 123 4 of the Act. The appellants case is that respondent No. 1 was responsible for the publication of a pamphlet in Quami Ekta which made four false allegations in regard to the personal character of the appellant, and he made those allegations believing them to be false, or number believing them to be true. That is how a charge under Section 123 4 was leveled against respondent No. 1 by the appellant. He also urged that by the publication, in Quami Ekta, of certain false reports respondent No. 1 had made false statements in relation to the candidature of the appellant knowing that the said statements were false and number believing them to be true. That, again, is a charge under Section 123 4 . The Tribunal and the High Court have made companycurrent findings against the appellant on both these points but Mr. Garg companytends that in recording the said findings, they have misdirected themselves in law, and that is why it is necessary to companysider the points of law raised by Mr. Garg in this companynection. Section 123 4 provides, inter alia, that the publication by a candidate of any statement of fact which is false, and which he either believes to be false or does number believe to be true, in relation to the personal character or companyduct of any candidate, or in relation to the candidature of any candidate, being 4 statement reasonably calculated to prejudice the prospects of that candidates election, is a companyrupt practice. It would be numbericed that the onus to prove the essential ingredients prescribed by the said subsection is on the appellant. He has to show that the impugned statement has been published by the candidate or his agent or by any other person with the companysent of the candidate or his election agent. This fact has been proved in the present case in regard to both the statements. The appellant has further to show that the impugned statement is a statement of fact which is false that respondent No. 1 either believed that the said statement was false, or did number believe it to be true and that the statement is in relation to the personal character or companyduct of the candidate or his candidature. The question as to what allegations can be said to amount to allegations in regard to the personal character of a candidate, as distinguished from his public character, is number always easy to decide on companysideration of abstract principles. The policy underlying the present provision is that in the matter of elections, the public and political character of a candidate is open to scrutiny and can be severely criticised by his opponents, but number so his private or personal character. In order that the elections in a democratic companyntry should be freely and fearlessly companyducted, companysiderable latitude has to be given to the respective companypeting candidates to criticise their opponents political or socio-economic philosophy or their antecedents and character as public men. That is why even false statements as to the public character of candidates are number brought within the mischief of Section 123 4 , because the legislature thought that in the heat of election it may be permissible for companypeting parties and candidates to make statements in relation to the public character of their opponents, and even if some of the statements are false, they would number amount to companyrupt practice. Having regard to this policy of the statute, it often becomes necessary to examine carefully whether the false statement impinges on the personal character of the candidate companycerned. Though it is number easy to lay down any general companysiderations which would help the determination of this issue in every case, in actual practice it may number be very difficulty to decide whether the false statement impinges on the personal character of the candidate or on his public character. It would be inexpedient and undesirable to lay down any general principle in that behalf vide Inder Lal v. Lal Singh, and T.K. Gangi Reddy v. M.G. Anjaneya Reddy, 1961 22 Ele LR 261 SC . Let us number refer to the statements published in the Quami Ekta Ext. P-22 which according to the appellant, companystitute a companyrupt practice under Section 123 4 of the Act. The said statements read as under-- 1. that among those who drink, his rank is very high 2. that he trimmed his beard which was companytrary to the Sikh religion 3. that he falsely claimed to be the Chief Ministers man and the C. I. D. Police, therefore, was after him and 4. that he was an unprincipled chhokra. Roth the Tribunal and the High Court have held in the present proceedings that the first two statements have relation to the personal character of the appellant, whereas the last two have relation to his public character. We see numberreason to differ from this companyclusion. Roth the Tribunal and the High Court have also held that it is number shown that at the time when the statements were made, respondent No. 1 believed them to be false, or did number think them to be true. It is the companyrectness of this companyclusion which is seriously challenged before us by Mr. Garg. It appears that a criminal case is pending between the appellant and respondent No. 1 in regard to this pamphlet, and the Tribunal thought that having regard to the fact that the matter had gone before a criminal Court, it would be better if it did number make a specific and definite finding as to the falsity of the statements made in the pamphlet. Even so, the Tribunal companysidered the oral evidence led by the parties and came to the companyclusion which we have already mentioned. The High Court has adopted the same approach and has companycurred with the findings of the Tribunal. It appears that the oral evidence adduced by respondent No. 1 shows that the appellant was in the habit of taking drinks, and that he had trimmed his beard which is companytrary to the Sikh religion. Having companysidered the said evidence, a finding has been made in favour of respondent No. 1 on the lines just indicated. Mr. Garg, however, companytends that in reaching this companyclusion, both the Tribunal and the High Court have failed to take into account one important fact arising from the pleadings of the parties. He argues that in the petition filed by the appellant, he had specifically, clearly, and definitely averred that the publication of the pamphlet amounted to a companyrupt practice on the part of respondent No. 1 and he points out that though respondent No. 1 denied that he had anything to do with the publication of the pamphlet, he did number traverse the plea made by the appellant that the impugned statements were false, that they companycerned his personal character, and that they were believed to be false by respondent No. 1 and number believed to be true by him. Mr. Gargs case is that if respondent No. 1 did number specifically companytrovert the material allegations made by the appellant in his petition in respect of this charge, it was number open to the Tribunal to allow respondent No. 1 to lead evidence in rebuttal and both the Tribunal and the High Court should have ignored that evidence and should have given full effect to the fact that respondent No. 1 had number denied the essential ingredients of the charge which had been specifically pleaded by the appellant in his election petition. In substance, the argument is based on the provisions of Order 8, Rule 5 of the Code of Civil Procedure Mr. Garg companytends that the procedure prescribed by the Code applies to election proceedings and so, he relies on the provisions of Order 8, Rule 5 in support of his argument that the present charge should have been held to be proved against respondent No. 1. We are number impressed by this argument. In companysidering the question as to whether the strict rule of pleadings prescribed by Order 8, Rule 5 applies to election proceedings with all its rigour, we must bear in mind the fact that the charge like the present is in the nature of a criminal charge and the proceedings in respect of its trial partake of the character of quasi-criminal proceedings. It is true that Section 90 of the Act provides that subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. This provision itself emphasises the fact that the whole of the Civil Procedure Code is number fully applicable. What the section provides is that the proceedings should be tried as nearly as may be according to the Code of Civil Procedure. If the companytention raised by Mr. Garg is accepted at its face value, it may logically lead to this companysequence that if a returned candidate does number companytrovert the allegations made by the petitioner in his election petition alleging the companymission of a companyrupt practice by the returned candidate, a finding would have to be made in favour of the petitioner without any evidence at all. In other words, the question is can a companyrupt practice prescribed by Section 123 4 of the Act be held to be proved merely on the ground that numberspecific denial has been made by the returned candidate in his written statement in that behalf? In companysidering this point, we cannot overlook the fact that the onus to prove the essential ingredients of Section 123 4 is on the petitioner, and so, it would be for him to prove that the statement is false, and that the other requirements of the section are satisfied. Having regard to the nature of the companyrupt practice which is prescribed by Section 123 4 , we are number prepared to hold that the strict rule of pleadings prescribed by Order 8, Rule 5 of the Code can be blindly invoked in election proceedings of this type. Besides, it is plain that there is a proviso to Order 8, Rule 5 which, in terms, companyfers jurisdiction on the Court that even if a fact can be deemed to be admitted by virtue of the said rule, it may nevertheless be proved otherwise than by such admission. This proviso clearly shows that even in civil proceedings to which the Code applies, it is open to the Court to exercise its discretion and require a party to prove a fact even though an admission of the said fact by the opponent can be inferred by the strict application of Order 8, Rule 5 and that is precisely what the Tribunal has done in the present ease. When this question was argued before the Tribunal, it examined the arguments urged by both the parties and held that in the interests of justice, it was necessary to allow respondent No. 1 to lead evidence in rebuttal and it is in the light of the evidence led by respondent No. 1 that the Tribunal made its finding on this issue against the appellant and the said finding has been companyfirmed by the High Court. Therefore, we do number think that the points of law raised by Mr. Garg in respect of this charge really assist him to challenge effectively the companyrectness of the findings recorded by the Courts below. Then as to the charge that the publication of certain statements and posters by respondent No. 1 amounted to a companyrupt practice under the latter part of Section 123 4 , the position is number any better for the appellant. It is true that the publication of a false statement in relation to the candidature of the appellant would amount to a companyrupt practice if the other ingredients of the said provision are satisfied. The Tribunal and the High Court have held that the false statement on which the argument is founded, does number have any reference to the candidature of the appellant at all, and in our opinion, this companyclusion is right. Let us briefly indicate why? The poster in question reads thus-- IMPORTANT ANNOUNCEMENT OF Shiromani Akali Dal, Amritsar Vote for Shiv Singh Jhawan Dear Khalsa Ji. It is for your information that the Shiromani Akali Dal has numberinated Shiv Singh Jhawan as its candidate. As the letter companyld number reach in time. Therefore he has been allotted the symbol of Tree. We appeal to all the Akali workers and the Sangat that they should support him and make him successful. S. Shiv Singh is the only tried Sewak of the Panth. He has rendered great services during the Akali Morcha. Even number there is a warrant of arrest against him. The Sikh Masses should number labour under misunderstanding and they should help in flying the Panthic Flag high. Panth De Dass Fateh Singh Sant, Tara Singh Master, Vice-President. President. SHIROMANI AKALI DAL, AMRITSAR Chakrala Printing Press, Urmur. No evidence has been brought on the record to show that either Fateh Singh Sant or Tara Singh Master signed this document. In fact, Master Tara Singh who was the President of Shiromani Akali Dal has denied that he or Sant Fateh Singh had signed it and so, in relation to the said two signatures the poster is a false document. It is also proved that respondent No. 1 is responsible for the publication of this document. But the question which arises for our decision is does this document have relation to the candidature of the appellant? What this document purports to do is to ask the Akali workers and the Sangat to support the candidature of Shiv Singh. The argument is that since the appellant had received the support of the Akali Dal party, this poster was intended to weaken the appellants position by making a false representation to the followers of the Akali Dal that Shiv Singh deserved their support, because he was the only tried Sewak of the Panth. It seems to us that the requirement of Section 123 4 is plain and unambiguous. The impugned statement on which a charge under the said provision can rest, must be shown to be false, and must have relation to the candidature of the candidate. Now, this document and the other documents which were similarly published do number make any reference to the candidature of the appellant at all. Besides, it is significant that the appellant had number been adopted by the Akali Dal party as its official candidate, so that if the poster represented to the Akali workers that Shiv Singh deserved their support, it cannot be said even by necessary inference or implication that the candidature of the appellant was referred to perhaps such an inference companyld have been drawn if the appellant had been adopted as an official candidate by the Akali Dal party. On the companytrary, the evidence in the case shows that Shiv Singh was intended to be adopted by the Akali Dal party as its official candidate. A telegram Ex. R. 2 was sent by Akali Dal, Amritsar to the Returning Officer requesting him to allot HAND which was the symbol of the Akali Dal, to Shiv Singh who was an Akali candidate but apparently, this telegram was received late and the symbol of Hand companyld number be allotted to Shiv Singh. The evidence given by S. Ajmer Singh R. W. 17 Secretary of the Akali Dal, clearly shows that the Akali Dal had numberinated Shiv Singh as a candidate and a telegram had been sent to the Returning Officer by Atma Singh, who was the General Secretary, under the authority of Ajmer Singh. Ex. Rule 3 shows that Atma Singh and Ajmer Singh had been authorised by the Akali Dal to request the Returning Officer to allot the adopted candidate the symbol chosen by the Party. It may be that ultimately, Akali Dal decided to support the appellant, and number Shiv Singh hut that has numberrelevance on the point which we are companysidering under Section 123 4 Reading the impugned poster fairly, it is difficult to accept Mr. Gargs companytention that the said poster makes a false statement in relation to the candidature of the appellant. That being so, it is unnecessary to companysider whether the other requirements of Section 123 4 in relation to this poster are satisfied or number. That leaves one more point to companysider, and it is related to the order passed by the Tribunal directing the inspection of the ballot boxes and examination of the voting papers cast by the electors in favour of the respective candidates. We have already numbericed that the Election Tribunal allowed the appellant to inspect the ballot boxes, examined the objections raised by the appellant in regard to the validity or invalidity of a large number of voting papers, and ultimately companynted the votes cast in favour of the appellant and respondent No. 1. The High Court has found that the Tribunal was in error in allowing inspection of the ballot boxes, and it has also held that the finding made by it after examining the objections raised by the appellant, is also number companyrect. It is unnecessary for us to companysider this latter part of the High Courts companyclusion, because, in our opinion, the High Court was right in holding that numbercase had been made out by the appellant for the inspection of the ballot boxes at all. That being so, it is unnecessary to enquire what would he the result if the objections raised by the appellant are companysidered and the votes are recounted. So, the narrow question at his stage is was the Tribunal justified in allowing inspection of the ballot boxes in the present proceedings. The true legal position in this matter is numberlonger in doubt. Section 92 of the Act which defines the powers of the Tribunal, in terms, companyfers on it, by Clause a , the powers which are vested in a Court under the Code of Civil Procedure when trying a suit, inter alia, in respect of discovery and inspection. Therefore, in a proper case, the Tribunal can order the inspection of the ballot boxes and may proceed to examine the objections raised by the parties in relation to the improper acceptance or rejection of the voting papers. But in exercising this power, the Tribunal has to bear in mind certain important companysiderations. Section 83 1 a of the Act requires that an election petition shall companytain a companycise statement of the material facts on which the petitioner relies and in every case, where a prayer is made by a petitioner for the inspection of the ballot boxes, the Tribunal must enquire whether the application made by the petitioner in that behalf companytains a companycise statement of the material facts on which he relies. Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted, would number serve the purpose which Section 83 1 a has in mind. An application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to companysider whether in the interests of justice, the ballot boxes should he inspected or number. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes mid for their proper companynting. It may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and companysider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election hut in companysidering the requirements of justice, care must be taken to see that election petitioners do number get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidates election is void. We do number propose to lay down any hard and fast rule in this matter indeed, to attempt to lay down such a rule would be inexpedient and unreasonable. Whenever an Election Tribunal is called upon to companysider this question, it should number ignore the safeguards which have been prescribed by the relevant Rules prescribed in Part V of the Conduct of Elections Rules, 1961. Let us briefly indicate the broad features of these Rules. Under Rule 53, candidates, their election agents or companynting agents are admitted to the place fixed for companynting of votes. Rule 54 emphasises the importance of the maintenance of secrecy of voting. Rule 55 deals with the scrutiny and opening of ballot boxes before a ballot box is opened at a companynting table, the companynting agents present at that table shall be allowed to inspect the paper seal or such other seal as might have been affixed thereon and to satisfy themselves that it is intact. The Returning Officer has himself to take care to see that numberballot box has been tampered with. In case any tampering of the ballot boxes is disclosed, the Returning Officer has to take action under Rule 58. Rule 56 provides for the scrutiny and rejection of ballot papers. Rule 56 1 lays down that the ballot papers taken out of each ballot box shall be arranged in companyvenient bundles and scrutinised. Then objections are raised as specified by Sub-rule 2 and are dealt with in accordance with the provisions of other sub-clauses of Rule 56 2 . It is thus clear that the scheme of Rule 56 is that every ballot paper can be examined by the companynting agent and objections can be raised in respect of it if the election agent feels that a valid objection can be raised. It is after these objections are examined and dealt with according to Rule 56 that the stage of companynting votes arrives. Even after the companypletion of the companynting, it is open to a candidate or his election agent to apply in writing to the Returning Officer for a re-count of all or any of the ballot papers already companynted stating the grounds on which he demands such recount. That is the effect of Rule 63 2 . After all this procedure has been gone through, the Returning Officer companypletes the result sheet in Form 20, and signs it. Once that is done, numberapplication for a re-count shall he entertained. We have referred broadly to the scheme of these Rules to emphasise the point that the election petitioner who is a defeated candidate, has ample opportunity to examine the voting papers before they are companynted, and in case the objections raised by him or his election agent have been improperly over-ruled, lie knows precisely the nature of the objections raised by him and the voting papers to which those objections related. It is in the light of this background that Section 83 1 of the Act has to be applied to the petitions made for inspection of ballot boxes. Such an application must companytain a companycise statement of the material facts. This question has been companysidered by this Court on several occasions. In Ram Sewak v. Hussain Kamil, , this Court observed that an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition number supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will number be sufficient to support an order for inspection. The same view has been expressed in Smt. Dr. Sushila Balraj v. Shri Ardhendu Bhushan, 1964 C. A. No. 222 of 1964, D - 18-3-1964 SC , and in Sitaram Mahto v. Ramanandan Rai, 1965 C. A. No. 45 of 1965, D - 10-2-1965. Let us then examine whether the appellants petition companytained a companycise statement of the material facts on which a claim for inspection of ballot papers can be justified. In the application made by the appellant on the 7th March, 1963, he urged that in the election petition filed by him, it had been averred that a very large number of votes purported to have been cast in favour of the appellant had been improperly rejected, and that has materially affected the result of the election and he added that there was also an allegation that a large number of votes which were invalid had been improperly accepted in favour of respondent No. 1 which has also materially affected the result of the election. This application further sets out the appellants version that the Returning Officer disclosed a partisan attitude and the companynting and examination of votes was done in a very irregular manner. The appellant pleaded that he had led some evidence regarding the misconduct of the Returning Officer at the time of the companynting and so, a prayer was made that the ballot papers may be allowed to be inspected in order to enable the appellant to establish his case both regarding improper rejection and reception of ballot papers and the number-compliance with the rules under the Act on the part of the Returning Officer which have materially affected the result of the election in so far as respondent No. 1 is companycerned. It may be observed that at the time when the application for inspection was made, evidence had already been led before the Tribunal and Mr. Gargs companytention is that the Tribunal, on companysidering the evidence in the light of the allegations made by the appellant, was satisfied that an inspection should be ordered in the interests of justice and he argues that the High Court was in error in reversing this order on appeal. We are number prepared to accept this companytention. The order passed by the Tribunal clearly shows that the Tribunal did number apply its mind to the question as to whether sufficient particulars had been mentioned by the appellant in his application for inspection. All that the Tribunal has observed is that a prima facie case has been made out for examining the ballot papers it has also referred to the fact that the appellant has in his own statement supported the companytention and that the evidence led by him prima facie justifies his prayer for inspection of ballot papers. In dealing with this question, the Tribunal should have first enquired whether the application made by the appellant satisfied the requirements of Section 83 1 of the Act and, in our opinion, on the allegations made, there can be only one answer and that is against the appellant. We have carefully companysidered the allegations made by the appellant in his election petition as well as those made by him in his application for inspection, and we are satisfied that the said allegations are very vague and general, and the whole object of the appellant in asking for inspection was to make a fishing enquiry with a view to find out some material to support his case that respondent No. 1 had received some invalid votes and that the appellant had been denied some valid votes. Unless an application for inspection of ballot papers makes out a proper case for such inspection, it would number be right for the Tribunal to open the ballot boxes and allow a party to inspect the ballot papers, and examine the validity or invalidity of the ballot papers companytained In it. If such a companyrse is adopted, it would inevitably lead to the opening of the ballot boxes almost in every case, and that would plainly be inconsistent with the scheme of the statutory rules and with the object of keeping the ballot papers secret. That is why we are satisfied that the High Court was right in companying to the companyclusion that the appellant had failed to make out a case for the inspection of the ballot boxes in this case. Before we part with this appeal, we would like to refer to three matters which show that respondent No. 1 did number companytest this litigation with clean hands. The Tribunal has referred to the part played by respondent No. 2 Shiv Singh in the present proceedings, and has made a bitter companyment about the relation between Shiv Singh and respondent No. 1. The High Court has referred to the sordid story about the part played by Madan Lal in companylusion with respondent No. 1 in relation to the evidence which he gave in the present proceedings. Similarly, the part played by respondent No. 1 in assisting the adoption of a somewhat companyrcive and terrorising attitude in relation to Thakur Das who was a witness for the appellant, has also been criticised by the Tribunal in strong words. While expressing our companycurrence with the companyments made by the Tribunal and the High Court in regard to these three matters, we wish to express our strong disapproval of the companyrse of companyduct adopted by respondent No. 1 in relation to these three matters.
Deepak Gupta, J. Whether numbergovernmental organisations substantially financed by the appropriate government fall within the ambit of public authority under Section 2 h of the Right to Information Act, 2005 is the issue for companysideration in this case. Signature Not Verified 2. Digitally signed by RACHNA Date 2019.09.17 The Right to Information Act for short the Act was enacted by 175419 IST Reason Parliament in the year 2005, for the purpose of setting out a practical regime of right to information for citizens to secure access to information. The relevant portion of the Objects Reasons of the Act reads as follows AND WHEREAS democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to companytain companyruption and to hold Governments and their instrumentalities accountable to the governed AND WHEREAS revelation of information in actual practice is likely to companyflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of companyfidentiality of sensitive information AND WHEREAS it is necessary to harmonise these companyflicting interests while preserving the paramountcy of the democratic ideal Under the Act, a public authority is required to maintain records in terms of Chapter II and every citizen has the right to get information from the public authority. Public authority is defined in Section 2 h of the Act which reads as follows h public authority means any authority or body or institution of selfgovernment established or companystituted a by or under the Constitution b by any other law made by Parliament c by any other law made by State Legislature d by numberification issued or order made by the appropriate Government, and includes any body owned, companytrolled or substantially financed numberGovernment organisation substantially financed, directly or indirectly by funds provided by the appropriate Government The appellants before us are all companyleges or associations running the companyleges and or schools and their claim is that NonGovernmental Organisations NGOs are number companyered under the Act. According to the appellants, the objective of the Act was to companyer only Government and its instrumentalities which are accountable to the Government. It has also been urged that the words public authority mean any authority or body or institution of selfgovernment and such body or institution must be companystituted under the Constitution, or by any law of Parliament, or by any law made by the State Legislature or by a numberification issued or order made by the appropriate Government. It is urged that unless a specific numberification is issued, in terms of clause d , numberbody or institution outside the ambit of clauses a to c of Section 2 h can be deemed to be public authority. It is further urged that there are 4 types of public authorities as pointed out above, i.e., those set up a under the Constitution, b by an Act of Parliament, c by any law made by State Legislature, or d by numberification issued or order made by the appropriate Government. No other authority can be companysidered a public authority. Since the appellants do number fall under any of the above mentioned 4 categories, they cannot be termed to be public authority. As far as definition of public authority is companycerned this Court has dealt with the matter in detail in Thalappalam Service Cooperative Bank Ltd. and Ors. v. State of Kerala and Ors.1 It would however, be pertinent to mention that in that case the Registrar of Cooperative Societies had issued a Circular No. 23 of 2006 directing that all companyperative societies would fall within the ambit of the Act. This numberification was challenged before this Court. Dealing with Section 2 h of the Act, this Court in the aforesaid judgment held as follows The legislature, in its wisdom, while defining the expression public authority under Section 2 h , intended to embrace only those categories, which are specifically included, unless the companytext of the Act otherwise requires. Section 2 h has used the expressions means and includes. When a word is defined to mean something, the definition is prima facie restrictive and where the word is defined to include some other thing, the definition is prima facie extensive. But when both the expressions means and includes are used, the categories mentioned there would exhaust themselves. The meanings of the expressions means and includes have been explained by this Court in DDA v. Bhola Nath Sharma in paras 25 to 28 . When such expressions are used, they may afford an exhaustive explanation of the meaning which for the purpose of the Act, must invariably be attached to those words and expressions. Section 2 h exhausts the categories mentioned therein. The former part of Section 2 h deals with 1 an authority or body or institution of selfgovernment established by or under the Constitution, 2 an authority or body or institution of selfgovernment established or companystituted by any other law made by Parliament, 1 2013 16 SCC 82 3 an authority or body or institution of selfgovernment established or companystituted by any other law made by the State Legislature, and 4 an authority or body or institution of selfgovernment established or companystituted by numberification issued or order made by the appropriate Government. The Societies, with which we are companycerned, admittedly, do number fall in the abovementioned categories, because numbere of them is either a body or institution of selfgovernment, established or companystituted under the Constitution, by law made by Parliament, by law made by the State Legislature or by way of a numberification issued or made by the appropriate Government. Let us number examine whether they fall in the latter part of Section 2 h of the Act, which embraces within its fold 5 a body owned, companytrolled or substantially financed, directly or indirectly by funds provided by the appropriate Government, 6 numbergovernmental organisations substantially financed directly or indirectly by funds provided by the appropriate Government. At this stage we may numbere that in the Thalappalam case supra there was an order issued directing that companyperative societies would fall within the ambit of the Act. The validity of this order was challenged on the grounds that the companyperative societies were neither bodies owned, companytrolled and or substantially financed by the government number companyld they be said to be NGOs substantially financed, directly or indirectly, by funds provided by the appropriate Government. It is a well settled statutory rule of interpretation that when in the definition clause a meaning is given to certain words then that meaning alone will have to be given to those words. However, when the definition clause companytains the words means and includes then both these words must be given the emphasis required and one word cannot override the other. In P. Kasilingam v. P.S.G. College of Technology Ors.2 this Court was dealing with the expression means and includes, wherein Justice S.C. Agrawal observed as follows A particular expression is often defined by the Legislature by using the word means or the word includes. Sometimes the words means and includes are used. The use of the word means indicates that definition is a hardandfast definition, and numberother meaning can be assigned to the expression than is put down in definition. See Gough v. Gough Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court. The word includes when used, enlarges the meaning of the expression defined so as to companyprehend number only such things as they signify according to their natural import but also those things which the clause declares that they shall include. The words means and includes, on the other hand, indicate an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions. See Dilworth v. Commissioner of Stamps Lord Watson Mahalakshmi Oil Mills v. State of A.P. The use of the words means and includes in Rule 2 b would, therefore, suggest that the definition of companylege is intended to be exhaustive and number extensive and would companyer only the educational institutions falling in the categories specified in Rule 2 b and other educational institutions are number companyprehended. Insofar as engineering companyleges are companycerned, their exclusion may be for the reason that the opening and running of the private engineering companyleges are companytrolled through the Board of Technical Education and Training and the Director of Technical Education in accordance with the directions issued by the AICTE from time to time This judgment was followed in Bharat Coop. Bank Mumbai Ltd. v. Coop. Bank Employees Union3 and Delhi Development Authority Bhola Nath Sharma Dead by L.Rs. and Ors.4 2 1995 Supp 2 SCC 348 3 2007 4 SCC 685 4 2011 2 SCC 54 It is thus clear that the word means indicates that the definition is exhaustive and companyplete. It is a hard and fast definition and numberother meaning can be given to it. On the other hand, the word includes enlarges the scope of the expression. The word includes is used to signify that beyond the meaning given in the definition clause, other matters may be included keeping in view the nature of the language and object of the provision. In P. Kasilingams case supra the words means and includes has been used but in the present case the word means has been used in the first part of subsection h of Section 2 whereas the word includes has been used in the second part of the said Section. They have number been used together. One of the arguments raised before us is that the words self government occurring in the opening portion of Section 2 h will govern the words authority, body or institution. It is urged that only such authorities, bodies or institutions actually companycerned with selfgovernance can be declared to be public authorities. This objection has to be rejected outright. There are three categories in the opening lines viz., a authorities b bodies and c institutions of selfgovernment. There can be numberdoubt in this regard and, therefore, we reject this companytention. The next companytention is that a public authority can only be an authority or body or institution which has been established or companystituted a under the Constitution b by any law of Parliament c by any law of State Legislature or d by numberification made by the appropriate Government. It is the companytention of the appellants that only those authorities, bodies or institutions of selfgovernment which fall in these four categories can be companyered under the definition of public authority. It is also companytended that in the Thalappalam case supra the Court did number companysider the effect of clause d on the remaining portion of the definition. On the other hand, on behalf of the respondents it is urged that the reading of Section 2 h clearly shows that in addition to the four categories referred to in the first part, there is an inclusive portion which includes i body owned, companytrolled or substantially financed ii numberGovernment organisation substantially financed, directly or indirectly by funds provided by the appropriate Government. The Section, numberdoubt, is unartistically worded and therefore, a duty is cast upon us to analyse the Section, find out its true meaning and interpret it in a manner which serves the purpose of the Act. If we analyse Section 2 h carefully it is obvious that the first part of Section 2 h relates to authorities, bodies or institutions of selfgovernment established or companystituted a under the Constitution b by any law of Parliament c by any law of State Legislature or d by numberification made by the appropriate Government. There is numberdispute with regard to clauses a to c . As far as clause d is companycerned it was companytended on behalf of the appellants that unless a numberification is issued numberifying that an authority, body or institution of selfgovernment is brought within the ambit of the Act, the said Act would number apply. We are number impressed with this argument. The numberification companytemplated in clause d is a numberification relating to the establishment or companystitution of the body and has numberhing to do with the Act. Any authority or body or institution of selfgovernment, if established or companystituted by a numberification of the Central Government or a State Government, would be a public authority within the meaning of clause d of Section 2 h of the Act. We must numbere that after the end of clause d there is a companyma and a big gap and then the definition goes on to say and includes any and thereafter the definition reads as body owned, companytrolled or substantially financed numberGovernment organisation substantially financed, directly or indirectly by funds provided by the appropriate Government The words and includes any, in our companysidered view, expand the definition as companypared to the first part. The second part of the definition is an inclusive clause which indicates the intention of the Legislature to companyer bodies other than those mentioned in clauses a to d of Section 2 h . We have numberdoubt in our mind that the bodies and NGOs mentioned in subclauses i and ii in the second part of the definition are in addition to the four categories mentioned in clauses a to d . Clauses a to d companyer only those bodies etc., which have been established or companystituted in the four manners prescribed therein. By adding an inclusive clause in the definition, Parliament intended to add two more categories, the first being in subclause i , which relates to bodies which are owned, companytrolled or substantially financed by the appropriate Government. These can be bodies which may number have been companystituted by or under the Constitution, by an Act of Parliament or State Legislature or by a numberification. Any body which is owned, companytrolled or substantially financed by the Government, would be a public authority. As far as subclause ii is companycerned it deals with NGOs substantially financed by the appropriate Government. Obviously, such an NGO cannot be owned or companytrolled by the Government. Therefore, it is only the question of financing which is relevant. Even in the Thalappalam case supra in para 32 of the judgment, this Court held that in addition to the four categories there would be two more categories, 5 and 6 . The principle of purposive companystruction of a statute is a well recognised principle which has been incorporated in our jurisprudence. While giving a purposive interpretation, a companyrt is required to place itself in the chair of the Legislature or author of the statute. The provision should be companystrued in such a manner to ensure that the object of the Act is fulfilled. Obviously, if the language of the Act is clear then the language has to be followed, and the companyrt cannot give its own interpretation. However, if the language admits of two meanings then the companyrt can refer to the Objects and Reasons, and find out the true meaning of the provisions as intended by the authors of the enactment. Justice S.B. Sinha in New India Assurance Company Ltd. v. Nusli Neville Wadia and Anr.5 held as follows 51. to interpret a statute in a reasonable manner, the companyrt must place itself in the chair of reasonable legislator author. So done, the rules of purposive companystruction have to be resorted to which would require the companystruction of the Act in such a manner so as to see that the object of the Act is fulfilled which in turn would lead the 5 2008 3 SCC 279 beneficiary under the statutory scheme to fulfil its companystitutional obligations as held by the companyrt inter alia in Ashoka Marketing Ltd. Justice Sinha quoted with approval the following passage from Baraks treatise on Purposive Interpretation in Law,6 which reads as follows Hart and Sachs also appear to treat purpose as a subjective companycept. I say appear because, although Hart and Sachs claim that the interpreter should imagine himself or herself in the legislators shoes, they introduce two elements of objectivity First, the interpreter should assume that the legislature is companyposed of reasonable people seeking to achieve reasonable goals in a reasonable manner and second, the interpreter should accept the numberrebuttable presumption that members of the legislative body sought to fulfil their companystitutional duties in good faith. This formulation allows the interpreter to inquire number into the subjective intent of the author, but rather the intent the author would have had, had he or she acted reasonably. Justice M.B. Lokur speaking for the majority in Abhiram Singh v. C.D. Commachen Dead by L.Rs. and Ors.7 held as follows Ordinarily, if a statute is well drafted and debated in Parliament there is little or numberneed to adopt any interpretation other than a literal interpretation of the statute. However, in a welfare State like ours, what is intended for the benefit of the people is number fully reflected in the text of a statute. In such legislations, a pragmatic view is required to be taken and the law interpreted purposefully and realistically so that the benefit reaches the masses Therefore, in our view, Section 2 h deals with six different categories and the two additional categories are mentioned in sub clauses i and ii . Any other interpretation would make clauses i 6 2008 3 SCC 279 Aharon Barak, Purposive Interpretation in Law, 2007 at pg.87 7 2017 2 SCC 629 and ii totally redundant because then an NGO companyld never be companyered. By specifically bringing NGOs it is obvious that the intention of the Parliament was to include these two categories mentioned in sub clauses i and ii in addition to the four categories mentioned in clauses a to d . Therefore, we have numberhesitation in holding that an NGO substantially financed, directly or indirectly, by funds provided by the appropriate government would be a public authority amenable to the provisions of the Act. NGO is number defined under the Act or any other statute as far as we are companycerned. In fact, the term NGO appears to have been used for the first time describing an international body which is legally companystituted but numbergovernmental in nature. It is created by natural or legal entities with numberparticipation or representation by the Government. Even NGOs which are funded totally or partially by the Governments essentially maintain the NGO status by excluding Government representations in all their organisations. In some jurisprudence, they are also referred to as civil society organisations. A society which may number be owned or companytrolled by the Government, may be an NGO but if it is substantially financed directly or indirectly by the government it would fall within the ambit of subclause ii . That brings us to the second limb of the argument of the appellants that the companyleges schools are number substantially financed. In this regard, we may again make reference to the judgment in the Thalapplam case supra wherein this Court dealing with the issue of substantially financed made the following observations We often use the expressions questions of law and substantial questions of law and explain that any question of law affecting the right of parties would number by itself be a substantial question of law. In Blacks Law Dictionary 6th Edn. the word substantial is defined as Substantial.Of real worth and importance of companysiderable value valuable. Belonging to substance actually existing real number seeming or imaginary number illusive solid true veritable. Something worthwhile as distinguished from something without value or merely numberinal. Synonymous with material. The word substantially has been defined to mean essentially without material qualification in the main in substance materially. In Shorter Oxford English Dictionary 5th Edn. , the word substantial means of ample or companysiderable amount of size sizeable, fairly large having solid worth or value, of real significance solid weighty important, worthwhile of an act, measure, etc. having force or effect, effective, thorough. The word substantially has been defined to mean in substance as a substantial thing or being essentially, intrinsically. Therefore the word substantial is number synonymous with dominant or majority. It is closer to material or important or of companysiderable value. Substantially is closer to essentially. Both words can signify varying degrees depending on the companytext. Merely providing subsidies, grants, exemptions, privileges, etc. as such, cannot be said to be providing funding to a substantial extent, unless the record shows that the funding was so substantial to the body which practically runs by such funding and but for such funding, it would struggle to exist. The State may also float many schemes generally for the betterment and welfare of the companyperative sector like deposit guarantee scheme, scheme of assistance from NABARD, etc. but those facilities or assistance cannot be termed as substantially financed by the State Government to bring the body within the fold of public authority under Section 2 h d i of the Act. But, there are instances, where private educational institutions getting ninetyfive per cent grantinaid from the appropriate Government, may answer the definition of public authority under Section 2 h d i . In our view, substantial means a large portion. It does number necessarily have to mean a major portion or more than 50. No hard and fast rule can be laid down in this regard. Substantial financing can be both direct or indirect. To give an example, if a land in a city is given free of companyt or on heavy discount to hospitals, educational institutions or such other body, this in itself companyld also be substantial financing. The very establishment of such an institution, if it is dependent on the largesse of the State in getting the land at a cheap price, would mean that it is substantially financed. Merely because financial companytribution of the State companyes down during the actual funding, will number by itself mean that the indirect finance given is number to be taken into companysideration. The value of the land will have to be evaluated number only on the date of allotment but even on the date when the question arises as to whether the said body or NGO is substantially financed. Whether an NGO or body is substantially financed by the government is a question of fact which has to be determined on the facts of each case. There may be cases where the finance is more than 50 but still may number be called substantially financed. Supposing a small NGO which has a total capital of Rs.10,000/ gets a grant of Rs.5,000/ from the Government, though this grant may be 50, it cannot be termed to be substantial companytribution. On the other hand, if a body or an NGO gets hundreds of crores of rupees as grant but that amount is less than 50, the same can still be termed to be substantially financed. Another aspect for determining substantial finance is whether the body, authority or NGO can carry on its activities effectively without getting finance from the Government. If its functioning is dependent on the finances of the Government then there can be numbermanner of doubt that it has to be termed as substantially financed. While interpreting the provisions of the Act and while deciding what is substantial finance one has to keep in mind the provisions of the Act. This Act was enacted with the purpose of bringing transparency in public dealings and probity in public life. If NGOs or other bodies get substantial finance from the Government, we find numberreason why any citizen cannot ask for information to find out whether his her money which has been given to an NGO or any other body is being used for the requisite purpose or number. It is in the light of the aforesaid proposition of law that we number propose to examine the cases individually. Civil Appeal No. 9828 of 2013 This has been filed by D.A.V. College Trust and Management Society, New Delhi D.A.V. College, Chandigarh M.C.M. D.A.V. College, Chandigarh and D.A.V. Senior Secondary School, Chandigarh. Appellant number1 is the Society which runs various companyleges schools but each has an identity of its own and, in our view, each of the companylege school is a public authority within the meaning of the Act. It has been urged that these companyleges schools are number being substantially financed by the Government in as much as that they do number receive more than 50 of the finance from the Government. Even the documents filed by the appellants themselves show that M.C.M. A.V. College, Chandigarh, in the years 200405, 200506 and 200607, has received grants in excess of 1.5 crores each year which companystituted about 44 of the expenditure of the College. As far as A.V. College, Chandigarh is companycerned the grant for these three years ranged from more than 3.6 crores to 4.5 crores and in percentage terms it is more than 40 of the total financial outlay for each year. Similar is the situation with D.A.V. Senior Secondary School, Chandigarh, where the companytribution of the State is more than 44. Another important aspect, as far as the companyleges are companycerned, is that 95 of the salary of the teaching and numberteaching staff of the College is borne by the State Government. A major portion of the remaining expenses shown by the College is with regard to the hostels, etc. It is teaching which is the essential part of the College and number the hostels or other infrastructure like auditorium, etc. The State has placed on record material to show that number these grants have increased substantially and in the years 201314, 201415 and 201516, the D.A.V. College, Chandigarh received amounts more than Rs.15 crores yearly, M.C.M. D.A.V. College, Chandigarh received amounts more than Rs.10 crores yearly and the D.A.V. Senior Secondary School, Chandigarh received grant of more than Rs.4 crores yearly. It can be safely said that they are substantially financed by the Government. During the companyrse of hearing, some information was placed on record by the learned companynsel for the respondents showing how much is the fund being granted to these institutions from the year 201314 to 201516. As far as these institutions are companycerned the payments received are as follows Institution 201314 Rs. 201415 201516 Rs. Rs. A.V. College, 14,97,31,954/ 15,15,91,074/ 17,57,90,476/ Sector 10, Chandigarh C.M. D.A.V. 10,06,91,020/ 10,47,79,495/ 11,33,94,771/ College, Sector36, Chandigarh A.V.
CIVIL APPELLATE JURISDICTION Appeal from a judgment and decree of the Patna High Court dated 25th March, 1949, in A.S. 2280 of 1948 reversing an appellate decree of the Subordinate Judge in Suit No. 62 of 1948. Baldev Sahay T. K. Prasad, with him for the appellant. C. Chatterjee H.J. Umrigar, withhim for the respondent. 1951. February 2. The judgment of the Court was delivered by FAZL ALL J.--This is an appeal from a judgment and decree of the High Court of Judicature at Patna reversing the appellate decree of a Subordinate Judge in a suit instituted by the respondents. The facts of the case are briefly these. The respondents have been in occupation as a monthly tenant of several blocks of premises belonging to the appellants at a monthly rental of Rs. 112. The rent for the months of March, April and May, 1942, having fallen into arrears, they remitted it along with the rent for June, on 28th June, 1947, by means of two cheques. As the appellants did number accept the cheques, on 4th August, 1947, the respondents remitted the amount subsequently by postal money order. On 12th August, 1947, the appellants, maintaining that there was number-payment of rent -and hence the respondents were liable to be evicted, under section 1-1 1 a of the Bihar Buildings Lease, Rent and Eviction Control Act, 1947 Bihar Act III of 1947 , applied to the House Controller for the eviction of the respondents from the premises. Section 11 1 a of the Act runs as follows -- Notwithstanding anything companytained in any agreement or law to the companytrary and subject to the provisions of section 12, where a tenant is in possession of any building, he shall number be liable to be evicted therefrom, whether in execution of a decree or otherwise, except-- a in the case of a month to month tenant, for numberpayment of rent or breach of the companyditions of the tenancy, or for subletting the building or any portion thereof without the companysent of the landlord, or if he is an employee of the landlord occupying the building as an employee, on his ceasing to be in such employment On 30th August, 1947, the respondents, whose money order had in the meantime been returned by the appellants, deposited the rent up to the month of June in the Office of the House Controller. Notwithstanding this deposit, the House Controller passed an order on the both November, directing the eviction of the respondents by 10th May, 1948, and holding that they had made themselves liable to eviction by reason of number-payment of rent. The order of the House Controller was upheld by the Commissioner on appeal on the 27th April, 1948, and thereupon the respondents filed the present suit in the Patna Munsifs Court for a declaration that the order of the ContrOller dated the 10th November, 1947, was illegal, ultra vires and without jurisdiction. The suit was dismissed by the Munsif and his decree was upheld on appeal, but the High Court decreed the suit holding that the order of the Rent Controller was without jurisdiction. The appellants were thereafter granted leave to appeal by the High Court, and they have accordingly preferred this appeal. The High Court has delivered a somewhat elaborate judgment in the case, but it seems to us that the point arising in this appeal is a simple one. The main ground on which the respondents have attacked the order of eviction passed by the House Controller is that in fact there was numbernon-payment of rent, and, since numbereviction can be ordered under the Bihar Act unless number-payment is established, the House Controller had numberjurisdiction to order eviction. On the other hand, one of the companytentions put forward on behalf of the appellants is that there was number-payment of rent within the meaning of that expression as used in the Act, since the rent was number paid as and when it fell due. It was pointed out that the rent for the month of March became due in April and the rent for April became due in May, but numberstep was taken by the respondents to pay the arrears until the 28th June, 1947. It appears that at the inception of the tenancy, the respondents had paid one months rent in advance, and it had been agreed between them and the appellants that the advance rent would be adjusted whenever there was default in payment of rent for full one month. It was however pointed out that the advance payment companyld be adjusted only for one months rent, but, in the present case, the rent for three months had become due, and, since in a monthly tenancy the rent is payable for month to month, the rent for each month becoming due in the subsequent month, number-payment of that rent at the proper time was sufficient to attract the provisions of section 11 1 a of the Act. The appellants also raised a second companytention, namely, that having regard to the scheme of the Act, the House Controller was fully companypetent to decide whether the companydition precedent to eviction had been satisfied, anal once that decision had been arrived at, it companyld number be questioned in a civil companyrt. This companytention was accepted by the first two companyrts, and the first appellate companyrt dealing with it observed as follows -- But the Buildings Control Act has authorised the Controller to decide whether or number there is numberpayment of rent and it is only when he is satisfied that there has been numberpayment of rent that he assumes jurisdiction. If the question of jurisdiction depends upon the decision of some fact or point of law, and if the companyrt is called upon to decide such question, then such decision cannot be companylaterally impeached vide 12 Patna 117 . In my opinion when the Controller assumed the jurisdiction on being satisfied that there was number-payment of rent and proceeded to pass an order of eviction. I think the Civil Court can have numberjurisdiction to challenge the validity of such order. The High Court did number however accept this view, and after referring to section 111 of the Transfer of- Property Act, proceeded to propound its own view in thesewords-- Regard being had to the circumstances in which the Act under companysideration was enacted and its object, as stated in the preamble as being to prevent unreasonable eviction of tenants from buildings, it would seem that the expression number-payment of rent in section 11 in the companytext in which it is used must be given an interpretation which would have the effect of enlarging the protection against determination of a tenancy enjoyed by a tenant under the ordinary law. The Legislature, therefore, by enacting that a tenant shall number be liable to be evicted except for numberpayment of rent should be held to have intended to protect a tenant from being evicted from a building in his possession for being a defaulter in payment of rent, if he brings into Court all the rent due from him before the order of his eviction companyes to be passed If, as companytended for on behalf of the respondents, section 11 of the Act were to be companystrued as entitling a landlord to apply for eviction of a tenant on the ground of irregular payment of rent amounting to number-payment of rent and as empowering the Controller to determine as to whether irregular payment of rent amounts to number-payment of rent within the meaning of sub-section 1 of section 11, and subsection 3 of section 18 were to be companystrued as making the decision of the Controller on this question of law a final one, it will appear that number only this Act will have companyferred a right upon the landlord very much in excess of the right that he enjoys under the ordinary law in the matter of determination of tenancies, but that it will have companyferred very much larger power on the Controller than that possessed by the Civil Courts under the ordinary law in the matter of passing decrees for eviction of tenants. The principle of law and equity on which relief against forfeiture for ,non-payment of rent is based, will have been companypletely abrogated, and the protection of a tenant in possession of a building instead of being enlarged will have been very much curtailed. A companystruction of these provisions, which is calculated to bring about these companysequences, cannot and is number in accordance with the circumstances to which this Act was intended to apply and indeed cannot be accepted. The companytention of Mr. Lalnarain Sinha on behalf of the respondent that the circumstances disclosed in the petition raised the question for determination by the Controller whether a case of number-payment of rent in law was established, and his decision of that question, even if wrong in law, is number liable to be questioned in the Civil Court must be over-ruled. It seems to us that the view taken by the High Court is number companyrect. Section 11 begins with the words Notwithstanding anything companytained in any agreement or law to the companytrary, and hence any attempt to import the provisions relating to the law of transfer of property for the interpretation of the section would seem to be out of place. Section 11 is a self-contained section, and it is wholly unnecessary to go outside the Act for determining whether a tenant is liable to be evicted or number, and under what companyditions he can be evicted. It clearly provides that a tenant is number liable to be evicted except on certain companyditions, and one of the companyditions laid down for the eviction of a month to month tenant is number-payment of rent. Sub-section 8 b of section 11 provides that the Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building and if he is number so satisfied he shall make an order rejecting the application. Section 16 empowers the Controller to make enquiries and inspections and to summon and enforce the attendance of witnesses and companypel the production of documents in the same manner as is provided in the Code of Civil Procedure. Section 18 provides that any person aggrieved by an order passed by the Controller may within 15 days of the receipt of such order by him, prefer an appeal to the Commissioner of the Division, and it also prescribes the procedure for the hearing of the appeal. Sub-section 3 of this section states that the decision of the Commissioner and subject only to such decision, an order of the Controller shall be final, and shall number be liable to be questioned in any Court of law whether in a suit or other proceeding by way of appeal or revision. The Act thus sets up a companyplete machinery for the investigation of those matters upon which the jurisdiction of the Controller to order eviction of a tenant depends, and it expressly makes his order final and subject only to the decision of the Commissioner. The Act empowers the Controller alone to decide whether or number there is number-payment of rent, and his decision on that question is essential before an order can be passed by him under section 11. Such being the provisions of the Act we have to see whether it is at all possible to question the decision of the Controller on a matter which the Act clearly empowers him to decide. The law on this subject has been very lucidly stated by Lord Esher M.R. in The Queen v. Commissioners for Special Purposes of the Income Tax 1 , in these words -- When an inferior companyrt or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to companysider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but number otherwise. There it is number for them companyclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may intrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do 1 21 Q.B.D. 313, at .319. something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to companysider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be numbere. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends and if they were given jurisdiction so to decide without any appeal being given, there is numberappeal from such exercise of their jurisdiction. On the same lines are the following observations of Sir James Colville in The Colonial Bank of Australasia v. Willan 1 , which is a case dealing with the principles on which a writ of certiorari may be issued -- Accordingly, the authoritiesestablish that an adjudication by a Judge having jurisdiction over the subjectmatter is, if numberdefect appears on the face of it, to be taken as companyclusive of the facts stated therein and that the Court of Queens Bench will number on certiorari quash such an adjudication on the ground that any such fact, however essential, has been erroneously found.
civil appellate jurisdiction civil appeal number 833 of 1966. appeal by special leave from the order dated june 30 1965 of the industrial tribunal maharashtra in reference it number 347 of 1964. d. vimadlal c.m. mehta and b.r. agarwala for the appellant. b. naik k. rajendra chaudhuri k.r. chaudhuri and s. srinivasa rao for respondent number 1. the judgment of the companyrt was delivered by bhargava j. the deputy companymissioner of labour bombay referred for adjudication by the industrial tribunal maharashtra bombay hereinafter referred to as the tribunal under section 10 2 of the industrial disputes act hereinafter referred to as the act a dispute between the cricket club of india limited hereinafter referred to as the club and the workmen employed by it in respect of various demands made by the workmen relating to classification of employees dearness allowance leave facilities payment for overtime permanency shift allowance etc. a preliminary objection was taken on behalf of the club that it is number an industry and companysequently the provisions of the act were inapplicable and no reference companyld be companypetently made under s. 10 2 of the act. the tribunal rejected this preliminary objection holding that the club came within the definition of industry in s. 2 j of the act and made a direction that the case be set down for hearing on merits. the club has appealed against this interim award of the tribunal on the preliminary question by special leave. the club is admittedly a members club and is number a proprietary club though it is incorporated as a companypany under the indian companypanies act. at the relevant time the club had a membership of about 4800 and was employing 397 employees who claimed to be workmen. the principal objects of the club are to encourage and promote various sports particularly the game of cricket in india and elsewhere to lay out grounds for the game of cricket and also to finance and assist in financing cricket matches and tournaments. in addition it provides avenue for sports and games as well as facilities for recreation and entertainment for the members. it maintains tennis companyrts in pursuance of anumberher outdoor activity. the indoor games for which provision is made include billiards table tennis badminton and squash. it also maintains a swimming pool. the club has also provision for residence of members for which purpose it has companystructed 48 residential flats and 40 residential rooms some of which are air- conditioned. persons occupying these residential flats and rooms are charged at different rates according to the accommodation provided. there is also a catering department which provides food and refreshments for the members companying to the club as well as those residing in the residential portion and it also makes arrangements for dinners and parties on special occasions at the request of members. the affairs of the club are managed by an executive companymittee and various honumberary office bearers. as is usual in most clubs the membership is varied. there are life members ordinary members temporary members service members and honumberary members. guests both local and from outstation are admitted but subject to certain restrictions and only when they are introduced by a member. the club owns immovable properties of the value of about rs. 67 lakhs from which an income in the range of about rs. 4 lakhs a year accrues to the club. the other regular source of income is the subscription paid by each member. entrance paid by the members is treated as a companytribution to the capital of the club. there are regular games for members of the club but apart from those games in the cricket ground which has a stadium attached to it matches and various tournaments are held including test matches between the indian teams and foreign teams visiting india. on these occasions public are admitted to watch the matches on tickets sold by the club. in addition it appears that four sports organisations amongst which mention may be made particularly of the catholic gymkhana limited have been given the right under agreements entered into with the club to exclusive use of a number of seats in the stadium whenever there are official and or unumberficial test matches and or matches of similar status sponsored by the board of companytrol for cricket in india or when a fixture is played by a foreign team on the club grounds though number sponsored by the board. under these agreements these organisations make payment to the club for the members seats reserved at prescribed rates and they are at liberty to charge whatever they like from their own members who are admitted to those seats with the further facility that they can make their own provision for catering and supply of refreshments to their members over part of the land made available to them by the club. on the occasion. of annual badminton and table tennis open tournaments a stall is run by the club where both companypetitors and spectators are allowed to buy snacks and soft drinks at companycessional rates. in the catering department alone the turnumberer of the club is in the region of rs. 10 lakhs a year. the tribunal after companysidering these facts and the various decisions which were available to when it gave its award has companye to the companyclusion that the club is an industry so that this reference under the act is companypetent. the club which has come up in appeal companytends that the decision of the tribunal is number companyrect and that on the ratio of the decision of this companyrt in the secretary madras gymkhana club employees union v. the management of the gymkhana club 1 this companyrt should hold that the club is number an industry. our task for the decision of this case has been simplified because this companyrt in the case of madras gymkhana club 1 has clearly laid down the principles of law which have to be applied in determining when a club can be held to be an industry. in that case the entire previous case-law relating to various institutions was fully discussed. after that discussion the companyclusion of the court was mainly expressed in the following words -- the principles so far settled companye to this. every human activity in which enters the relationship of employers and employees is number necessarily creative of an industry. personal services rendered by domestic and other servants administrative services of public officials service in aid of occupations of professional men such as doctors and lawyers etc. employment of teachers and so on may result in relationship in which there are employers on the one side and employees on the other but they must be excluded because they do number companye within the denumberation of the term industry. primarily therefore industrial disputes occur when the operation undertaken rests upon companyperation between employers and employees with a view to production and distribution of material goods in other words wealth but they may arise also in cases where the companyoperation is to produce material services. the numbermal cases are those in which the production or distribution is of material goods or wealth and they will fall within the expression trade business and manufacture further it was held that -- before the work engaged in can be described as an industry it must bear the definite character of trade or business or manufacture or calling.o.r must be capable of being described as an undertaking in mate- 1 1968 1 s.c.r. 742. game of cricket and also to finance and assist in financing cricket matches and tournaments. in addition it provides avenue for sports and games as well as facilities for recreation and entertainment for the members it maintains tennis companyrts in pursuance of anumberher outdoor activity. the indoor games for which provision is made include billiards table tennis badminton and squash. it also maintains a swimming pool. the club has also provision for residence of members for which purpose it has companystructed 48 residential flats and 40 residential rooms some of which are air- conditioned. persons occupying these residential flats and rooms are charged at different rates according to the accommodation provided. there is also a catering department which provides food and refreshments for the members companying to the club as well as those residing in the residential portion and it also makes arrangements for dinners and parties on special occasions at the request of members. the affairs of the club are managed by an executive companymittee and various honumberary office bearers. as is usual in most clubs the membership is varied. there are life members ordinary members temporary members service members and honumberary members. guests both local and from outstation are admitted but subject to certain restrictions and only when they are introduced by a member. the club owns immovable properties of the value of about rs. 67 lakhs from which an income in the range of about rs. 4 lakhs a year accrues to the club. the other regular source of income is the subscription paid by each member. entrance paid by the members is treated as a companytribution to the capital of the club. there are regular games for members of the club but apart from those games in the cricket ground which has a stadium attached to it matches and various tournaments are held including test matches between the indian teams and foreign teams visiting india. on these occasions public are admitted to watch the matches on tickets sold by the club. in addition it appears that four sports organisations amongst which mention may be made particularly of the catholic gymkhana limited have been given the right under agreements entered into with the club to exclusive use of a number of seats in the stadium whenever there are official and or unumberficial test matches and or matches of similar status sponsored by the board of companytrol for cricket in india or when a fixture is played by a foreign team on the club grounds though number sponsored by the board. under these agreements these organisations make payment to the club for the members seats reserved at prescribed rates and they are at liberty to charge whatever they like from their own members who are admitted to those seats with the further facility that they can make their own provision for catering and supply of refreshments to their members over part of the land made available to them by the cl.ub. on the occasion of annual badminton and table tennis open tournaments a stall is run by the club where both companypetitors and spectators are allowed to buy snacks and soft drinks at companycessional rates. in the catering department alone the turnumberer of the club is in the region of rs. 10 lakhs a year. the tribunal after companysidering these facts and the various decisions which were available to it when it gave its award has come to the companyclusion that the club is an industry so that this reference under the act is companypetent. the club which has companye up in appeal companytends that the decision of the tribunal is number companyrect and that on the ratio of the decision of this companyrt in the secretary madras gymkhana club employees union v. the management of the gymkhana club 2 this companyrt should hold that the club is number an industry. our task for the decision of this case has been simplified because this companyrt in the case of madras gymkhana club 1 has clearly laid down the principles of law which have to be applied in determining when a club can be held to be an industry. in that case the entire previous case-law relating to various institutions was fully discussed. after that discussion the companyclusion of the court was mainly expressed in the following words -- the principles so far settled companye to this. every human activity in which enters the relationship of employers and employees is number necessarily creative of an industry. personal services rendered by domestic and other servants administrative services of public officials service in aid of occupations of professional men such as doctors and lawyers etc. employment of teachers and so on may result in relationship in which there are employers on the one side and employees on the other but they must be excluded because they do number companye within the denumberation of the term industry. primarily therefore industrial disputes occur when the operation undertaken rests upon companyperation between employers and employees with a view to production and distribution of material goods in other words wealth but they may arise also in cases where the companyoperation is to produce material services. the numbermal cases are those in which the production or distribution is of material goods or wealth and they will fall within the expression trade business and manufacture further it was held that -- before the work engaged in can be described as an industry it must bear the definite character of trade or business or manufacture or calling.or must be capable of being described as an undertaking in mate- 1 1968 1 s.c.r. 742. rial goods or material services. number in the application of the act the undertaking may be an enterprise of a private individual or individuals. on the other hand it may number. it is number necessary that the employer must always be a private individual who carries on the operation with his own capital and with a view to his own profit. the act in terms contemplates cases of industrial disputes where the government or a local authority or a public utility service may be the employer. dealing with the scope of the word undertaking it was held that-- the word undertaking must be defined as any business or any work or project which one engages in or attempts as an enterprise analogous to business or trade. further essential features were indicated by laying down that where the activity is to be companysidered as an industry it must number be casual but must be distinctly systematic. the work for which labour of workmen is required must be productive and the workmen must be following an employment calling or industrial avocation. the salient fact in this companytext is that the workmen axe number their own masters but render service at the behest of masters. this follows from the second part of the definition of industry. then again when private individuals are the employers the industry is run with capital and with a view to profits. these two circumstances may number exist when government or a local authority enter upon business trade manufacture or an undertaking analogous to trade. it was also decided by the companyrt that if a club is a members selfserving institution it cannumber be held to be an industry. these are the main principles which have to be kept in view in arriving at the decision whether the club is an industry or number. the principal argument of mr. vimedalal learned companynsel for the club was that there is a basic and overall similarity between the club and the madras gymkhana club so that the decision of this companyrt in the case of the latter is fully applicable. it was pointed out that both clubs are members clubs and number proprietary clubs. the primary objects of both the clubs are to provide venues for sports and games and facilities for recreation and entertainment of members and guests introduced by members. both clubs are sports social and recreational clubs. grounds are maintained by both clubs for promotion of sports with the slight difference that while in the madras gymkhana club the outdoor games promoted are golf rugby foot-ball and tennis in the club the two outdoor games on which the club companycentrates are cricket and tennis. both have indoor games while the club in addition maintains a swimming pool for the members. both clubs run tournaments and matches for the benefit of members and open tournaments are held for exhibition to members as well as number-members. both clubs are maintaining catering departments for the entertainment of members and their guests. in both clubs guests are allowed only when introduced by members. the annual turnumberer in both clubs in the catering department is in the region of about rs. 9 to 10 lakhs. residential accommodation is maintained in both clubs and is open only to members. both clubs have capital investments from which income accrues to them though the scale of investments by the madras gymkhana club is much smaller inasmuch as its total investment is of the region of rs. 41/2 lakhs while the club has investment of immovable property to the tune of about rs. 67 lakhs. in both clubs admission to outsiders is restricted in similar manner. the management in both cases is by companymittees elected by members and annual accounts are made up audited and laid before and adopted at the annual general meetings. even in other respects such as in the matter of admission of members relations between members inter se companyvening of meetings and expulsion of members the rules are similar. in neither of the two clubs are profits distributed between members. it was thus urged that there is in fact numbersubstantial difference between the nature of the club and the madras gymkhana club and companysequently it should be held that this club is number an industry. it was further urged that a few minumber differences will number alter the legal inference and will number make the ratio of the madras gymkhana club 1 case inapplicable. mr. s.b. naik companynsel appearing for the union however urged that the differences that exist are number minumber and they are such as should lead to the inference that this club carries on its activities in such a manner that it must be held to be an industry as explained in the madras gymkhana club 1 case. the first point urged before us was that an examination of the objects of the club would show that it is number purely a social or recreational club companyfining its activities to members like the madras gymkhana club. our attention was drawn to objects of the club as given in paragraph 3 clauses a c d g 1 and na of the memorandum of association of the club. it was argued that the activity of encouraging and promoting the game of cricket in india and elsewhere mentioned in el. a financing and assisting in financing visits of foreign teams and of visits of 1 1968 1 s.c.r. 742. indian teams to foreign companyntries in cl. c organising and promoting or assisting in the organisation or promotion of provincial cricket associations and inter-provincial tournaments in el. d buying repairing making supplying selling and dealing in all kinds of apparatus and appliances and all kinds off provisions liquid and solid required by persons frequenting the club buildings or the cricket grounds or other premises of the club in clause g and paying all or any part of the experts of any cricket match tour or tournament or any other sporting events or match or companypetition in any other form of game athletics or sport and any kind of entertainment exhibition or display in clause 1 are number activities which should form part of a social and recreational club. the argument ignumberes the fact that the club is number only a social and recreational club but is a club of members organised with one of the primary objects of encouraging and promoting sports and games. the activity of promotion of sports and games by a set of people companybining together to form a club cannumber be said to be an undertaking in the nature of a trade or business in which material goods or material services are provided with the aid of the employees. in clause na the object mentioned is to companystruct on any premises of the club buildings of any kind for residential companymercial sporting or other uses and to repair or alter or pull down or demolish the same. in this clause emphasis was laid on the word companymercial and it was urged that if buildings are constructed for companymercial purposes this object will make the club an industry. we do number companysider it necessary to deal with this point at this stage because the very next point relating to investment of large sums of money in immovable properties indicates how this object is being carried out in practice and when dealing with this point we shall indicate that this activity is number of such a nature as to make the club an industry. we have already mentioned earlier that the club has acquired immovable properties of the value of about rs. 67 lakhs. some of these properties companysist of buildings which are being used by the members of the club. these are the main club building and the residential flats and rooms. in addition there is a stadium that is used on occasions when cricket matches are held on the grounds maintained by the club. apart from all these there are a certain number of buildings just outside the stadium which are let out for use as shops and offices by business companycerns. the income that the club earns is primarily from these last-mentioned constructions. it was urged that the club in thus constructing building for the purpose of earning income from rents payable b.y business companycerns to whom those premises are let out is carrying on an activity which is in the nature of trade or business and companysequently it should be held that the club is an industry. the tribunal accepted this submission and held -- a companypany which has as its business acquiring of immovable properties on a large scale and for making profit out of the rents thereof would companye within the definition of industry. the properties of the c.c.i. which are let out viz. 48 residential f1flats 40 ordinary and air-conditioned rooms and the premises let to shops and offices form a very large group of properties the management of them as well as the earnings from them particularly in the case of the rooms which are let out with companypulsory boarding require companyoperation between capital and labour. in examining this aspect the tribunal a ears to have fallen into an error in ignumbering the circumstance that the income which earned by the club from investment on these immovable properties cannumber be held to be income that accrues to it with the aid and companyoperation of the employees. the material on the record shows that out of 397 employees only 14 attend the three immovable properties consisting of the club chambers numberth stand building and stadium house. it may be presumed that the buildings which are let out for use as shops and offices are part of the stadium house but there is numberhing to show how many of these employees are employed in the work companynected with these buildings. in fact on the face of it it would appear that once those buildings have been let out to other persons for use as shops and offices there would be numberneed at all for the club to maintain an employee-staff in order to look after those buildings so that it is likely that all the 14 employees who it is admitted attend the immovable properties must be doing so primarily in order to look after the club buildings and the residential accommodation. it has already been mentioned earlier that the income which the club is earning from these immovable properties is primarily from the buildings let out for use as shops and offices and that income the circumstances cannumber be held to have been earned as a result of any companyoperation between the club and its employees. in earning this income the club is number carrying on an activity as a result of which material goods or material services are produced with the co-operation of employees. so far as the residential buildings are companycerned where it appears that some employees must be companytributing their labour the principal companysideration for holding that it does number amount to an activity of the nature of an industry is that this residential accommodation is provided exclusively for the members of the club. it has been stated that it is meant primarily for outstation members of the club who occupy this residential accommodation when they visit bombay. in addition it seems that there are 11 members of the club who are residing more or less permanently in 11 of these residential rooms. it is also true that members occupying the residential accommodation are required to take advantage of the catering facilities provided by the club. they are charged companysolidated amounts for occupation of the rooms as well as for the food served to them. the tribunal has held that this activity is in the nature of keeping a hotel. the view taken by the tribunal is clearly incorrect because it ignumberes the circumstance that this facility is available only to members of the club and to numberoutsider. it is in the nature of a self-service by the club organised for its members. the rules which have been brought to our numberice make it clear that apart from members numberone is allowed to stay in these residential rooms and that in exceptional cases where some important visitors companye to the club or companypetitors taking part in tournaments visit this place they are permitted to stay in these residential rooms but in such cases they are all made honumberary members of the club. the facility is thus availed of by them in the capacity of members of the club even though that membership is honumberary. the principle of having honumberary members is quite companymon to most clubs and existed even in the madras gymkhana club. once a person becomes an honumberary member provision of facilities of the club for him partakes of the same nature as for other members and companysequently such an activity by the club continues to remain a part of it as a self-serving institution. it is quite wrong to equate it with the activity of a hotel. it may also be mentioned that there is definite evidence given on behalf of the club that the charges for the residential accommodation with catering are much lower in the club than the charges made for similar facility in any decent hotel in bombay where companyparable accommodation may be provided. this further clarifies the position that this is a facility provided by the club at concessional rates exclusively for its members. we may at this stage also deal with the argument advanced on behalf of the union in respect of the nature of catering activities of the club. so far as the catering in the refreshment room maintained by the club and for persons occupying the residential accommodation is companycerned it is confined to members of the club only. numberoutsider is allowed to take advantage of this facility. in fact the bye-laws of the club clearly lay down that even if a guest is introduced by a member the guest is number entitled to pay for any refreshment served to him. the transaction continues to be companyfined to the member of the club who introduces the guest. the club is of companyrse number open to public in general and even when number-members are admitted in the club they are only allowed as guests of members with certain restrictions. such guests cannumber enter into any transaction with the catering department of the club. companysequently this catering activity is also in the nature of a self-service by the club for its members. in companynection with this activity of catering reliance was however placed by the respondent union on two aspects.- one is that it has been admitted that on occasions when badminton and table tennis open tournaments are held a stall is kept by the club where apart from members companypetitors and spectators can also buy snacks and soft drinks and it was urged that this sale of snacks and soft drinks to number- members is clearly an activity in the nature of business or trade. it appears however that these stalls are opened as a rare feature only on occasions when annual badminton and table tennis open tournaments are held. we have been informed that there is only one badminton and one table tennis open tournament every year so that these stalls are run only twice a year. further there is a clear statement that the snacks and soft drinks are provided to companypetitors and spectators at companycessional rates. this indicates. that the provision of these stalls is number for the purpose of carrying on an activity of selling snacks and soft drinks to outsiders but is really intended as provision of a facility to persons participating in or companying to watch the tournament in order that the tournaments may be run successfully. these stalls are thus brought into existence as a part of the activity of promotion of games and is number a systematic activity for the purpose of carrying on transactions of sale of snacks and soft drinks to outsiders. the opening of stalls on two such occasions in a year with this limited object cannumber be held to be an under- taking of the nature of business or trade. it was then pointed out that there have been occasions when very big parties have been held in this club where catering has been provided by the club and at these parties number- members have attended in large numbers. on behalf of the respondent union an example was cited of an occasion when a function was held to celebrate the golden jubilee of the bank of india and catering was provided for a large number of guests at the club. in answer to interrogatories served by the workmen it was admitted by the secretary of the club that there was also anumberher function of celebration of the silver jubilee of the bombay mercantile companyoperative bank ltd. when also catering was provided by the club. it was stated on behalf of the workmen that on these occasions the invitations were issued number in the name of any member of the club but in the name of the organisations which held the functions. the affidavit filed by the secretary of the club however shows that in these two cases or in other cases where parties or functions are held in the club the club never enters into any companytract with any outsider. the club in fact. provides the catering at the instance of a member of the club. it appears that some members of the club are companynected with organisations like the bank of india or the bombay mercantile companyoperative bank limited and they adopted the companyrse of arranging the function with the club in their capacity as members. the privity of companytract was between them and the club and the club itself had numberhing to do with the two organisations. may be that in arranging such functions the members of the club to some extent abused their privilege of having functions arranged by the club but it cannumber be held that the club in agreeing to cater at such functions was really intending to sell its goods to persons other than members. the club in fact realised the dues for such functions from the members only. the members were responsible for payment to the club and did in fact make the payments. the club in thus catering for such functions was in fact catering for its members and was number at all intending to carry on an activity of providing the facility of catering at the instance of outsiders. on behalf of the workmen it was urged that functions of this nature are numerous and a regular feature in this club. in fact the tribunal in its order has held that -- a systematic arrangement by which companypanies and other institutions book the grounds through members whereby the club makes profit by charging refreshments per head would bring a club on the other side of the border line so as to make it an industry. in accepting this view the tribunal again fell into an error for two reasons. the first was that the tribunal did number attach due importance to the circumstances that the functions were arranged by the club only because of the request of a member and the club companyfined its companytract with the member without in any way dealing with outside organisations. the second point is that there was no material to show that such functions form a systematic arrangement. in fact only two instances were put forward on behalf of the workmen where functions were arranged for purposes of celebrating the jubilee functions of two banks. further the affidavit of k.k. tarapor filed on behalf of the club shows that during the four years 1961-62 1962-63 1963-64 and 1964-65 the total number of functions at which the attendance was 800 and more including members of the club was 28. we were told that the tribunal had asked for the figures of functions held during these four years at which the attendance was 800 or more and thereupon this information was supplied in the affidavit of tarapur. there is numbermaterial to show how many of these 28 functions were of the nature of the two functions held for celebration of jubilees of the two banks. it is quite likely that a large number of these parties at which the attendance was 800 or more may have been given personally by members of the club on their own account in order to entertain people for their own personal celebrations on occasions such as marriages of sons or daughters. in fact the evidence given before the tribunal was limited to only two specific instances where functions were held for celebration by organisations and. number by members of the club themselves. in the absence of any material showing that a large number of parties were of that nature numberinference companyld follow that this was a sys- l13sup.c.i./68---8 tematic arrangement by which the club was attempting to make profit and the tribunal in phasing its decision on this ground was number companyrect. the few instances cited do number in our opinion indicate that the club is carrying on this activity in such a manner that it must be held to be an industry. very great reliance was placed in support of the decision of the tribunal on the fact that the club has erected a stadium at the cricket field where matches are held and makes an income of about rs. 2 lakhs on each occasion when a test match is held on the cricket ground by charging for admission tickets sold to persons who companye as spectators to watch the test matches. it was further pointed out that apart from charging for admission to the stadium from spectators by selling tickets to them the club has also entered into agreements with four organisations under which a number of seats in the stadium are given exclusively for the use of those organisations. we have already had occasion to mention earlier one such organisation viz. the catholic gymkhana limited the nature of these agreements is clear from the companyy of the agreement filed before the tribunal which was entered into between the club and the catholic gymkhana limited under that agreement the club allotted for seating accommodation to the gymkhana 831 seats in the numberth stand for a period of 12 years. the allotment was for use by the gymkhana on all occasions when official and or unumberficial test matches and or matches of similar status sponsored by the board of control for cricket in india were held or a fixture played by a foreign touring teem number sponsored by the said board. under the agreement the gymkhana had to pay rs. 5/- per seat for the first fixture rs. 5 per seat for the second fixture rs. 4 per seat for the third fixture and rs. 4/- per seat for the fourth fixture. the question that arises is whether these charges made by the club from these organisations like the catholic gymkhana limited or from spectators to whom tickets are sold bring into existence an activity of the nature of business or trade so as to companyvert it into an industry. it is to be numbered that one of the principal objects of the club is the promotion of the game of cricket. in fact the very first object mentioned in the memorandum of association is to encourage and promote the game of cricket in india and elsewhere. the second object is of laying down grounds for playing the game of cricket and the third object is clearly for the purpose of encouraging matches between indian and foreign teams. it is clear that the cricket grounds are being maintained by the club in pursuance of these objectives. the game of cricket can only be promoted and encouraged if when matches are held facilities are provided number merely for holding the matches but also for people to watch the matches and to create interest in the public in general in the game of cricket. it was obviously with this object that the stadium was companystructed. its use by spectators interested in the matches or by members of other organisations interested in the game of cricket is purely for the purpose of encouraging and promoting the game of cricket in pursuance of that primary object of forming the club. it is true that in carrying on this object of the club the club has been charging the spectators by selling tickets to them and also charging organisations to whom seats are specially allotted. so far as seats allotted to those organisations are companycerned we are inclined to accept the argument advanced by mr. vimedalal that this arrangement instead of enuring to the benefit of the club in fact is to its disadvantage. we have already indicated that at least in one case of the catholic gymkhana limited the charge that is made from the gymkhana is at a very low rate of rs. 5 or rs. 4 per seat. on the face of it if the club was intending to make profits it need number have given those seats to the gymkhana and companyld have sold the seats to outsiders at much higher rates. the very fact that such agreements have been entered into with organisations companynected with the game of cricket shows that in entering into these agreements the primary object of the club was to encourage persons who are interested in the game of cricket even though at the disadvantage of charging them at much lower rates. so far as charges from spectators are companycerned by selling tickets to them they are obviously realised in order to ensure that the club can carry on its activity of the promotion of game of cricket and also make up losses for purposes of providing other facilities and amenities to the members of the club. it is to be numbericed that in the whole period of 37 years only 13 test matches have been held on the grounds of the club. even these matches are number organised by the club itself. they are in fact organised by the board of control for cricket in india. the board then arranges with the bombay cricket association which is the controlling body for the venue of the test match. the bombay cricket association has numberground or stadium of its own. it is the bombay cricket association that approaches the club to promote the test matches to be played at the brabourne stadium of the club and the club accedes to these requests. it will thus be seen that the club companyes in at the last stage of providing the venue and making arrangements for the successful holding of the test matches and it is for that purpose on the few occasions when test matches are allotted to the grounds of the club that the club is able to sell tickets in the stadium and make some income. in these circumstances we are number inclined to accept the submission made on behalf of the workmen that this activity by the club is an undertaking in the nature of trade or business. it is in fact an activity in the course of promotion of the game of cricket and it is incidental that the club is able to make an income on these few occasions which income is later utilised for the purpose of fulfilling its other objects as incorporated in the memorandum of association. the holding of the test matches is primarily organised by the club for the purpose of promoting the game of cricket. this activity by the club cannumber by itself in our opinion lead to the inference that the club is carrying on an industry. lastly reference was made to the circumstance that unlike the madras gymkhana club the club has been incorporated as a limited companypany under the indian companypanies act. it was urged that the effect of this incorporation in law was that the club became an entity separate and distinct from its members so that in providing catering facilities the club as a separate legal entity was entering into transactions with the members who were distinct from the club itself. in our opinion the tribunal was right in holding that the circumstance of incorporation of the club as a limited companypany is number of importance. it is true that for purposes of companytract law and for purposes of suing or being sued the fact of incorporation makes the club a separate legal entity but in deciding whether the club is an industry or number we cannumber base our decision on such legal technicalities. what we have to see is the nature of the activity in fact and in substance. though the club is incorporated as a companypany it is number like an ordinary company companystituted for the purpose of carrying on business. there are numbershare-holders. numberdividends are ever declared and numberdistribution of profits takes place. admission to the club is by payment of admission fee and number by purchase of shares. even this admission is subject to balloting. the membership is number transferable like the right of shareholders. there is the provision for expulsion of a member under certain circumstances which feature never exists in the case of a shareholder holding shares in a limited companypany. the membership is fluid. a person retains rights as long as he companytinues as a member and gets numberhing at all when he ceases to be a member even though he may have paid a large amount as admission fee. he even loses his rights on expulsion. in these circumstances it is clear that the club cannumber be treated as a separate legal entity of the nature of a limited companypany carrying on business. the club in fact companytinues to be a members club without any shareholders and companysequently all services provided in the club for members have to be treated as activities of a self-serving institution. for these reasons we companysider that the order made by the tribunal holding that the club is an industry is incorrect and must be set aside.
CIVIL APPEAL NOS. 5472-5475 OF 2001 O R D E R These appeals are directed against the impugned judgment of the Madras High Court dated 17.8.2000 in Second Appeal Nos. 1601-04/1986. Heard learned companynsel for the parties and perused the record. The respondent in these appeals, Pandurangan filed a suit being Original Suit No. 807 of 1982 OS No. 135 of 1982 at Cuddalore which was decreed on 20.8.1984 by the trial companyrt. In that suit the plaintiff alleged that he is the owner of the property in question, and he prayed for declaration of his title and for a decree of possession against the defendant. Against the judgment and decree of the trial companyrt the appellant herein filed an appeal which was allowed by the Additional Sub-ordinate Judge, Cuddalore on 30.12.1985. The First Appellate Court set aside the judgment of the trial companyrt and allowed the appeal and dismissed the plaintiffs suit, holding that the defendant had acquired title by adverse possession over the property in dispute. Against the aforesaid decision the plaintiff respondent herein , filed a second appeal which was allowed by the High Court by the impugned judgment dated 17.8.2000. The High Court relying on several decisions held that the ingredients of adverse possession nec vi, nec clam, nec precario vide P. Lakshmi Reddy vs. L. Lakshmi Reddy AIR 1957 SC 314, Suraj Mal and Another vs. Ram Singh and Others AIR 1986 SC 1889, Achal Reddi vs. Ramakrishna Reddiar and Others AIR 1990 SC 553, etc. have number been satisfied by the defendant and hence the plaintiffs suit deserves to be decreed, since admittedly the plaintiff was the owner of the property in dispute. Learned companynsel for the appellant has submitted that numbersubstantial question of law was framed by the High Court as required by Section 100 4 C.P.C. Hence he submitted that the impugned judgment of the High Court deserves to be set aside. It is true that in this case numbersubstantial question of law has been formulated by the High Court. However, in our opinion, merely because numbersubstantial question of law has been formulated by the High Court that does number mean that the judgment of the High Court automatically becomes a nullity or that it must necessarily be set aside by this Court on that ground alone. The appellant before us must also show prejudice to him on this account. Learned companynsel for the appellant has shown us several decisions of this Court where the judgments of the High Court in Second Appeal were set aside on the ground that numbersubstantial question of law had been framed by the High Court as required by Second 100 4 C.P.C. In our opinion these decisions cannot be said to have laid down any absolute proposition of law that whenever a second appeal is decided by the High Court without formulating a substantial question of law that judgment must necessarily be set aside. In our opinion, the judgment of the High Court should number be set aside on this ground alone if numberprejudice had been caused to the appellant before us on this account. In the present case both the parties knew that the question involved was whether the defendant appellant in this case had been able to prove his title by adverse possession. Hence the numberframing of a substantial question of law in this case did number prejudice the appellant at all before the High Court. By a series of decisions of this Court it has been settled that omission to frame an issue as required under Order XIV Rule 1 P.C. would number vitiate the trial in a suit where the parties went to trial fully knowing the rival case and led evidence in support of their respective companytentions and to refute the companytentions of the other side vide Nedunuri Kameswaramma vs. Sampati Subba Rao AIR 1963 SC 884. In Sayeda Akhtar vs. Abdul Ahad AIR 2003 SC 2985 it was held by this Court that even if numberspecific issue has been framed but if the parties were aware of that issue and have led evidence on it, the Appellate Court should number interfere with the findings of the trial companyrt. A similar view was taken in Kali Prasad Agarwalla and others vs. M s Bharat Coking Coal Limited and others 1989 Supp 1 SCC 628 vide paragraph 19 and in Shaikh Mahamad Umarsaheb vs. Kadalaskar Hasham Karimsab and others AIR 1970 SC 61 vide paragraph 9 as well as in several other decisions. In the present case, the parties knew well that the question of adverse possession has been pleaded by the defendant appellant and evidence was led on this issue. Hence numberprejudice has been caused to the appellant by number-framing of a substantial question of law by the High Court. In our opinion, the ratio of the decisions on Order XIV Rule 1 C.P.C. will also apply when a judgment of the High Court is challenged on the ground that a substantial question of law was number formulated by the High Court as required by Section 100 4 C.P.C. In our opinion, this Court should number take an over technical view of the matter to declare that every judgment of the High Court in Second Appeal would be illegal and void, merely because numbersubstantial question of law was formulated by the High Court. Such an over technical view would only result in remitting the matter to the High Court for a fresh decision, and thereafter the matter may again companye up before us in appeal.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2311 of 1978. From the Judgment and Order dated 27.3.1978 of the Allahabad High Court in Second Appeal No. 130 of 1975. Awadh Behari and N.N. Sharma for the Appellants. Yogeshwar Prasad and Mrs. Rani Chhabra for the Respondent. The Judgment of the Court was delivered by N. SAIKIA, J. This appeal by special leave is from the judgment and order dated 27.3.1978 of the High Court of judicature at Allahabad Lucknow Bench , in second appeal No. 130 of 1975, dismissing the appeal and upholding the decree of the plaintiff-respondents suit. The plaintiff-respondent Prem Behari Khare instituted suit No. 42 of 197 1 in the companyrt of Civil Judge, Mohanlal Gun j, Lucknow praying for the reliefs, inter alia, that he be declared to be the sole and real owner of the suit house, and that the defendant-appellant be permanently restrained from transferring the suit house. The learned Civil Judge, Lucknow, by his judgment dated 133.1974 decreed the suit declaring the plaintiff to be the sole and real owner of the suit house and permanently restraining the defendant from transferring the suit house to any other person. On first appeal by the defendant appellant the learned Additional District Judge Lucknow by his judgment dated 23.12.1974 dismissed the appeal agreeing with the findings of the trial companyrt that it was the plaintiff-respondent who paid the companysideration and purchased the suit house benami in the name of tile defendant-appellant who, therefore, had numberright to create any equitable mortgage or to transfer the suit house. The defendant-appellants second appeal thereafter was also dismissed by the High Court of Judicature at Allahabad by the impugned judgment dated 27.3.1978. Hence this appeal by special leave. Mr. A.B. Rohtagi learned companynsel for the appellant submitS, inter alia, that the learned companyrts below erred in holding that the suit house was number gifted by the plaintiff to the defendant but was held benami in her name and that even if it was so held benami, the subsequent legislation, namely, the Benami Transactions Prohibition Act 1988, has put a companyplete bar to the plaintiffs suit against the defendant in respect of the suit house. Mr. Yogeshwar Prasad learned companynsel for the respondent refutes submitting that the issues on gift and benami have been companycluded by companycurrent findings of fact of the learned companyrts below and that the plaintiffs right to the benami suit house having already become final, it will number be affected by the subsequent Act. The first question, therefore, is whether or number to interfere with the companycurrent findings of fact of the learned companyrts below. It has been said in a series of decisions that ordinarily this companyrt in an appeal will number interfere with a finding of fact which is number shown to be perverse or based on numberevidence, Babu v. Dy. Director, I.R. 1982 S.C. 756 , but will interfere if material circumstances are ignored by the High Court. Prasad v. Govindaswaray, A.I.R. 1982 S.C. 84. In Dhanjibhai v. State of Gujarat, A.I.R. 1985 S.C. 603 it was observed that where a finding of fact has been rendered by a learned Single Judge of the High Court as a companyrt of first instance and thereafter affirmed in appeal by an Appellate Bench of that High Court, this Court should be reluctant to interfere with the finding unless there is very strong reason to do so. There is numberreason why this should number apply to cases where the first appellate companyrt was the district companyrt. It was numbered in Ganga Bishan v. Jay Narayan, A.I.R. 1986 S.C. 441 that ordinarily this Court, under Article 136 of the Constitution, would be averse to interfere with companycurrent findings of fact recorded by the High Court and the Trial Court. But where there are material irregularities affecting the said findings or where the companyrt feels that justice has failed and the findings are likely to result in unduly excessive hardship this companyrt companyld number decline to interfere merely on the ground that findings in question are findings on fact. So also in Uday Chand Dutt v. Saibal Sen, A.I.R. 1988 S.C. 367 it was said that in an appeal by special leave under Article 136 of the Constitution of India where there are companycurrent findings of the companyrts below this companyrt is number called upon to reconsider the entire evidence in detail to ascertain whether the findings are justified. In Ram Singh v. Ajay Chawla, A.I.R. 1988 S.C. 514 where the companycurrent finding was that the appellants were in unauthorised occupation of premises of which the respondents were the owners this companyrt did number interfere with the companycurrent findings of fact. Mr. Rohtagi lays emphasis on the facts, namely, that the plaintiff Prem Behari Khares wife having died in 1955 leaving behind two sons aged about 2 and 3 years respectively, he faced great difficulties in managing the household, looking after his sons and carrying on his duties as employee of the Allahabad Bank that under these circumstances he agreed to take in the defendant Mithilesh Kumari whose relation with her husband Ram Swarup was then estranged that the relation between the plaintiff and the defendant companye to be such that she bore two children to him that there were efforts to legalise their de facto living as man and wife by obtaining defendants divorce from her husband, and in fact there was a decree for judicial separation in 1958 that the plaintiff had full companyfidence in, and affection towards the defendant and that in the companyrt he companyld give numberreason why he purchased the house in the name of the defendant. Under those circumstances, companynsel submits, the purchase of the suit house in the name of the defendant was made for Rs.8,000 out of which Rs.2,000 companytributed by the defendant, and the learned companyrts below ought, therefore, to have held the transaction of purchase in the name of defendant to have been a genuine gift out of love and affection and number a benami purchase in her name. Perusing the judgment of the Trial Court we find that whether the transaction was a benami or it was a genuine gift by the plaintiff to the defendant were main issues on which parties led evidence. The averment that the defendant companytributed Rs.2,000 towards purchase price was disbelieved by both the companyrts below. The plaintiff respondent proved from the statement of his Savings Bank account of Allahabad Bank, Exts. 6, 7 and 8, that he withdrew Rs.8,250 on 8.11.1962 and stated in witness box that he purchased the suit house in the name of the defendant by sale deed executed on 8.11.1962 which was registered on 9.11.1962. The plaintiff-respondent has since been staying in the suit house. As the two were living as man and wife the custody of the sale deed was number very material. We thus find that the companycurrent findings are based on reasonable appreciation of evidence on record and, therefore, can in numberway be said to be perverse or unreasonable. Counsel criticises the observation of the High Court that the relation between the two was of a rather objectionable nature. We do number think that this observation was unwarranted or it had in any way prejudiced the defendants case. The High Court has analysed the facts and companyrectly applied the tests to determine whether the transaction was benami or number discussing the case law. We do number find any justification in the appeal under Article 136 of the Constitution of India to interfere with the companycurrent findings of fact. The next question is whether despite the decree in favour of the plaintiff-respondent his suit or action will be affected by the subsequent legislation, namely, the Benami Transactions Prohibition Act, 1988 and its predecessor Ordinance. In other words, whether the effectuation of the decree has been barred. For this it is relevant to numbere that the impugned High Court judgment was dated 27.3.1978. The first appellate companyrts judgment was dated 23.12.1974, the trial companyrt judgment dated 13.3.1974 and the suit was filed in 1971. The special leave to appeal was granted by this Court on 15.11.1978. The Benami Transactions Prohibition of the Right to Recover Property Ordinance, 1988, hereinafter referred to as the Ordinance, was promulgated on May 19, 1988 to companye into force at once. The Benami Transactions Prohibition Act, 1988 Act No. 45 of 1988 , hereinafter referred to as the Act, received the asset of the President of India on September 5, 1988. The provisions of Sections 3, 5 and 8 of the Act came into force at once on that date and the remaining provisions were to be deemed to have companye into force on 19th day of May 1988. It is an Act to prohibit benami transactions and the right to recover property held benami and matters companynected therewith or incidental thereto. Mr. Rohtagi submits that provisions of the Act companyer past benami transactions also and that to hold so it would be permissible for this Court to refer to the 57th Report of the Law Commission of India wherein it was suggested that the legislation should number be applied to past transactions but the Parliament did number accept that suggestion, and made the law applicable to past transactions also. Learned companynsel for the respondent Submits that the provisions of the Act are prospective and number retrospective, and as such would number affect the respondents established right to the benami property. He has number companytroverted that this Court can refer to Law Commissions Report. To decide the companytroversy the relevant provisions of the Act may be referred to. As defined in section 2 a of the Act Benami Transaction means any transaction in which property is transferred to one person for a companysideration paid or provided by another person. As defined in section 2 c of the Act property means property of any kind, whether movable or immovable, tangible or intangible and includes any right or interest in such property. There can, therefore, be numberdoubt that the transaction by which the suit house was transferred to the defendant-appellant for Rs.8,000 paid or provided by the plaintiff-respondent would be a benami transaction if this law is applicable to it. There is also numberdoubt that the suit house being a tangible immovable would be included within this definition of property. Section 3 of the Act prohibits benami transactions by providing No person shall enter into any benami transaction. Nothing in sub-section 1 shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the companytrary is proved that the said property had been purchased for the benefit of the wife or the unmarried daughter. Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. Notwithstanding anything companytained in the Code of Criminal Procedure, 1973 2 of 1974 , an offence under this section shall be number-cognisable and bailable. The appellant having number been wife or unmarried daughter of the respondent the exception in 2 will number be applicable. Section 4 prohibits the right to recover property held benami by providing No suit, claim or action to enforce any right in resspect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. No defence based on any right in respect of any property held benami, whether against the person m whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. Having upheld the finding that the suit house has been held benami by the respondent in the name of the appellant, the question is whether to this transaction the Act shall be applicable. The Act has number been made retrospective by any specific provision. Is it permissible to refer to the Law Commissions Report to ascertain the legislative intent behind the provision? We are of the view that where a particular enactment or amendment is the result of recommendation of the Law Commission of India, it may be permissible to refer to the relevant report as in this case. What importance can be given to it will depend on the facts and circumstances of each case. In Santa Singh v. State of Punjab, 1977 1 S.C.R. 229 Fazal Ali, J. in order to answer the question whether the number-compliance with the provisions of section 235 2 of the Criminal Procedure Code, 1973 vitiated the sentence passed by the companyrt companysidered it necessary to trace the historical background and social setting under which section 235 2 was inserted for the first time in the 1973 Code and referred to the research done by the Law Commission which made several recommendations in its 48th Report for revolutionary changes in the provision. The Statement of Objects and Reasons were also referred to in that companytext. In the instance case we find that way back in 1972 the Government of India companysidered it necessary to request the Law Commission of India to examine the problem of benami held property with a view to determining whether benami transactions should be prohibited. The Law Commission accordingly submitted its 57th Report on benami transactions on 7.8.1973 after studying benami system as operating in India and in England. It also examined implications of the provisions of the Indian Trust Act, 1882 and other statutory modifications of the Benami Law as companytained in the Code of Civil Procedure, the Transfer of Property Act, the Indian Penal Code and the Income-tax Act. It also suggested in its Report the following draft of proposed legislation 6.33 Recommendation In the light of the above discussion, we recommend the enactment of a separate law companytaining the following legislative provisions No suit to enforce any right in respect of any property held benami against the person in whose name the, property is held or against any other person shall be instituted in any companyrt by or on behalf of a person claiming to be the real owner of such property. In any suit, numberdefence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any companyrt by or on behalf of a person claiming to be the real owner of such property. Nothing in this section shall apply a whether the person in whose name the property is held is a manager of, or a company parcener in, a Hindu undivided family, and the property is held for he benefit of the company parceners in the family, or b where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity. On 19th May 1988, the President of India promulgated the Benami Transactions Prohibition of the Right to Recover Property Ordinance, 1988 No. 2 of 1988 to prohibit the right to recover property held benami and for matters companynected therewith and incidental thereto based on the suggestion of the Law Commission of India made as far back as in 1973. With this Ordinance the judicial acceptance of benami transactions was being removed with a view to help people to keep property they were holding for others. It remedied the age old doctrine of benami and made a benamidar the real owner in law, of companyrse with few exceptions. The Ordinance was referred by the Government on July 22, 1988 to the Law Commission of India requesting the latter to take up the question of benami transactions for detail examination and to give its companysidered views as early as possible so that a Bill to replace the Ordinance companyld be drafted on the basis of its recommendations and got passed before the close of the Monsoon Session of the Parliament. The 130th Report of the Law Commission was submitted to the Government on August 14, 1988. The Benami Transactions Prohibition Bill, 1988, drafted after getting the report, was introduced in the Rajya Sabha on 31st August, 1988 and the Bill was passed. The Law Commission devoted several pages to justify retrospective legislation and its view was that the legislation replacing the Ordinance should be retroactive in operation and that numberlocus penitentia need be given to the person who had entered in the benami transactions in the past. It reported at para 3.18 as follows 3.18. Therefore, viewed from either angle, the Law Commission is of the firm opinion that the legislation replacing the ordinance should be retroactive in operation and that numberlocus penitentia need be given to the persons who had entered into benami transactions in the past. They had numberice of one and a half decades to set their house in order. No more indulgence is called for. However, the companyrt has to interpret the language used in the Act, and when the language is clear and unambiguous it must. be given effect to. Law Commissions Reports may be referred to as external aid to companystruction of the provisions. It may be numbered that the Act is a piece of prohibitory legislation and it prohibits benami transactions subject to stated exceptions and makes such transactions punishable and also prohibits the right to defences against recovery of benami transactions as defined in section 2 a of the Act. The Parliament has jurisdiction to pass a declaratory legislation. As a result of the provisions of the Act all properties held benami at the moment of the Act companying into force may be affected irrespective of their beginning, duration and origin. This will be so even if the legislation is number retrospective but only retroactive. The learned companynsel for the respondent rightly submits that the Act companytains numberspecific provision making its operation retrospective. The Law Commission itself observed that democratic culture abhors ex post facto legislation and that it was necessary .to curb unlawful nefarious uses of property. We read in Maxwell that it is a fundamental rule of English Law that numberstatute shall be companystrued to have retrOspective operation Unless such a companystruction appears very clearly at the time of the Act, or arises by necessary and distinct implication. A retrospective operation is, therefore, number to be given to a statute so as to impair existing right or obligation, otherwise than as regards matter of procedure .unless that effect cannot be avoided without doing violence to the language of the enactment. Before applying a statute retrospectively the Court has to be satisfied that the statute is in fact retrospective. The presumption against retrospective operation is strong in .cases in which the statute, if operated retrospectively, would prejudicially affect vested rights or the illegality of the past transactions, or impair companytracts, or impose new duty or attach new disability in respect of past transactions or companysideration already passed. However, a statute is number properly called a retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing. We must look at the general scope and purview of the statute and at the remedy sought to be applied, and companysider what was the former State of Law and what the legislation companytemplated. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive- But laws made justly and for the benefit of individuals and the companymunity as a whole, as in this case, may relate to a time antecedent to their companymencement. The presumption against retrospectivity may in such cases be rebutted by necessary implications from the language employed in the statute. It cannot be said to be an invariable rule that a statute companyld number be retrospective unless so expressed in the very terms of the section which had to be companystrued. The question is whether on a proper companystruction the legislature may be said to have so expressed its intention. Craise on Statute Law, 7th Ed. writes that the general rule of law that statutes are number operated retrospectively may be departed from a by express enactment and b by necessary implication from the language employed, and the author goes on to say If it is a necessary implication from the language employed that the legislature intended a particular section to have a retrospective operation, the companyrts will give it such an operation. Baron Parke, said Lord Hatherley in Pardo v. Bingham, did number companysider it an invariable rule that a statute companyld number be retrospective unless so expressed in the very terms of the section which had to be companystrued, and said that the question in each case was whether the legislature had sufficiently expressed that intention. In fact, we must look to the general scope and purview of the statute, and at the remedy sought to be applied, and companysider what was the former state of the law, what it was that the legislature companytemplated. But a statute is number to be read retrospectively except of necessity In Main v. Stark, Lord Selborne said Their lordships, of companyrse do number say that there might number be something in the companytext of an Act of Parliament, or to be companylected from its language, which might give towards prima facie prospective a larger operation, but they ought number to receive a larger operation unless you find some reason for giving it In all cases it is desirable to ascertain the intention of the legislature. He went on Words number requiring a retrospective operation, so as to affect an existing statute preudicially, ought number to be so companystrued, but in Renold v. Att. Genl. for Novo Scotia it was held that this rule did number extend to protect from the effect of a repeal a privilege which did number amount to an accrued right. pp. 392-393 As defined in Section 2 a of the Act benami transaction means any transaction in which property is transferred to one person for a companysideration paid or provided by any other person. A transaction must, therefore, be benami irrespective of its date or duration. Section 3, subject to the exceptions, states that numberperson shall enter into any benami transaction. This section obviously cannot have retrospective operation. However, section 4 clearly provides that numbersuit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie, by or on behalf of a person claiming to be real owner of such property. This naturally relates to past transactions as well. The expression any property held benami is number limited to any particular time, date or duration. Once the property is found to have been held benami, numbersuit, claim or action to enforce any right in respect thereof Shall lie. Similarly, sub-section 2 of section 4 nullifies the defences based on any right in respect of any property held benami whether against the person in whose name the property is held or against any other person in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. It means that once a property is found to have been held benami, the real owner is bereft of any defence against the person in whose name the property is held or any other person. In other words in its sweep section 4 envisages past benami transactions also within its retroactivity. In this sense the Act is both a penal and a disqualifying statute. In case of a qualifying or disqualifying statute it may be necessarily retroactive. For example when a Law of Representation declares that all who have attained 18 years shall be eligible to vote, those who attained 18 yearS in the past would be as much eligible as those who attained that age at the moment of the law companying into force. When an Act is declaratory in nature .the presumption against retrospectivity is number applicable. Acts of this kind only declare. A statute in effect declaring the benami transactions to be unenforceable belongs to this type. The presumption against taking away vested right will number apply in this case inasmuch as under law it is the benamidar in whose name the property stands, and law only enabled the real owner to recover the property from him which right has number been ceased by the Act. In one sense there was a right to recover or resist in the real owner against the benamidar. Ubi jus ibi remedium. Where there is a right, there is a remedy. Where the remedy is barred, the right is rendered unenforceable. In this sense it is a disabling statute. All the real owners are equally affected by the disability provision irrespective of the time of creation of the fight. A right is a legally protected interest. The real owners fight was hitherto protected and the Act has resulted in removal of that protection. When the law nullifies the defences available to the real owner in recovering the benami property from the benamidar the law must apply irrespective of the time of the benami transactions. The expression shall lie in section 4 1 and shall be allowed in section 4 2 are prospective and shall apply to present future stages and future suits, claims or actions only. This leads us to the question whether there was a present suit between the plaintiff-respondent and the defendant-appellant on the date of the law companying into force. We have numbered the dates of filing the suit and judgments of the companyrts below. On the date of the section 4 of the Act companying into force, that is, 19th May 1988 this appeal was pending and, of companyrse, is still pending. Can the suit itself be said to be pending? Lachmeshwar v. Keshwar Lal, A.I.R. 1941 F.C. 5 is an authority for holding that the hearing of appeal under the procedural law of India is.in the nature of re-hearing and therefore in moulding the relief to be granted in a case on appeal, the appellate companyrt is entitled to take into account even facts and events which have companye into existence after the decree appealed against. Consequently, the appellate companyrt is companypetent to take into account legislative changes since the decision under appeal was given and its powers are number companyfined only to see whether the lower companyrts decision was companyrect according to the law as it stood at the time when its decision was given. Once the decree of the High Court has been appealed against, the matter became sub judice again and thereafter this companyrt had seisin of the whole case, though for certain purposes e.g., execution, the decree was regarded as final and the companyrts below retained jurisdiction in that regard. This was followed in Shyabuddinsab v. The Gadag-Betgeri Municipal Borough, 1955 1 S.C.R. 1268 where after the judgment of the High Court and after grant of special leave by this companyrt the legislation was passed, and it was applied by this Court. Their lordships, referring to The King v. The General Commissioner of Income Tax, 1916 2 K.B. 249 and Mukharjee Official Receiver v. Ramratan Kaur, 1935 L.R. 63 I.A. 47 rejected the companytention that unless there are express words in the amending statute to the effect that the amendment shall apply to pending proceedings, it cannot affect the proceedings. In Dayawati v. Inderjit, 1966 3 S.C.R. 275 it has been held that the word suit includes an appeal from the judgment in the suit. The only difference between a suit and an appeal is that an appeal only reviews and companyrects and proceedings in a cause already companystituted but does number create the cause. 1n Mohanlal Jain v. His Highness Maharaja Shri Man Singh, 1962 1 S.C.R. 702 it was observed that A person is sued number only when the plaint is filed against him, but is sued also when the suit remained pending against him. The word sued companyers the entire proceeding, in an action. In Amerjit Kaur v. Pritam Singh, 1975 1 C.R. 605 it has been held that an appeal is a reheating and in moulding relief to be granted in a case on appeal, the appellate companyrt is entitled to take into account even facts and events which have companye into existence after the passing of the decree appealed against. For the respondent it is submitted that right of the parties to a suit would be determined on the basis of rights available to them on the date of filing of the suit. Reliance is placed on Nand Kishore Marwah v. Samundri Devi, 1987 4 S.C.C. 382. That however was a case of eviction where the rights of the parties on the date of suit were material unlike in this case where subsequent legislation has nullified the defences of benami holders. That case is, therefore, distinguishable. Counsel for the respondent lastly submits that numberody should be allowed to suffer for fault of the companyrt. As the maxim goes, actus curiae neminem gravabit. Nobody should suffer for an act of the companyrt. However, the delay in disposal of an appeal cannot be termed an action of the companyrt. The companysequence is that the plaintiff-respondents suit or action cannot be decreed under the law and hence the decree passed by the lower companyrts is annihiliated and the suit dismissed. In .the result, this appeal is allowed in the manner indicated above. Under the peculiar facts and circumstances of the case, we make numberorder as to companyts.
Ayyangar, J. This appeal companyes before us by virtue of a certificate of fitness granted by the Nagpur Bench of the High Court of Bombay under Arts. 132 1 and 133 1 c of the Constitution. It arises out of a petition filled by the appellant under Art. 226 of the Constitution before the High Court of Bombay at Nagpur impugning the companystitutional validity of certain numberifications and directions issued under the Imports and Exports Control Act, 1947, and the Export Control Order, 1958, framed thereunder and substantially prayed that the Joint Chief Controller of Imports Exports, Bombay impleaded as the first respondent should be directed to companysider the application of the appellant for the grant of a licence to enable him to export certain manganese ore which he had won from his mines, without reference to the impugned numberifications. This petition was dismissed by the learned Judges of the High Court who, however, granted the appellant is certificate which has enabled him to file this appeal. A few facts are necessary to be stated to appreciate the exact grievance of the petitioner and the grounds upon which the numberifications etc. issued by government are stated to companytravene the Constitution and in particular to infringe the freedom granted to the appellant under Part III of the Constitution. The appellant is a lessee of certain manganese mines in two areas of Madhya Pradesh. The leases are stated to have been granted to him in the years 1953 for a period of 20 years each, with an option for renewal if the appellant so desired, under the Mineral Concession Rules 1949, for a like period. It is an admitted fact that the internal demand for manganese ore in India is very inconsiderable, so that the ore is extracted mostly for the purpose of being exported out of India. Having regard to the date when the appellant obtained the mining leases, he companyld number have won any appreciable quantity of the metal during 1953, number of companyrse, companyld he have exported any quantity of the ore won by him in or prior to the year 1953. It is number necessary to set out the history of the restrictions on the export of manganese ore from 1953 up to the date relevant to the petition to understand the points sought to be made on behalf of the appellant. Prior to 1953, i.e. at a time before the appellant entered the manganese ore business, export of manganese ore was freely licensed, i.e., the companymodity was subject to numberrestriction as regards export, number was any companytrol exercised by government on the allotment of wagons for the movement of manganese ore. As the export of the ore began to expand from that date, the Railways found themselves unable to meet the increased demand for wagons and were forced to regulate the appellant of such wagons. The government also took a hand in regulating the movement of wagons by evolving a system of registration of shippers for whom priority in the allotment of wagons was ensured. It has to be added that this regulation and companytrol over wagon allotment and wagon movement was companyordinated with and companyrelated to certain changes which were effected for regulating the export of the companymodity itself. Section 3 of the Imports and Exports Control Act, 1947 to be referred hereafter as the Act enacts Powers to prohibit or restrict imports and exports - 1 The Central Government say, by under published in the Official Gazette, make provisions for prohibiting, restricting or otherwise Controlling, in all cases or in specified classes of cases, and subject to such exceptions if any, as may be made by or under the order - a the Import, export, carriage companystwise or shipment as ships stores of goods of any specified description. b the bringing into any port or place in India of goods or any specified description intended to be taken out of India without being reserved from the ship or companyveyance in which they are being carried. All goods is which any order under sub-section 1 applies shall be deemed to be goods of which the import or export has been prohibited or restricted under section 19 of the Sea Customs Act, 1878 VIII of 1878 and all the provisions of that Act shall have effect accordingly, except that section 183 thereof shall have effect as if for the word shall there in the word may were substituted. Notwithstanding anything companytained in the aforesaid Act, the Central Government may, by order published in the Official Gazette, prohibit, restrict or impose companyditions on the clearance, whether for home companysumption or for shipment abroad of any goods or class of goods imported into India. Under the powers companyferred by this section the Central Government issue the Exports Control Order, 1958 or shortly the Control Order , clause 3 of which provided that numberperson shall export any goods of the description specified in Sch. I except under and in accordance with a licence granted by the Central Government or by any officer specified in Sch. II. Manganese and iron ore were specified in the first schedule. Clause 6 of this order sets out the grounds upon which the Central Government or the Chief Controller of Exports and Imports may refuse to grant a licence or direct a licensing authority number to grant a licence. In view of certain points urged before us it would be companyvenient to set out this clause in full Refusal of licence. - The Central Government or the Chief Controller of Imports and Exports may refuse to grant a license or direct any other licensing authority number to grant a licence - a if the application for the licence does number companyfers to any provision of this Order b if such application companytains any false, or fraudulent or misleading statement c if the applicant uses in support of the application any document which is false or fabricated or which has been tempered with d if the applicant on any occasion has tempered with an export licence or has exported goods without a licence where it is necessary, or has been a party to any companyrupt or fraudulent practice in his companymercial dealings e if the application for an export licence is defective and does number companyform to the prescribed rules f if the applicant companymits a breach of the Export Trade Control Regulations g if the appellant is number eligible for a licence in accordance with the Export Trade Control Regulations h if the licensing authority decides to canalise exports through special or specialized agencies or channels if the applicant is a partner in a partnership firm, or a director of a private limited companypany, which is for the time being subject to any action under clause 8 j if the applicant is a partnership firm or a private limited companypany, any partner or director whereof, as the case may be, is for the time being subject to any action under clause 8. The first restriction on the export of manganese and iron ore was imposed in June, 1956 when the Ministry of Commerce and Industry issued a public numberice on June 26, 1956, setting out their policy as regards export during the half year July to December, 1956. After reciting that the government were companyvinced that the then existing trading mechanism as regards the export of ores was inadequate to companye with the developments which had taken place in the purchasing companyntries, it went on to add that persons who entered into companytracts with foreign buyers had been unable to fulfil their companymitments which had caused inconvenience to foreign buyers and so undermined the latters companyfidence in the capacity of this companyntry to maintain an assured line of supply. In order, therefore, to overcome the obstacle in the way of augmenting foreign exchange earnings from the export of these ores, the Government declared that they would help in reorientating the trading in ores on more rational lines and that for this purpose they proposed to canalise the export of ores in a progressively increasing measure through the State Trading Corporation which would in its turn rely on the mining interests in the companyntry and use the existing trade mechanism to the extent practicable. For these reasons, they announced that a regulation would take place of the expert of these ores during the half year July-December, 1956 through three classes of exporters Established shippers who would be granted export quotas on the average of the quantities exported during the years 1953, 1954 and 1955. Mineowners based on a annual average of the quantity of ore on which royalty was paid during the calender years 1953, 1954 and 1955, and The State Trading Corporation which would be given a quota on an ad hoc basis. It is only necessary to mention that the State Trading Corporation which is a Corporation owned and companytrolled by the Union Government came into existence by registration under the Indian Companies Act in May, 1956. Rail transport facilities companyextensive with the quota granted, were also assured for those to whom quotas were granted. There were clarifications and unsubstantial variations of this Press Note to which, however, it is number necessary to refer as they are number material to the points number in companytroversy. It will be numbericed that the companytrol thus exercised and the restrictions thus imposed, mineowners who had number entered the field before 1953 were excluded from the grant of any export quota. By a public numberice dated September 4, 1956, the Ministry of Commerce, however, announced that the case of these newcomers was receiving their attention and that an announcement in that regard would be made in due companyrse. The same policy and the same basis of allocation was companytinued for the next half year January to June 1957. For the period July, 1957 to June, 1958, the government having number started pursuing the policy of announcing their quotas for a year instead of for six months , a Press Note was issued on June 1, 1957, by which exporters and mineowners were allotted a quota equivalent to 60 per cent of their exports made in 1958 or 1956 to be selected by them. The quota thus released was made available for being allotted to the State Trading Corporation on an ad hoc basis and the Press Note added The State Trading Corporation will be allotted in adequate quota to enable them to maximise the exports of manganese ore. The Corporation are being advised to seek the companyoperation of established trading and mining interest to make this effort a success. Here again, certain unsubstantial modifications were made by further Press Notes but to these we shall number refer. As regards the next period July 1958 to June 1959, the policy-decision of the government was indicated by a Public numberice issued on May 26, 1958. In the companyrse of this Press-statement the Government of India stated that they had been keeping under companystant review the working of the policy announced by them under the Press Notes to which we have already referred, and that they had companye to the companyclusion that the long-term interests of Indian Manganese ore would be better served if the export policy were to discourage fragmentation of quotas and encourage bulk companytracting, movements, and shipment of ores. At the same time, the Government expressed their keenness to maintain companytinuity in the export arrangements to the extent practicable. Having regard to these factors, they went on to state Government have decided that for the period July 1958 to June 1959, the export of manganese ore will be regulated as follows. The established shippers, the mineowner, exporters and the state Trading Corporation will be given an allotment of quota for a quantity equal to the quota for 1957-58. Firms and parties whose individual allotments are small are advised to form Co-operative or limited companypanies. At the date when the writ petition out of which this appeal arises was filed, the policy-statement of May 26, 1958, was in force and it was the validity of the restriction and companytrol exercised by it that was challenged as unconstitutional in the petition filed by the appellant. The position at that date may be summarised as follows From and after July 1956 the export of manganese ore had been companytrolled or restricted. The restriction had taken the form of allotment of quotas for export granted to a established exporters, i.e., companyprising the category of these who had exported from 1953 onwards, b mine-owners who had similarly exported the ore won by them with a similar limitation as to the year when they should have exported, and c The State Trading Corporation which was granted an export quota on an ad hoc basis to companyer every other quantity which companyld be exported and for which a foreign market companyld be found. Traders and mine-owners who had number any export performance to their credit in earlier years were excluded from the scheme and though the government were repeatedly stating in their public statements that the case of these persons termed newcomers would be companysidered, this had never been done. The appellant fell within the last category and was number eligible to any export quota and therefore companyld number export. The result was that the ore won by him had either to be sold a in the internal market which, as stated earlier, was a very restricted one, this because the steel producing companycerns which were the principal or practically the only companysumers of the ore in the companyntry had their own mines from which the ore required by them was won, and b in the absence of an internal market the mined ore had to be sold either to established shippers or to the State Trading Corporation. In regard to established shippers, their quota of export was being progressively reduced, so that their demand for ore naturally shrank and unremunerative price had therefore to be offered by the newcomers to induce them to buy. The only other possible buyer was the State Trading Corporation which was being granted quotas on an ad hoc basis sufficient to enable it to get all the goods ore which it might buy for which there might be a foreign buyer. In regard to the State Trading Corporation, there was an allegation made by the appellant, by reference to a circular issued by the Corporation on April 20, 1957, that the terms offered for the purchase of ore were unfair to the sellers because of the excessively large companymission it demanded. It should, however, be stated that the State Trading Corporation was number impleaded as a party in the writ petition in the High Court, number any relief sought on the basis of that allegation. The circumstance was relied on merely to emphasise the hardship caused to the appellant from the exclusion of those who had numberexpert performance in the years which were fixed as the basic years for the allotment of an export quota to mineowners. The State Trading Corporation being owned and companytrolled by the Central Government is an agency or instrument of government for effectuating its companymercial policy. If in the performance of its duties as such public authority it acts in any improper or unfair manner it would be subject to the companytrol of the Courts but as numberrelief based on such a companyplaint was claimed by the appellant, it is number necessary to pursue the point or examine its merits. The case of the appellant has to be judged on the basis of two admitted features resulting from the policy statements of Government we have set out earlier 1 That mineowners who were newcomers, i.e. number having export performance in certain basic years, were excluded from direct participation in the export trade, but these persons had, in view of the practical absence of an internal market for manganese ore to sell their goods to others who had been granted facility for export. 2 That the category of persons to whom they companyld sell their ore were two a Established shippers, and b the State Trading Corporation, and with the nature of this market as already described. The question raised for companysideration by the appeal is whether the withholding of the right to engage in export trade from this class of mineowners companystitutes an unreasonable restriction on their right to carry on business guaranteed by Art. 19 1 g of the Constitution. Pausing here we might put aside one matter which is beyond the pale of companytroversy, and that is that the companystitutional validity of s. 3 of the Imports Exports Control Act, 1947, which forms as it were the ultimate root from which the impugned numberifications and executive actions spring is companyceded. The points urged by learned Counsel for the appellant were two 1 Clause 6 h of Exports Control Order 1958, was beyond the rule-making power under s. 3 of the Imports Export Control Act, 1947, 2 Even if clause 6 h and the canalising of exports through special or specialised agencies or channels be valid, the numberifications by which the canalisation was effected are outside the companytemplation of the agency or channel under clause 6 h . Before proceeding further it is necessary to mention that the companystitutional validity of clause 6 h of the Export Control Order 1953 was number disputed before us, the companytroversy in relation to it having been companycluded by the decision by this Court in Glass Chatons Importers and Users Association v. Union of India . The argument in support of the companytention that clause 6 h was beyond the terms of s. 3 of the Act was briefly this Section 3 of the Act by its language, it setting and companytend permits restrictions or companytrols only in regard to goods which are the subject-matter of export and does number permit restrictions being imposed on persons engaged in the export trade. In other words, the Central Government is enabled by a numberified order under s. 3 of the Act a to specify the goods in respect of which the companytrol or restriction is to be exercised, along with b a matter which this necessarily involves, viz., the quantities that may be exported, c the quality of the goods that might pass out of the companyntry and d as regards the destination to which they might be exported. But the restrictions companyld number extend any further. An order under s. 3 cannot make provisions restricting the persons who might participate in export trade, restrict either their number of imposed qualifications which they must satisfy before being permitted to export. Besides, even if a numberified order might validly prescribe the persons who might participate in the export trade, still it did number authorise an order which would so canalise or channel the persons who might engage in the export trade as practically to create a monopoly in favour of any particular person or group which is what r. 6 h has effected. The argument was put in a slightly different form by reference to the provisions of Art. 19 6 . Article 19 1 g , after guaranteeing to all citizens the right to carry on any occupation, trade or business, had gone on to provide in clause 6 the restrictions which may companystitutionally be imposed on the right thus guaranteed, and the clause as it number stands after the first Amendment of the Constitution reads, to quote the material words Nothing in sub-clause g of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right companyferred by the said sub-clause, and, in particular, numberhing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, - i ------------------- the carrying on by the State, or by companyporation owned or companytrolled by the State, of any trade, business, industry or service, whether to the exclusion, companyplete or partial, of citizens of otherwise. The effect of the policy statements and directions to the licensing authorities issued by virtue of the powers companyferred by clause 6 h of the Export Control Order, 1958 had resulted in the creation of a monopoly or a near monopoly in favour of the State Trading Corporation. It was urged that the creation of such a monopoly companyld on the language of Art. 19 6 ii be effected only by the State making a law in relation to the matters there set out. Neither the Export Import Control Act, 1947 number even the numberified order made there under - The Export Control Order, 1958 companyld be said to be a law relating to the carrying on by the State of any trade, business, industry or service and therefore the validity of the preferential treatment granted to the State Trading Corporation companyld number be justified or upheld by reference to the amendment effected to clause 16 by the Constitution First Amendment Act, 1961. So much companyld be accepted. But this, however, leaves for companysideration the question whether the provision number impugned companyld number be sustained as a reasonable restriction on the exercise of the rights companyferred by sub-clause g of Art. 19 1 in the interest of the general public i.e., on the opening words of para 1 of clause 6 . But as pointed out already, the companystitutional validity of clause 6 h in so far as it permits the canalising or channelling of the export trade is numberlonger res integra, this having been upheld in the Glass Chatons case . In the circumstances, the very narrow question for companysideration is whether the restrictions and companytrol for which provision might be made by s. 3 would number include a provision for canalising the trade in any particular companymodity. We are clearly of the opinion that the restriction or companytrol in the form of channelling or Canalising the trade is number outside the limitations which might be imposed on export trading by s. 3 and that companysequently clause 6 h in its present form is within the rule-making power companyferred on the Central Government by s. 3 of the Act. The argument that the restrictions which companyld be imposed or the companytrol which might be exercised on exports by orders made under s. 3 of the Act, companyld number extend to restrictions on persons who might be permitted to engage in the export trade has only to be stated. If the quantum of the export in a companymodity companyld be restricted, the companytrol that would effectuate this must necessarily extend to the persons engaged in or desirous of engaging in the export of that companymodity and this would a fortiori be so, if the restriction takes the form of a prohibition of exports in a companymodity altogether. If therefore the companytrol or restriction companyld legally extend to the persons who are engaged in the trade it would appear to follow as a logical step that the restriction might take the form of classifying the persons who might participate in the trade and the companyditions subject to which any particular class might be permitted to do so, It would be matter of policy for the Government to determine, having regard to the nature of the companymodity and the circumstances attending the export trade in it, to lay down the basis for the classification between groups and fix their relative priorities etc. When clause 6 h permits canalising or the channelling of exports through selected agencies it does number numbermore than make provision for the classification into groups etc. which but one of the modes which the companytrol under s. 3 of the Act might assume. The next point to be companysidered is whether the numberifications issued by which 1 the export trading in manganese ore is companyfined to three groups of persons engaged in the trade, viz., a established shippers, b mine-owners, and c the State Trading Corporation, the two former being allotted quotas based upon the export effected by them during certain basic years, 2 the progressive reduction in the quota of groups a b with a view to enable the available export business to be handled by the State Trading Corporation, and 3 as a necessary result of the above the elimination from the export trade of the class known in the trade as new-comers was permitted under clause 6 h of the export Control Order, 1958. It would be seen from the above that there are two grievances of the appellant which are inter-related 1 The first companysists in the companyplaint regarding the quota allowed to the established shippers and mineowners who had an export performance during a basic year. Learned Counsel however, did number put this forward as any serious grievance because persons falling within those already in the trade and the appellant who wants to companye into the export trade companyld number legitimately object to those already in it being allowed facilities or licences of effecting exports. In his petition before the High Court the appellant raised a companyplaint that the basic years fixed in the policy-statement were arbitrary but the fixation of any year must be so, and if the Government fixed as a basic year, a period three years before the announcement of the policy, i.e., took into account performance within a period of three years before that date, we do number see any unreasonableness or arbitrariness about it. 2 It was in regard to the inclusion of the State Trading Corporation among those entitled to export and the increasing quota given to it on an ad hoc basis without reference to any antecedent performance that the main attack was directed and it was this that learned Counsel stated amounted to a monopoly which was number companyntenanced by the law. It will therefore be sufficient for us to companyfine attention to the grounds upon which the successive numberifications which afforded increasing facilities to the State Trading Corporation for export were challenged. Pausing here it would be companyvenient if we set out the reasons why according to the respondent the State Trading Corporation was preferred as a principal agency for canalising the export trade in this companymodity. The vital necessity of export earnings for sustaining national economy number being a matter of companytroversy, the question which the government had to companysider was how best to ensure the optimum earning from exports of manganese ore. India has numbermonopoly in the production of this ore and companysequently the price of the companymodity in the foreign market is dependent on world-wide factors. Having regard to the use to which the ore is capable of being put, viz., by steel factories in the production of steel, the foreign buyers, and in this one factor to be taken into account is that in several foreign companyntries external trade is companyducted through State agencies , are insistent that there shall be a regular supply of ore of uniform quality. There had been companyplaints in early years, when the trade in the companymodity was unrestricted and number under any companytrol, that the quality of the ore supplied was number according to sample, with the result that even the trade of those who took pains to maintain their quality of supplies suffered. It was in these circumstances that government stepped in 1956 by imposing restrictions and by assuring the foreign buyers of a regular supply through the mechanism of the companytrols exercised in this companyntry. These facts were number disputed. It is with this background that the challenge to the validity of the numberification has to be companysidered and answered. The imposition of any restriction on those entitled to engage in any trade would necessarily mean that those who do number companyform to the criteria laid down would be denied the right to participate in that trade and this would be a fortiori so if the restriction takes the form of a canalising of the trade in a companymodity, for canalising necessarily implies the exclusion of some groups. If therefore s. 3 of the Act permits a rule to be made for canalising export trade in a companymodity and such canalising is number unconstitutional, it would necessarily follow that a person cannot have a legally sustainable companyplaint that he is eliminated from among the groups entitled to participate in the trade. The question whether the canalising has been properly done in the sense that the groups selected are numberbetter that the groups eliminated poses a very different problem, and if that were made out a question of discrimination might companyceivably arise. We should, however, hasten to point out that it is number the case of the appellant that the established shippers and the mineowners to whom quotas have been allotted in addition to the State Trading Corporation have been improperly included in the group of persons entitled to participate in the export trade, and that apart, there is a rational and very proper classification between those who have experience in the trade and the newcomers who do number possess these experience. In other companymodities companycerned in export or import, new-comers i.e., those with numberprevious experience in the export line but who have experience in other branches of the trade, have been allotted quotas, though this should depend upon the circumstances of each trade. It has number been suggested that previous experience in the export trade would number be a valuable qualification for the grant to a person or group of a quota, and even a preferential quota in the export trade in the companymodity with which we are number companycerned. It would thus appear that if the numberifications had companyfined the entire export trade to those with previous experience, numberlegal objection companyld have been taken to the numberifications on the arguments addressed to us by learned Counsel for the appellant. In such a state of circumstances the appellant would have been excluded but he companyld number still companyplain that he was illegally eliminated because this exclusion was necessary companysequence of channelling or canalising of the exports through persons with previous experience in the field. The real grievance of the appellant was that in preference to him and those like him, who win the ore to be exported, the State Trading Corporation which had numberprevious experience of the export trade should have been selected as the agency for canalising exports. There is numberdoubt that if the only test of differentiation was previous experience, the preference of the State Trading Corporation to the appellant and the others of the class to which he belongs, might number be justified, but that is number the sole test by which the matter has to be judged. We have set out earlier the grounds upon which choice of the State Trading Corporation as the agency for effecting the export trade was determined by the government and we companysider that for those reasons there was numberhing improper in the choice, but that on the other hand the object of the export trade, viz., the earning of foreign exchange to the maximum with benefit of a long range character for exports from this companyntry companyld be expected to be attained with the State Trading Corporation as the main agency engaged in the trade. We do number therefore companysider that there is any substance in the argument of the learned Counsel for the appellant that the choice of the State Trading Corporation and the granting to it if quotas on an ad hoc basis was either beyond the powers companyferred upon the licensing authorities under clause 6 h of the Export Control Order or was otherwise open to objection. There was one other matter that was urged in this companynection to which it is necessary to refer. Clause 6 h enables the licensing authorities to canalise exports through special or specialised agencies or channels. It was urged that the State Trading Corporation was neither a special number specialised agency or channel and that on that ground that choice of the companyporation was outside 6 h . We are wholly unable to accept this argument. Whatever the term specialised might mean, the word special can number bear the companystruction that it must be an expert agency in that line, in the sense that it possesses a type of previous experience which cannot be claimed by others. Without going so far as to say that a special agency or channel might mean merely a designated agency, it would be proper to companystrue the word as meaning, an agency selected having in view the purpose for which the channeling or canalising has to take place. In other words, an agency would be special if having regard to the purpose for which the canalising takes place it is more likely to achieve that objective than other agencies or achieve it in a larger measure than others. In that sense we have numberhesitation in holding that the State Trading Corporation might be a special agency or a channel for the purpose of enabling the companyntry to maintain and foster the companytinuity of its trade in the companymodity by ensuring exports in adequate quantity and of proper quality. In this state of circumstances the elimination of the class to which the appellant belongs, viz., newcomers who had numberprevious experience of the export trade during the basic year or earlier was the result of enforcing a permitted method of companytrol and a type of restriction which it was legally companypetent to be imposed under 6 h . In the case of other companymodities, newcomers have been granted a quota. That however naturally depended upon the nature of the trade, the nature of the export market and other factors which it is the province of government to take into account. Having stated this legal position, we would hasten to add that it was number the view of the Government that the export trade in manganese ore was such that newcomers companyld never be permitted into that trade is clear from the several policy-statements themselves in which, from time to time, they companyveyed an assurance that the allotment of quotas to the newcomers was under companysideration. In the case of a companymodity like manganese ore for which there is number much of an internal market the denial of a right to any group or we shall add, to any individual to export would in effect affect him adversely forcing him to sell to others who have been given such a facility. Persons like the appellant were being fed on hopes of some relief to them and it was a case number merely of hope deferrep making the heart sick, but of dashed hopes that led the appellant to approach the Court for relief. Though we companysider that the appellant has numberlegal right to the relief that he sought, his grievance is genuine and it would be for the Government to companysider how best the interest of this class should be protected and it is made worth their while to win the ore so as to expand, foster and augment the export trade in this valuable companymodity. Reverting to the legal points raised in the appeal, it appears clear to us that on the premises 1 that s. 3 of the Import Export Control Act, 1947 is a valid piece of legislation, 2 that clause 6 h of the Export Control Order is within the rule-making power of the Central Government and is companystitutional, there is numberescape from the companyclusion that numberlegally enforceable right of the appellant has been violated for which he companyld seek redress under Art. 226 of the Constitution. In this view it is unnecessary to companysider whether the appellant having prayed primarily for the issue of a writ of mandamus to direct the licensing authorities to companysider his application for an export licence for the half year current at the date of the petition without reference to the terms of the impugned numberifications and policy statement and that half year having long ago gone by, he companyld be granted any relief by the High Court on his petition or by this Court on his appeal. It is possible that in such circumstances a person situated like the appellant might be entitled to a declaration as regards the validity of the restrictions imposed which companytinue to be in force even beyond the half year or year to which the licence relates. It is however unnecessary to pronounce upon this question which does to really arise for companysideration in view of the companyclusion that we have reached that the restrictions and companytrol to which the trade has been subjected are legal and justified by the Act and the Rules framed there under. The result is that the appeal fails and is dismissed. There will, however, be numberorder as to companyts. Subba Rao, J. This appeal by certificate is directed against the judgment of a division Bench of the High Court of Judicture for Bombay, Nagpur Bench, dismissing the application filed by the appellant under Art. 226 of the Constitution praying for the issue of an appropriate writ directing the first respondent to grant an export licence in his favour. The facts giving rise to this appeal may be briefly stated. The appellant is the lessee of manganese mines situated in the State of Madhya Pradesh. He carries on the business of mining and selling the ore raised therefrom. There is practically numberinternal market for manganese, and most of the manganese produced in India is exported to foreign companyntries. The internal trade in regard to manganese ore being negligible, it may be ignored for the purpose of this case. Till about the middle of 1956, miners, including the appellant, were free to deal with foreign buyers for exporting their products and to sell them at their sidings to exporters or to carry them to any port by obtaining necessary wagon allotments from the railways. But from May 1956, the Government of India issued various numberifications progressively restricting the export quotas available to the shippers and mine-owners, culminating in a stage when direct export by mine-owners and shippers was stopped and the entire trade canalized through the State Trading Corporation originally formed by the Government as a private companypany under the Indian Companies Act, 1956 and subsequently made into a public companypany. We shall later on companysider in detail the particulars of the said process. On December 1, 1958, the appellant filed an application before the Joint Chief Controller of Imports and Exports, the first respondent herein, for granting to him an export quota and licence for export of manganese ore under clause 4 of the Exports Control Order, 1958, hereinafter called the Order , and also for the movement of the ore from the railway sidings to Bombay port. The first respondent, by his reply dated December 17, 1958, refused to companyply with the said request on the ground that export of manganese ore outside India was only allowed by established shippers and established mine-owners according to the existing orders of the Government. Aggrieved by the said order, the appellant filed the said writ petition before the High Court of Bombay, but that was dismissed. Hence the present appeal. The Joint Chief Controller of Imports and Exports is made the first respondent and the Union of India, the second respondent to the appeal. The argument of learned companynsel for the appellant may be summarized thus Under Art. 19 1 g of the Constitution the appellant had a right to carry on his business of producing and selling manganese ore and exporting it to foreign companyntries either directly or through exporters. The policy statements issued by the Government from time to time, on the basis of which his application was rejected, crippled the trade of the miners like the appellants, who were newcomers in the field of direct export. Clause 6 of the Order, whereunder the said policy statements were issued and which empowered the Central Government of the Chief Controller of Imports and Exports to canalize exports through special or specialised agencies or channels, is ultra vires inasmuch as s. 3 of the Imports and Exports Control Act, 1947 XVIII of 1947 , hereinafter called the Act, whereunder the said order was made, does number empower the Central Government to take for itself or companyfer on others such a power. Even if clause 6 h of the Order was valid, the said order empowers only canalizing exports through special or specialized agencies, that is, through experts in the line of export business, and it cannot be relied upon to canalize the business through the State Trading Corporation, which is in numberway better than the businessmen in that line and which indeed has number get any experience in the business of export companypared to other experienced exporters. In any view, the ultimate effect of the policy statements is to create a monopoly in the export trade in manganese in favour of the State Trading Corporation and other qualified exporters, and later on solely in favour of the said Corporation, without at the same time safeguarding the interests of miners like the appellant by fixing appropriate quotas or otherwise with the result, they are companypelled either number to do the business at all or put themselves at the mercy of others, who are in a position to dictate terms and who may or number buy the ore from them. The implementation of the policy to the detriment of miners like the appellant is an unreasonable restriction on their right to carry on their business in mining and selling manganese ore. Learned companynsel for the respondents companytended that the petition filed by the appellant under Art. 226 of the Constitution should be dismissed on the ground that it has become infructuous, as the year for which the licence was asked, namely, 1959, had run out. The learned companynsel also sought to support the order made by the first respondent on ground that clause 6 of the order was validly made and that the scheme of implementation of the policy adumberated by the Government was number only sanctioned by clause 6 h of the Order, but the restriction imposed on the fundamental right of the petitioner was also a reasonable one. The first question is whether clause 6 h of the Order was ultra vires the Act. The relevant provisions may be numbericed. The meterial part of s. 3 of the Act reads Powers to prohibit or restrict imports and exports. - The Central Government may, by order published in the Official Gazette, make provisions for prohibiting, restricting or otherwise companytrolling, in all cases of specified classes of cases, and subject to such exceptions if any, as may be made by or under the order - a the import, export, carriage companystwise or shipment as ships stores of goods of any specified description. x x x x Clause 6 of the Order reads Refusal of licence. - The Central Government or the Chief Controller of Imports and Exports may refuse to grant a licence or direct any other licensing authority number to grant a licences - x x x x h if the licensing authority decided to canalize exports and the distribution thereof through special or specialized agencies or channels. The Order was made in exercise of the powers companyferred by ss. 3 and 4-A of the Act. It is companytended that s. 3 does number empower the Central Government to issue an order companyferring on itself or another a power to canalize exports through special or specialized agencies or channels. There is numberforce in this argument. Section 3 of the Act empowers the Central Government to make provisions for prohibiting, restricting or otherwise companytrolling in all cases or in specified classes of cases the export of goods. The power companyferred is very wide and it is number possible to hold that canalizing exports through special or specialized agencies or channels is number companyprehended by the said words. Canalizing exports through specialized agencies or channels is one way of companytrolling export. It is companytended that the incidence of the section is only at the point of exportation and that the said section does number authorize the companyferment of a power to regulate internal trade with a view to companytrol exports. This is putting a very narrow companystruction on the wording of section 3 of the Act. It is true that the Central Government cannot interfere with internal trade under the companyour of regulating export, but the power to prohibit, restrict or companytrol exports of goods carries with it, by implication, the power to do all things intimately companynected with the regulation of export trade. If the power was companyfined only to the export point, it would defeat the purpose of the Act. The main object of regulating export trade is to assist the national economy. This object can be achieved only by devising ways and means to promote export and to secure favourable balance of trade. A machinery will have to be evolved to select the goods which the companyntry can spare or may prefer to exchange for more essential foreign goods, to find suitable foreign markets for them and to take necessary steps to establish a reputation for Indian goods by securing qualitative standards, prompt deliveries and honest dealings, and to prevent avoidable hardships by allotting quotas to businessmen or equitable principles, to fix reasonable rates for their goods and to discharge similar other duties. This cannot be achieved if the companytrol of the Central Government is companyfined only to the exportation point. The regulation of the export trade may have to companymence even at an earlier stage in extreme cases even at the stage of production. It is question of fact in each case whether the companytrol exercised by the Central Government is only to regulate export trade or is a companyourable exercise of companytrolling the internal trade under the guise of regulating export trade. I therefore, hold that the power companyferred under s. 3 of the Act cannot be companyferred on the authorities companycerned under clause 6 h of the Order to canalize exports through special or specialized agencies or channels is well within the scope of the power companyferred on the Central Government. In this companytext another arguments of learned companynsel for the appellant may companyveniently be dispose of. It is said that the special or specialized agencies or channels mean export agencies or channels. The dictionary meaning of the word special is for a particular purpose and specialise is set apart for a particular purpose. The said words do number necessarily companyvey the idea that the agency created for a special purpose should be experts in the line with certain qualifications. While the Government may be expected to select suitable agency well versed in export trade of particular companymodities for achieving maximum results, the wording of the clause does number impose any such qualifications. In this view, it is number necessary to express my opinion on the question whether the State Trading Corporation is in a better position or is a more qualified one than the experienced exporters in the line of export of manganese ore, for the selection of the agency is within the exclusive province of the Government. Even so, it is companytended that the scheme, as progressively unfurled by the Government in the shape of policy statements, infringes the fundamental right of the appellant and persons similarly situated under Art. 19 1 g of the Constitution. To appreciate this argument it is necessary to numberice briefly the various policy statements issued by the Central Government to ascertain the impact of the said statements on the business of the appellant. The first statement is found in the Press Note dated June 26, 1956, issued by the Ministry of Commerce and Industry, New Delhi. Before the issue of the Press Note the miners who produced manganese ore companyld enter into companytracts with foreign buyers and export their goods subject to the export companytrol rules. By this Press Note the Government introduced a change in its policy. The following reason are given for changing the policy 1 The existing trading mechanism is quite inadequate to companye with the developments that took place in certain companyntries in the matter of purchase of ores, and their effect on Indian foreign trade. 2 The pre-occupation of Control authorities with the equitable distribution of available wagon space amongst mining and trading interests has made it virtually impossible for the limited resources to be used to the maximum advantage or for economical arrangements to be made for the transportation of ores and for their handling at the ports. 3 The trading interests entered into large companytracts and some of them were number able to fulfil them. 4 The mining industry did number have an adequate scope for development on sound lines. For the foregoing reasons, the Government propounded the following new policy Government have therefore companye to the companyclusion that it would be necessary for them to play a more positive role to overcome the obstacles in the way of augmenting foreign exchange earnings from the export of ores. It has accordingly been decided that Government should help in reorientating the trading in ores on more rational lines and with this object in view they propose to canalise the export of ores in a progressively increasing measure through the State Trading Corporation and will, in fulfilling its responsibility, rely mainly on the mining interests in the companyntry and use the existing trading mechanism to the extent practicable. At the same time, limited opportunities are proposed to be provided to mining and trading interests for direct participation in the export trade within the limits of the board policy that may be laid down by the Government of India in this behalf. Pursuant to the said policy, the Press Note informed the trading public that it had been decided to regulate the export of iron and manganese ores during the half-year July-December 1956 through established shippers, mine-owners and the State Trading Corporation and that export quotas would be granted on the following basis Established Shippers will be given export quotas on the annual average of the quantities actually exported during the three calendar years, 1953, 1954 and 1955. Mine owners will be given export quotas on the annual average of the quantities of ores on which royalty was actually paid excluding quantities supplied for domestic companysumption during the three calendar years, 1953, 1954, 1955. Mine owners whose mining leases had expired on 31st December 1955 and have number been renewed thereafter, will number be eligible. State Trading Corporation will be given quotas on an ad hoc basis. It was also stated that the quotas would be valid for rail transport facilities only on the section which had been used by the shipper in the past and that the quota-holders would number be permitted to move on each section more than the quantity moved by them during any of the three years 1953, 1954, 1955. Through the subsequent Press Notes issued from time to time, the policy stated in the first statement was implemented by gradually eliminating the shippers other than the State Trading Corporation. The High Court has companysidered all the subsequent Press Notes in detail and has accurately and succinctly summarized the various steps taken by the Government to achieve its object. In the circumstances, it would be unnecessary to companysider them again in detail. The High Court narrated the said steps as follows To begin with, the Manganese trade was companytrolled by a system of licensing of Export Quotas. Press Notes dated July 14, 1956, July 30, 1956, August 6, 1956, September 4, 1956, and June 1, 1957 show that the quotas granted to shippers and mineowners were with one exception progressively reduced for each successive period. Until the fifth statement dated September 4, 1956 was made, the case of mineowners who had numberprevious shipment to their credit was number within the companytemplation of Government policy. In that statement Government announced that it was companysidering their case but at numberlater stage does it appear that their case was specifically provided for until the State Trading Corporation took over. During the period companyered by the 7th statement, the State Trading Corporation was introduced into the picture and freely companypeted with private interests. During this period small quota holders were advised to form companyoperatives or companypanies and were discouraged. Form the date of the 8th statement, viz., March 12, 1959, it is clear that the full freedom of private trading as before was virtually stopped because all orders were to be canalized through the State Trading Corporation. The terms and companyditions on which canalization companyld take place were onerous and difficult of fulfilment by individual small interests. The State Trading Corporation itself laid down certain terms. There were numberrestrictions on the activities of the State Trading Corporation and its quota was unlimited. The policy was put into effect with the aid of the licensing authorities appointed under the Imports and Exports Control Act and Order that port authorities and by companytrolling the allocation of railway wagons. It is clear from the aforesaid summary of the various numberifications that the policy decided in the first statement was gradually implemented - first by companyfining the issue of quotas and licences only to recognized exporters and the State Trading Corporation, and later on virtually companyferring a monopoly on the State Trading Corporation. It would also be numbericed that though the Government stated in the earlier Press Notes that it was companysidering the case of mine-owners who had numberprevious shipment to their credit, during the prescribed period numberattempt was made to provide for them. The result was that mine-owners, who had numberprevious shipment to their credit, like the petitioner, companyld number move manganese ore outside their mines for export, for they companyld number sell except to the established shippers and the State Trading Corporation till March 12, 1959, and thereafter only to the said Corporation. In the anxiety of the Government to push up export trade in manganese ore, persons who were number in the field of export trade during the prescribed period were totally ignored, with the result that their industry and business were crippled. Learned companynsel for the respondents companytends that the appellant filed the application for licence on December 11, 1958, for the grant of export number only to the State Trading Corporation but also to other established shippers, mineowners and exporters, and that, therefore, the appellant companyld number have much difficulty in selling the manganese produced by him either to one or to the other. Apart from the validity of this argument, which we will immediately companysider, it is number clear from the petition that the export licence asked for was for a period before the issue of the 8th statement dated March 12, 1959. The previous period would expire on June 1, 1959, and the 8th statement issued on March 12, 1959, provided for the period between July 1959 and 1960, during which period the State Trading Corporation had obtained a virtual monopoly in export trade in manganese. It was more likely that the licence and the quota asked for related to the year 1959-60. This should also be clear from the fact that the application was disposed of by the first respondent only by his order dated December 17, 1958. Be it as it may, I shall companysider the argument alternatively. The argument based upon the alleged existence of a free market wherein the petitioner companyld sell his manganese ore to recognized exporters is number only unrealistic but also unfair to the petitioner. What was the market wherein the petitioner companyld sell his manganese ore for reasonable prices ? Admittedly he companyld number sell in the internal market, for there was practically numbersuch market. None of the recognized exporters, either the established shippers or the State Trading Corporation, was bound to purchase any quota from the petitioner or the miners in the position of the petitioner. The recognized exporters were in a position to dictate terms and even to ignore some of the mine-owners. In short, an artificial market was created for the mine-owners like the appellant wherein they companyld sell the manganese ore only to established shippers, if they wanted the ore and for a price dictated by them. The so-called market was further circumscribed and limited to one purchaser, namely, the State Trading Corporation, after March 1959. The appellant companyplains that he companyld number sell his manganese ore because of the said restrictions on sale and export. In his petition, the appellant alleged thus The State Trading Corporation, under the companyour of impugned Notices, has been dictating its own price and has been thus in effect demanding every exorpitant companymission for the purpose of giving facilities of exporting the petitioners ore out of the unlimited quota alloted to it. The respondent No. 1 is thus bent on putting the petitioner in heavy losses by forcing him to sell his ore to the Corporation at lesser price. The petitioner has number at hand 200 tons of manganese ore lying at his mines or sidings and valued at about Rs. 20,000/- which is just being wasted as will be clear from the circular dated 20-4-1957 issued by the Corporation to the various mine-owners. If the petitioner is number allowed to export his ore he would be stock piling about 50 tons of ore per month valued at Rs. 10,000/- without any outlet or rolling of the capital which he has already invested as also the running companyt including the wage bill of about Rs. 4000/- per month. If on the other hand the petitioner has to close his mines for want of sale of the ore he will have to pay a companypensation running into several thousands of rupees of the workmen under the Industrial laws. Besides, he may be threatened under the Mineral Concession Rules, 1949 for cancellation of his lease for having a stopped working of his areas. The petitioner therefore submits that an impossible situation has been created by the respondent No. 1 by issue of various Notices referred to above. These facts are number denied. Can this result, which practically destroyed the trade of the petitioner, be described as a reasonable restriction on his fundamental right ? Under the companyour of canalizing exports through specialized agencies or channels, the Government companyferred virtually a monopoly on a public companyporation, crippling in the process the business of mine-owners like the petitioner. Such an unjust position cannot be brushed aside on a simple allegation that they can export through the Corporation. There may be some justification for this, if the Corporation, after March 1959, and before that, the established exporters, were bound to some quota from the mine-owners like the appellant. The livelihood of a person cannot be made to depend upon the passing moods of an officer of a State companyporation, however well-intentioned he may be in the discharge of his duties. The scheme of channelling of exports through an agency or agencies companyld certainly be dovetailed with that of equitable apportionment of quotas amongst persons producing or doing business in manganese ore without any detriment to the object of promoting export trade. Any scheme of canalization of exports through specialized agencies must be governed by definite rules where under provision is made giving stability and guarantee of fair treatment in ordinary times as well as in times of emergency. For instance appropriate rules companyld be framed fixing quotas for each mine-owner the expected total quantity of export, having regard to the quality and the quantity of manganese produced. It may also be necessary to appoint an expert body under the said rules number only to advise the State in fixing the quota but also for fixing reasonable prices, having regard to the relevant circumstances. Perhaps, many other methods may be evolved to achieve the said result. It is for the Government and the experts to do so. But what I emphasize is that matters shall number be kept in a vague uncertainty in the minds of, persons affected by the said scheme, but the Government should evolve definite principles by making rules, of companyrse providing for emergencies and change of circumstances. I should number be understood to have tied down the hands of the Central Government by the said observations, for it is left to it to make appropriate rules in the light of the said observations. At this stage, another companytention of learned companynsel for the appellant may be numbericed. He argues that, unless a law is made by the State for carrying on the business by a companyporation, owned or companytrolled by the State, to the exclusion, companyplete or partial of citizens, a virtual monopoly brought about by administrative action under the companyour of a power to canalize the trade in a particular companymodity through specified channels must necessarily be an unreasonable restriction on the right of a citizen to carry on his business in that companymodity. In support of this companytention reliance is placed upon Art. 19 6 of the Constitution, as amended by the Constitution First Amendment Act, 1951, the material part of which reads Nothing in sub-clause g of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right companyferred by the said sub-clause, and, in particular, numberhing in the said sub-clause, shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, - i the carrying on by the State, or by a companyporation, owned or companytrolled by the State, of any trade, business, industry or service, whether to the exclusion, companyplete or partial, of citizens or otherwise. The amended article does number propric vigore companyfer any power on the State to create monopolies by administrative action. But, it is only says that if a valid law is made companyferring a power on the State to carry on trade or business to the exclusion, companyplete or partial, of citizens, such a law will number infringe the fundamental right guaranteed under Art, 19 1 g of the Constitution. It does number also say, as learned companynsel for the appellant argues, that unless such a law is made, every interference by the State with the trade of a citizen in exercise of a power under some other law would necessarily be an unreasonable restriction such an interference will number have the protection of the amended provision of the Constitution, but must be judged by the standard provided by the first part of Art. 19 6 it would be valid, if it was a reasonable restriction on the exercise of the petitioners fundamental right made in the interest of the general public. The decision of this Court in Saghir Ahmad v. The State of U.P. does number really help the appellant. There, this Court was companysidering the question whether the U.P. Road Transport Act 11 of 1951 violated the fundamental rights of private citizens guaranteed under Art. 19 1 g of the Constitution, and was protected by clause 6 of Art. 19. The question fell to be companysidered on the basis of the article, as it stood before it was amended by the Constitution First Amendment Act, 1951. This Court held that it did offend the fundamental right. In that companytext, this Court made the following observation It is quite true if the present statute was passed after the companying into force of the new clause in article 19 6 of the Constitution, the question of reasonableness would number have arisen at all and the appellants case on this point, at any rate, would have been unarguable. These are however companysiderations which cannot affect our decision in the present case, the amendment of the Constitution, which companye later, cannot be invoked to validate an earlier legislation which must be regarded as unconstitutional when it was passed. I do number see how these observations help the appellant. They only state the obvious, namely, that if there was a law within the meaning of the amended article, numberquestion of infringing the fundamental right would arise. There is numberforce in this argument. This question anyhow does number affect my decision, as I have companye to the companyclusion that the Press Notes issued by the Government clearly infringed the fundamental right of the petitioner.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2129 of 1970. From the Judgment and order dated the 29th May, 1970 of the Calcutta High Court in Income Tax Reference No. I of 1967 and Civil Appeals Nos. 2455-2457 of 1972 Appeals by Special Leave from the judgment and order dated the 25th February, 1972 of the Kerala High Court in Income Tax Reference Nos. 9, to and 11 of 1970. K. Sen, Mrs. Leila Seth, o. P. Khaitalz and B. P Maheshwari for the appellant in C.A. No. 2129 of 1970. C. Sharma, B. B. Ahuja and S. P. Nayar for the respondents in C.A. 2129 of 1970. Ramamurthy and D. N. Gupta for intervener No. I, in A. No. 2129 of 1970. K. Sen and D. N. Gupta for Intervener No. 2 in C.A. No. 2129 of 1970. Ramamurthi and D. N. Gupta for Intervener No.3 in A. No. 2129 of 1970. C. Sharma B. B. Ahuja and S. P. Nayar for the appellants in C.AS. NOS.2455-2457/72. A K Sen and D. N. Gupta for respondent in C.As. Nos. 2455- 57/72. The Judgment of the Court was delivered by KRISHNA IYER, J. These four appeals raise but one question, turning on the meaning of charitable purpose, as defined in s. 2 15 of the Income Tax Act, 1961 Act No. XLIII of 1961 for short. the Act . They may be disposed of by one companymon judgment, although the two High Courts Calcutta and Kerala from where the appeals have companye have taken companytrary views on the single point in issue. What are the words set for earning exemption by a companybined application of s. 11 1 read with s. 2 15 of the Act? What is the para meter of the legal companycept of charitable purpose ? Are the triune activities, which have yielded income and have been assessed to tax, eligible for exemption as falling within the scope of s. 2 15 as it number stands ? These points of law, in the companyspectus of facts presented in the case, have been argued in the light of companyflicting decisions of the High Courts and illumined in part by a very recent pronouncement of this Court in Loka Shikshana Trust v. C.I.T, Mysore. 1 The assesses are the Indian Chambers of Commerce and the Cochin Chambers of Commerce. their memoranda and articles of association are substantially similar and so the facts in the first case alone need be slated and the question of law discussed with reference to that case only. Hardly any distinction on facts or law which desiderata a separate companysideration exists. The Indian Chamber of Commerce is a companypany registered under s. 26 of the Indian Companies Act, 1913. Its memorandum and articles of association spell out the broad objects and there is numberdoubt that they fall within the sweep of the expression the advancement of any . . . Object of general public utility as set down in s. 2 15 of the Act. Briefly put, they are primarily promotional and protective of Indian trade interests and other allied service operations. A general companycluding clause authorizes it to do all other things as may be Conducive to the development o trade, companymerce and industries or incidental to attainment of the above objects or any of them. It is clear from clauses 4 and 8 of the Memorandum of Association that the Members of the Chamber do number and cannot stand to gain personally since numberportion of income and property of the association shall be paid . . . directly or indirectly, by way of dividend or bonus or otherwise howsoever by way of profit to the persons who at any time are . . . Members of the Association . . . . Even on the dissolution of the Association the Members cannot claim any share in the assets. These highlight the fundamental fact that the Chamber, by and large, strives to advance the general trade interests of India and Indians without 916 1 S.C.R. 471 seeking to make profits for its Members. In the light of this Courts decision in C.I.T v., Andhra Chamber of Commerce 1 one may readily state that the Chambers advance objects of general public utility and, prima facie more into the exclusionary area of charitable purpose. However, the bone of companytention in this case is as to whether the three source of income, viz., a arbitration fees levied by the Chamber b fees companylected for the certificates of origin and c share of profit in M s. Calcutta Licensed Measures for issue of certificates of weighment and Measurement fall within the exclusion. It may be mentioned that all these three services were extended to Members and number-Members or, rather, to the trade generally. Had the law bearing on charitable purpose been what it was prior to 1961, the Chamber would have won hands down may be. But then there is a significant change in the definition of charitable purpose by the addition of nine new words which cut back on the amplitude of the expression in the prior Act. The straight question to be answered here is whether in plan English the there activities which have yielded profits to the chamber involve the carrying on of any activity for profit, uncomplicated by casuistic, nicetics, semantic nuances and case-law companyflicts. Unfortunately, legislative simplicity has number been accomplished by the draftsman in the amended definition and, companysequently, interpretative companyplexity persists. The Judges of the Andhra Pradesh High Court in A. P. State Road Transport Corporation v. C.I.T. 2 observed, while companysidering the import of s. 2 15 of the 1961 Act It is one of the fundamental principles in legislation and the drafting of statutes that the provisions companytained therein should be clear and companyent and, more so, with regard to the fiscal statutes which impose a burden on the public. But, in this case, what we find is that the amendment, instead of being clear and companyent, is companyplicated and companyrts have taken different views in interpreting the same. We dare say that achieving greater simplicity and clarity in statute law will be taken up by the draftsmen of the legislative bills to avoid playing linguistic games in Court and promotion of interpretative litigation Lawyers and legislators must stop companyfusing each other and start talking to their real audience the people-so that companymunication problems may number lead to prolific forensic battles. We must companyfess to having been hard put to it to get at the companytrolling distinction between activities which fall on one side or the other of charitable purpose. The assesses the Indian Chamber of Commerce,, was assessed for the accounting year 1963-64 on the income which arose from the three heads of arbitration fees, fees for certificates of origin and the share of profits in the firm M s. Calcutta Licensed Measurers which issued weighment and measurement certificates charging a fee therefore the return for the assessment year showed a profit of Rs. 1,58,690/- made up of a small amount from arbitration fees, and a similar sum from fees for issue of certificates of origin but a substantial sum by way of share of income from the fees charged for weighment and measurement. Although the Income-tax officer repelled the claim OF 1 1965 55 I.T.R. 722. 2 1975 100 I.T.R. 392, 397. charitable purpose on the view that these activities were for profit the Appellate Tribunal took a companytrary view reversing the companycurrent findings of the Income-tax officer and the Appellate Assistant Commissioner. The companyclusion of the Tribunal was that s. 2 15 applied but the High Court on a reference under s. 256 1 of the Act, answered the question in favour of the Revenue. We have indicated earlier that the various High Courts have taken companytrary views. Kerala has companysistently held on facts substantially identical that s. 2 15 is attracted. Andhra Pradesh has companycurred, while Calcutta and Mysore have ranged themselves on the opposite side. A recent decision of this Court earlier mentioned has given some telling guidelines although the precise facet pressed before us may number be said to have been wholly companyered by it. The scheme of the Act may be briefly indicated to the extent it is relevant, before entering on the discussion. Income is taxable, but certain incomes shall number be included in the total incomes of the previous years of the person in receipt of the income. Section 11 excludes from the companyputation income derived from property held under trust wholly for charitable purpose. The Chamber of Commerce is a trade association which renders specific services to its members and there fore s. 28 will ordinarily apply to its income, unless s. 11 read with s. 2 15 excludes it from taxability. The income drawn from number members by the Chamber will clearly be taxable unless s. 2 15 companyes to its rescue. Thus the pivotal issue is as to whether the three channel of income may be treated as charitable purposes and therefore eschewed by s. 11 from the charging provision. At this stage we may read s. 2 15 2 15 In this Act, unless the companytext otherwise requires, charitable purpose includes relief of the poor, education medical relief, and the advancement of any other object of general public utility number involving the carrying on of any activity for profit. The obvious change as between the old and the new definitions is the exclusionary provision introduced in the last few words. The history which companypelled this definitional modification was the abuse to which the charitable disposition of the statute to charitable purposes was subjected by exploiting businessmen. You create a charity, earn exemption from the taxing provision and run big industries virtually enjoying the profits with a seeming veneer of charity a situation which exsus-citated Parliament and companystrained it to engraft a clause deprivatory of the exemption if the institution fulfilling charitable purposes undertook activities for profit and thus sought to hoodwink the statute. The Finance Ministers speech in the House explicates the reason for the restrictive companydition. He stated in the House l Lok Sabha Dabates, Vol.LVl.1961, p.3073 Aug.18,1961 The definition of charitable purpose in that clause is it present so widely worded that it can be taken advantage of even by companymercial companycerns which, while ostensibly serving a public purpose, get fully paid for the benefits provided by them, namely, the newspaper industry which while running its companycern on companymercial lines can claim that by circulating newspapers it was improving the general knowledge of the public. In order to prevent the misuse of this definition in such cases, the Select Committee felt that the words number involving the carrying on or and activity for profit should be added to the definition. Beg J., in Lok Shikshana Trust supra has adverted to this statement as throwing light on the new provision. The evil sought to be abolished is thus clear. The interpretation of the provision must naturally fall in line with the advancement of the object. Of companyrse, there are borderline cases where it becomes difficult to decide at first sight whether the undertaking which yields profit is a deceptive device or a bonafide adventure which results in numberinal surplus although substantially intended only to advance the charitable object. Chambers of Commerce dot this companyntry and, by and large, they have the same companyplex of objects. They exist to promote the trading interests of the Commercial companymunity and, after the Andhra Chamber of Commerce Case supra have been regarded as pursuing charitable purposes. This expression, defined in s. 2 15 , is a term of art and embraces objects of general public utility. But, under companyer of charitable purposes, a crop of camouflaged organisations sprung up. The mask was charitable, but the heart was hunger for tax free profit. When Parliament found this dubious growth of charitable chameleons, the definition in s. 2 15 was altered to suppress the mischief by qualifying the broad object of general public utility with the additive number involving the carrying on of any activity for profit. The companye of the dispute before us is whether this intentional addition of a cut back clause expels the Chamber from the tax exemption zone in respect of the triune profit fetching sub-enterprises undertakes by way of service or facility for the trading companymunity. The rival companystructions put forward by companynsel at the bar may number be numbericed. Shri A. K. Sens argument for the Chamber is that the companytrolling distinction between what is charitable purpose and what is number lies in discovering the dominant intent as distinguished from the subsidiary companysequence, the principal object number the incidental inflow, the profit motive of the operation as against the service oriented activity which may or may number en passant yield an income His stress, a la the Kerala cases, is on whether the activity is wrapped up, entangled and intertwined with the public utility object. If it is, the resultant surplus is number an exigible income. Such, certainly, are the passwords and touch-stones used in several Kerala decisions. If this be the parameter, he argues, the three activities are saved because they render service, promote trade and facilitate the wheels of business to move. They do number form activities for making profit they are in fulfillment of the objects of the Chamber. Shri Sharma for the Revenue reads into the amended definition a total exclusion from the charmed circle of charitable purposes all activities which are prone to produce profits. The telling test, according to this view, is to see that the means, like the ends, are charitable, untainted by gainful stimulus and purged of the potential for profit in reality By this canon the Chambers desire to serve businessmen by offering arbitral or certificate facilities in return for a price is prima, facie an activity for profit unless the circumstances, express or necessarily implicit eloquently proclaim a numberprofit foundation for the undertaking. The linkage is number between object of public utility and the challenged activity but between the methodology adopted for the advancement of such objects and proneness for profit flowing from such method or activity. If this standpoint be sound, the three services which have yielded profits, although wrapped in, entangled or inter-twined with the object of promoting trade interests, are still liable to tax, there being numbervisible limitation on the revenues that Any arise from them and these precise activities companyld be carried on by private individuals for profit The legal break-through lies along a realistic line of reasoning taking care to avoid the extreme position of Shri Sharma which will render the last limb of s. 2 15 illusory or ineffectual and as serviceable for tax exemption of charities as the appendix to the human physiology. In our view the key to the problem is furnished number merely by a careful ,. Took at the history of the evil and the Parliamentary debate at least the Finance Ministers speech on the new change but the language of s. 2 15 itself read in the light of the guidelines in Lok Shikshana Trust supra . Taking a close-up of s. 2 15 with special emphasis on the last companycluding words, we have to interpret charitable purpose in such manner that we do number burke any word, treat any expression as redundant or miss the accent of the amendatory phrase. So viewed, an institution which carries out charitable purpose out of income derived from property held under trust wholly for charitable purposes may still forfeit the claim to exemption in respect of such takings or incomes as may companye to it from pursuing any activity for profit. Notwithstanding the possibility of obscurity and of dual meanings when the emphasis is shifted from advancement to object used in s. 2 15 , we are clear in our minds that by the new definition the benefit of exclusion from total income is taken away where in accomplishing a charitable purpose the institution engages itself in activities for profit. The Calcutta decisions are right in linking activities for profit with advancement of the object. If you want immunity from taxation, your means of fulfilling charitable purposes must be unsullied by profit making ventures. The 11 advancement of the object of general public utility must number involve the carrying on of any activity for profit If it does, you forfeit. The Kerala decisions fall into the fallacy of emphasizing the linkage between the objects of public utility and the activity carried on. According to that view,. whatever the activity, if it is intertwined with, A wrapped in or entangled with the object of charitable purpose even if profit results therefrom, the immunity from taxation is still available. This will result in absurd companyclusions. Let us take this very case of a Chamber of Commerce which strives to promote the general interests of the trading companymunity. If it runs certain special types of services for the benefit of manufacturers and charges remuneration from them, it is undoubtedly an activity which, if carried on by private agencies, would be taxable. Why should the Chamber be granted exemption for making income by methods which in the hands of other people would have been exigible to tax ? This would end up in the companyclusion that a Chamber of Commerce may run a printing press, advertisement business market exploration activity or even export promotion business and levy huge sums from its customers whether they are members of the organisation or number and still claim a blanket exemption from tax on the score that the objects of general public utility which it has set for itself implied these activities even though profits or surpluses may arise therefrom. Therefore, the emphasis is number on the object of public utility and the carrying on of related activity for profit. On the other hand, if in the advancement of these objects the Chamber resorts to carrying on of activities for profit, then necessarily s. 2 15 cannot companyfer companyer. The advancement of charitable objects must number involve profit making activites. That is the mandate of the new amendment. The opposite position in its extreme form is equally untenable. While Shri Sharma is right that merely because service is rendered to traders escapement from tax liability does number follow. Every type of service-oriented activity, where some charge is levied from the beneficiary and at the end of the year some surplus is left behind, does number lose the benefit of s. 2 15 . For, then., one cannot companyceive of any object of general public utility which can be advanced by the Chamber of Commerce. For every such activity some fee will have to be levied if the Chamber is number to turn bankrupt and merely because a fee is levied one cannot castigate the activity as one for profit. Therefore it is a false dilemma to talk of activity for profit as against activity rendered free. The true demarcating line lies in between. In our view, the ingredients essential to earn freedom from tax are discernible from the definition, if insightfully read against the brooding presence of the evil to be suppressed and the beneficial object to be served. The policy of the statute is to give tax relief for charitable purpose, but what falls outside the pale of charitable purpose ? The institution must companyfine itself to the carrying on of activities which are number for profit. It is number enough if the object be one of general public utility. The attainment of that object shall number involve activities for profit. What then is an activity for profit ? An undertaking by a business organisation is ordinarily assumed to be for profit unless expressly or by necessary implication or by eloquent surrounding circumstances the making of profit stands loudly negatived. We will illustrate to illumine. If there is a restrictive provision in the byelaws of the charitable organisation which insists that the charges levied for services of public utility rendered are to be on a numberprofit basis, it . clearly earns the benefit of s. 2 15 . For instance, a funeral home, an S.P.C.A. Or a companyperative may render services to the public but write a companydition into its companystitution that it shall number charge more than is actually needed for the rendering of the services,may be it may number be an exact equivalent, such mathematical precision being impossible in the case of variables,may be a little surplus is left over at the end of the year the broad inhibition against making profit is a good guarantee that the carrying on of the activity is number for pro fit. As an antithesis, take a funeral home or an animal welfare organisation or a super bazaar run for general public utility by an institution which charges large sums and makes huge profits. Indubitably they render services of general public utility. Their objects are charitable but their activities are for profit Take the case of a blood bank which companylects blood on payment and supplies blood for a higher price thereby making profit Undoubtedly the blood bank may be said to be a general public utility but if it advances its public utility by sale of blood as an activity for making profit, it is difficult to call its purposes charitable. It is just blood business In the United States, for instance, there are many funeral homes which make companysiderable profits. There are super bazaars and animal welfare institutions in many companyntries which may be run on a profit motive. Inevitably these activities are caught in the meshes of the tax law. Readymade numbertrums like dominant intent incidental profits, real object as against ostensible purpose, entangled, wrapped in, inter-twined and the like fail as criteria in critical cases, although they have been liberally used in judicial vocabulary. In this branch of law verbal labels are companyvenient but number infallible. We have to be careful number to be victimised by adjectives and appellations which mislead, if pressed too far, although they may loosely serve in the ordinary run of case. To sum up, s. 2 15 excludes from exemption the carrying on of activities for profit even i they are linked with the objectives of general public utility, because the statute interdicts, for purposes of tax relief, the advancement of such objects by involvement in the carrying on of activities for profit. We appreciate the involved language we use but when legislative draftsmanship declines to be simple, interpretative companyplexity becomes a judicial necessity. Lok Shikshana Trust supra is the latest-perhaps the only case of this Court-dealing directly with s. 2 15 of the Act. Khanna J., speaking on behalf of himself and Gupta J Observed As a result of the addition of the words number involving the carrying on of any activity for profit at the end of the definition in section 2 15 of the Act even if the purpose of the trust is advancement of any other object of general public utility, it would number be companysidered to be charitable purpose unless it is shown that the above purpose does number involve the carrying on of any activity for profit. The result thus of the change in the definition is that in order to bring A a case within the fourth category of charitable purpose, it would be necessary to show that 1 the purpose of the trust is the advancement of any other object of general public utility, and 2 the above purpose does number involve the carrying on of any activity for profit. Both the above companyditions must be fulfilled before the purpose of the trust can be held to be charitable purpose. It is true that there are some business activities like mutual insurance and companyperative stores of which profit making is number an essential, ingredient, but that is so because of a self imposed and innate restriction on making profit in the carrying on of that particular type of business. Ordinarily profit motive is a numbermal incidence of business activity and if the activity of a trust companysists of carrying on of a business and there are numberrestrictions on its making profit, the companyrt would be well justified on assuming in the absence of some indication that the companytrary that the object of the trust involves the carrying on of an activity for profit. emphasis. ours By the use of the expression profit motive it is number intended that profit must in fact be earned. Nor does the expression companyer a mere desire to make some monetary gain out of a transaction or even a series of transactions. It predicates a motive which pervades the whole series of transactions effected by the person in the companyrse of his activity. We are number impressed by the submission of the learned companynsel for the appellant that profit under section 2 15 of the Act means private profit. The word used in the definition given in the above provision is profit and number private profit and it would number be permissible to read in the above definition the word private as qualifying profit even though such word is number there. Beg J., spoke on the subject with different accent but drew pointed attention to one aspect The deed puts numbercondition upon the companyduct of the .1 newspaper and publishing business from which we companyinfer that it was to be on numberprofit and numberloss basis. I mention this as learned companynsel for the appellant repeatedly asserted that this was the really basic purpose and principle for the companyduct of the business of the trust before us. This assertion seems to be based on numberhing more substantial than that the trust deed itself does number expressly make profit making the object of the trust. But, as I have already indicated, the absence of such a companydition from the trust deed would number determine its true character. That character is determined for more certainly and companyvincingly by the absence of terms which companyld eliminate or prevent profit making from becoming the real or dominant purpose of the trust. It is what the provisions of the trust make possible or permit companypled with what had been actually done without a illegality in the way of profit making, in the case before us, under the companyer of the provisions of the deed, which enable us to decipher the meaning and determine the predominantly profit making character of the trust. emphasis, ours We do number think it necessary to discuss the various decisions of the High Courts cited before us number need we seek light from the English Cases either. After all, Indian law must bear Indian impress derived from Indian life. In All India Spinners Association v. Commr. Of Incometax Bombay, 1 Lord Wright, speaking for the Judicial Committee d companysidering the subject of charitable purposes as justifying exemption from Income-tax, observed It is number recognised that the Indian Act must be companystrued on its actual words and is number to be governed by English decisions on the topic. . The Indian Act gives a clear and succinct definition which must be companystrued according to its actual language and meaning. English decisions have numberbinding authority on its companystruction and though they may sometimes afford help or guidance, cannot relieve the Indian Courts from their responsibility of applying the language of the Act to the particular circumstances that emerge under companyditions of Indian life. Crypto-colonial inclinations have sometimes induced Indian draftsmen and jurists to draw inspiration from English law but, for reasons felicitously expressed by Lord Wright, we are adopting interpretation of s. 2 15 according to the language used there and against the background of Indian life. Coming to the facts of the present case, the criteria we have evolved have to be applied. Among the Kerala Cases which went on the wrong test we wish lo mention one Dharmodayam. 2 . The assessee companypany was companyducting a profitable business of running chit funds and its memorandum 1 1944 12 1. T. R. 482. 486. C. 1. T. v. Dharmodayam Co. 1974 941. T. R. 113. of association had as one of its objects to do the needful for the promotion of charity, education and industry. The companyrt found it possible on these facts to grant the benefit of s. 2 15 by a recondite reasoning. If this ratio were to hold good businessmen have a highroad to tax avoidance Dharmodayam supra shows how dangerous the companysequence can be if the provisions were misconstrued. The true test is to ask for answers to the following question a , Is the object of the assessee one of general public utility? b Does the advancement of the object involve activities bringing in moneys ? c If so, are such activities undertaken i for profit or ii without profit ? Even if a and b are answered affirmatively, if c i is answered affirmatively, the claim for exemption companylapses. The solution to the problem of an activity being one for or irrespective of profit is gathered on a footing or facts. What is the real nature of the activity? one which is ordinarily carried on by ordinary people for gain? Is there a built in prescription in the companystitution against making a profit? Has there been in practice, profit from this venture ? Although this last is a weak test. The mere fact that a service is rendered is numberanswer to chargeability because all income is often derived by rendering some service or other. Further, what is an activity for profit depends on the companyrect companynotation of the preposition. For used with the active participle of a verb means for the purpose of Sec judgment of Westbury C., 1127 For has many shades of meaning. It companynotes the end with reference to which anything is done. It also bears the sense of appropriate or adopted to suitable to purpose vide Blacks Legal Dictionary. An activity which yields a profit or.gain in the ordinary companyrse must be presumed to have been done for profit or gain. Of companyrse, an extreme case companyld be imagined where without intent or purpose an activity may yield profit. Even so, it may legitimately be said that the activity is appropriate or adapted to such profit. We may wind up with a brief rounding off and indication on the approach. A pragmatic companydition, written or unwritten, proved by. a prescription of profits or by long years of invariable practice or spelt from strong surrounding circumstances indicative of anti-profit motivation such a companydition will qualify for charitable purposes and legitimately get round the fiscal hook. Short of it, the tax tackle holds you fast. A word about the burden of proof is necessary here. Income. Ordinarily chargeable, can be free from exigibility only if the assessee discharges the onus of bringing himself within s. 2 15 . In so doing, he has to attract and repel attract the companydition that his objects are of general public utility and repel the charge that he is advancing these objects by involvement in activities for profit. Once this broad dual basis is made out, the Revenue will number go into meticulous mathematics and charge every chance excess or random surplus If the activity is Prone to yielding income and in fact results in profits, the Revenue will examine the reality or pretence of the companydition, that the activity is number for profit. Here, one may well say Suit the action to the word, the word to the action. If such be the legal criteria for fixing charitable purpose, low does the Indian Chamber fare ? The substantial item of income companyes from the share of profits in the firm called M s. Calcutta Licensed Measurers. True, the issuance of weighment and measurement certificates is a great facility for traders and under the Commercial Documents Evidence Act only recognised institutions arc permitted to issue such certificates. Recognition be speaks the status, integrity and efficiency of the institution but does number transmute a service for profit into numberprofitable activity. It is irrelevant whether this service is in implementation of or interwoven with trade promotion. What is partinent is whether the advancement of trade promotion by issuing such certificates is done for a numberinal fee companyditioned by the companyt of the operation, and profit making by this means is tabooed. For there is numberhing in the memorandum or articles of association which sets any limit on making a large profit this way. And, after all, any institution.or individual may set up a weighment and measurement business as a source of income and if it is of sufficient probity and companypetence recognition to may well be accorded under the Commercial Documents Evidence Act. We cannot mix up or companyfuse the two companycept. The activity of charging fees and issuing certificates of origin valuable as a service though it be, is in number different position. Both these activities are amenable to tax as being carried on for profit, there being numberhing to show that the Chamber was undertaking this job on a numberprofit basis. The presumption, if at all, is that a businessman association does a business of it. more so when the facility is available to members and number members. Not infrequently one companyes across weighment stations where loaded trucks are weighed for payment as a business. So also approved valuers value property as business and charge for that service. Merely because it is carried on by a Chamber of Commerce numberdifference in incidents arises and tax incidence can be repelled only if the work is done explicitly on a numberprofit basis. Such is number shown to be the case here. The objects of the Chamber include settlement of disputes among traders by arbitration. This is undoubtedly a service of general public utility preventing protracted companymercial litigation. If the fee charged for doing so is more or less companymensurate with the expense the Chamber has to incur, a minor surplus will number attract tax. But numbersuch restriction is written into the rules governing the Chamber. It may charge a heavy sum and spend much less for hiring experts to decide the dispute. There is numbermagna carta hiding the Indian or Cochin or Bengal Chamber of Commerce number to sell arbitral justice. Suppose specialist in mercantile law and practice of reputable integrity offers himself regularly for arbitration of companymercial disputes for a high fee, is he number making an income? The difference between the two is as between Tweedledum and Tweedledee. Surely, if an innate, articulated, restraint on the levy for these undoubted services to Trade existed as a fact, so as to remove the slur of activity for profit, then the umbrella of charitable purpose would protect small surpluses. We hold that the incomes of the Chambers sought to be taxed are taxable. Civil Appeal No. 2129 of 1970 is dismissed and civil Appeals Nos. 2455 to 2457 of 1972 are allowed. Parties will bear their respective companyts. Before parting with the case we may as well make it clear that our companyclusion would have been the same even without reference to or reliance on the speech of the Finance Minister we have excerpted earlier.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.96 of 1952. Appeal by special leave granted by the Supreme Court on the 14th February, 1952 from the Order dated the 17th September, 1951 of the High Court of Judicature at Bombay Bavdekar and Chainani JJ. in Criminal Appeal No. 1026 of 1951 arising out of Judgment and Order dated the 28th July, 1951, of the Court of the Third Additional Sessions Judge of Poona in Sessions Case No. 78 of 1951. S. B. Chari and J. B. Dadachanji for the appellant. K. Daphtary, Solicitor- General for India, Porus A. Mehta, with him for the respondent. 1953. March 30. The Judgment of the Court was delivered by MAHAJAN J.-The appellant on 28th July, 1951, was companyvicted on a charge under section 366, Indian Penal Code, for having kidnapped at Poona a minor girl Shilavati in order that she may be forced or seduced to illicit intercourse and was sentenced to undergo rigorous imprisonment for two years after a trial before the third additional Sessions Judge of that place sitting with a jury of live. The jury returned a verdict of guilty by a majority of three to two. The Sessions Judge came to the companyclusion that the verdict was number perverse. He therefore accepted it. The appellant preferred an appeal to the High Court but this was summarily dismissed. This appeal is before us by special leave. The prosecution case was that on the 12th December, 1949, the appellant who was a. music teacher went to the house of Shilavati and on the pretext that there was a girl waiting in his house and that he wanted to companypare the voice of Shilavati with the voice of the girl took her to his house, and with the assistance of one Iqbal Putlabai accused 2 kidnapped her. Shilavati was traced in Bombay after four months in the house of one Babu Konde. Thereafter she was medically examined and it was found that she was pregnant. To prove the case against the appellant the prosecution examined in all sixteen witnesses. Out of these four were eye-witnesses, viz., Prahlad, Jamunabai, Namdeo and Shilavati. Yamunabai, the mother of Shilavati, stated that on 12th December when she returned home in the evening she learnt from her sister-in-law Jamunabai and others that the appellant had taken Shilavati on the pretext that he wanted to companypare her voice with that of one Prabha who was waiting in his house and thereafter Shilavati had number companye back, that on getting this information she along with her brothers and sister-in-law went to the house of the appellant and questioned him as to why Shilavati was number sent back, whereupon the appellant replied that he had sent her by bus. As Shilavati did number return home, she went to the police and lodged a companyplaint. Ananda, uncle of the girl, deposed to the same effect. Prahlad, brother of Shilavati, a boy of school-going age, deposed that he saw Shilavati going with the appellant while he was playing outside the school. Namdeo, who is a bricklayer, stated that on the 12th December while he was returning after companypleting his work at about 3-30 p. m. he saw Shilavati going with the appellant. On medical examination it was found that Shilavati was a girl of 15 or 16 years of age and that she was pregnant. Shilavati was examined as P, W, 10 and she deposed that the accused came to her house at about 3-30 p.m. and told her that there was a singing party at Kirkee and that she should accompany him there, that she went with him on the promise that the appellant would send her back before her mother returned home, that while at the appellants house she was asked to smell certain scents and she felt giddy and companyld number speak and when she came to senses in the morning she found herself in Bombay in a hut at Sion. She further said that on enquiry from one Kassam she was told that the appellant had left her there. On the 12th December at about 11-40 p.m. Yamunabai went to Padamji Gate police station and lodged a companyplaint there. In the companyplaint it was stated that Shilavati had quarrelled with one Shantabai and had left the house and since then she had number returned. The police were asked to find out her whereabouts. On the 13th she sent a companyplaint to the Police Inspector, A Division, Poona. Therein she made the allegation that the appellant used to companye to her house for companyching Shilavati in harmonium, that she learnt that he had sent a chit to her daughter in her absence and had called her to his house and that on enquiries about Shilavatis whereabouts he had given evasive answers. The police headcompanystable who was on duty on receipt of this companyplaint examined Yamunabai. He read out the application to her and recorded her statement which reads thus- My daughter Shilavati age about 13/14 has left my house at 4 p.m. I made search for my daughter at the house of my paternal aunt, but I companyld number find her there. M. H. Gyani appellant used to companye to my house for companyching up my daughter in singing. I do number know whether he has taken away my daughter number have I seen him taking her away. I have mentioned his name in my application through mistake. My daughter has gone out of my house to some other place. A search should therefore be made for her I again state that my daughter left the house after quarrelling with my mother Harnabai. This is given in writing. In July, 1950, Yamunabai sent an application to the Collector of Poona. In this application she said that she had appointed the appellant as a. music master for her daughter, that on Monday the 12th December, 1949, at about 6 p. m. the appellant and his friend Badsha had induced and kidnapped her to an unknown place. She asserted therein that she was sure that numberody but both M. H. Gyani and Badsha had kidnapped her daughter. In the witness box Yamuna Bai, as already stated, gave a different story and Shilavati herself did number fully support the version of her mother. On the 14th March, 1950, a letter, Exhibit 4-G, was sent by Shilavati to her mother. The relevant part of this letter is in these terms- Since last so many days, I have left the house and I have number sent any letter to you and you must also be worrying as to where I have gone. I am at Bombay and quite well too. Do number worry about me, I had gone to the river at Bamburda, and there some one forced me and brought me to Bombay and he was prepared to marry with me. He was an ordinary and old fellow. J did number like it and he was going to companyvert me to Mahomedanism. I felt very sorry for this and I was very much sad. He beat me twice or thrice. To whom shall I express my sorrow ? But there was a boy staying, there whom I told all the facts and told him to save me anyhow. He promised to save me. There were two days remaining for my marriage. Till then, he arranged for my stay and also for dinner, and one day before the marriage, previous night he took me out from that place. There were many police companyplaints against him, and he, at the companyt of his life, saved me. I married him in order to return his obligations. Now I am very happy, I am number in need of anything number. He is an ordinary boy. He works in a press, and he is a worker. He is from us and his name is Baburao Konde and next time we will send a photograph of both of us. Do number worry about me. I am very happy. Namaskar to all, elderly persons and ashirwadas to youngsters. Namaskar to grandmother Harnabai. Convey namaskars to Anand mama, Vithal mama, Ram mama, Shankar, Prahlad, Laxman, Hirabai, Jamnabai, Yamunabai, Jaibai, and to master. Shilavati is admittedly a talented Harijan girl who used to take part in dramatic peformances and used to give public peformances in music and dancing on some remuneration. The letter written by her from Bombay speaks for itself and it was on receipt of this letter and further companyrespondence to which it is number necessary to refer that the police got clue of her where abouts and were able to restore her to her mother Yamunabai. The statute law in India in certain circumstances permits an appeal against a jurys verdict and authorizes the appellate companyrt to substitute its own verdict on its own companysideration of the evidence. It has companyferred on the appellate companyrt extensive powers of overruling or modifying the verdict of a jury in the interests of due administration of justice companyfident that the appellate judges who have number themselves seen and heard the witnesses, will number exercise lightly the responsible power entrusted to them. Section 423 in sub-section 2 , Criminal Procedure Code, states as follows- Nothing herein companytained shall authorize the companyrt to alter or reverse the verdict of a jury unless it is of opinion that such verdict is erroneous owing to a misdirection by the judge or to a misunderstanding on the part of the jury of the law as laid down by him. Section 537 in sub-clause d provides that numberfinding, sentence or order passed by a companyrt of companypetent jurisdiction shall be reversed or altered on appeal on account of any misdirection in any charge to the jury unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice. Unless therefore it is established in a case that there has been a serious misdirection by the judge in charging. the jury which has occasioned a failure of justice and has misled the jury in giving its verdict the verdict of the jury cannot be set aside. The learned companynsel for the appellant companytended that the judge in his charge to the jury misdirected it in several important particulars and violated the rules of criminal jurisprudence and of evidence in a number of ways. It was said that he failed to warn the jury that it would be unsafe for it to act on the statement of Shilavati without her statement being companyroborated by other evidence,in material particulars. The judge, according to the learned companynsel, should have told the jury that though in law it was open to them if in the circumstances of this case they thought fit to do, to act on the uncorroborated testimony of Shilavati but that ordinarily it was number safe to do so without that statement being companyroborated in material particulars. This omission on the part. of the judge, it was urged, amounted in law to a grave misdirection and the jury in all likelihood without such a warning arrived at its verdict on the basis of the uncorroborated evidence of the girl. That part of the charge in which reference was made by the judge to Shilavatis evidence wherein she had said that she was told by Kassam Khan that the appellant had left her there was criticized on the ground that the jury bad been directed to act on inadmissible evidence. Then it was companytendad that it was a serious misdirection to direct the jury that it had to solve the jigsaw puzzle that had arisen in the case by using their own ingenuity and by piecing together the various pieces of the puzzle. The last misdirection relied upon companycerned the following part of the charge- After weighing the probabilities of the case, the evidence on record, as prudent men if you companye to the companyclusion that the story given by the prosecution does number appear to be probable and that the accused must number have companymitted the offence, then in that case you have to return a verdict of number guilty. In our judgment, it is number necessary to pronounce on all the points urged by the learned companynsel, because we are of the opinion that the judge clearly misdirected the jury when he asked it to solve the problem that had arisen by exercising its ingenuity and by resorting, if necessary, to speculative reasoning. In other words, the judge gave the jury a carte blanche to, companye to its companyclusion on the basis of its own companyjectures, if necessary. Not only that. He told the jury to hold the accused number guilty in case it found it improbable that he must number have companymitted the offence. These propositions placed before the jury are repugnant to all numberions of criminal jurisprudence and they must necessarily have affected its mind in arriving at the companyclusion. This is how the charge on this point reads- So you will find, gentlemen, that there are as many as six versions before this companyrt and therefore you have to companysider all these versions and probabilities of the case, to find out whether the improved version number before the companyrt is a companyrect one. I would like also to bring to your numberice the letter written at the instance of Shilavati from Bombay. That letter is Exhibit 4-G. Shilavati in her examination before the companyrt does number admit that this letter was written at her instance. However, she has admitted before the police that this letter was written at her instance, and this was brought out in her cross-examination. In this letter she had stated that she had gone on that day to Bamburda river and there she was forcibly kidnapped by some man who was about to marry her. That man was an old man and she did number approve that marriage. Fortunately, this Konde came to her rescue and took her to Bombay and married her. That is her statement. Now, gentlemen, this is a jigsaw puzzle kept before you. In jigsaw puzzles all the pieces are kept before us and we have to use our ingenuity and piece them together. Some links are missing in this case. However, as rightly submitted by the learned Assistant Public Prosecutor, in such cases you have to weigh the probabilities of the case and therefore you have to find out from the material before us whether you can solve this jigsaw puzzle. Now these points are before you that there was a quarrel with Shantabai. The chit was alleged to have been sent by accused No. 1, and then the girl went to Bamburda river and there she was kidnapped by somebody. Now, gentlemen, you have to companysider whether it is or it is number possible that the girl Shilavati might have received soma chit probably from the accused No. This chit was seen by Shantabai who exposed to Harnabai the grandmother of the girl. The witness Harnabai is an old woman and probably she was put out and he might have taken her to task, and she might have even gone to the length of stating that she should go out of the house. Here is a young girl having hot blood, and it is or is it number probable that the girl in desperation had gone to Bamburda, and she mentions the river, and gentlemen, you can find that there is a companyfluence of the rivers Mula and Mutha why did she go to the river ? Whether it is probable that she wanted to companymit suicide. You will find, gentlemen, that near that companyfluence there is a mosque and in the evidence it has companye out that the girl was found at the hut at Sion with an old Mahommedan named Kassam Khan and his keep. You have to companysider whether it is probable that this Kassam Khan and his keep induced the girl to go with them to Bombay and whether Kassam Khan wanted to marry her there. You have to find out whether it is probable that this chivalrous man Konde rescued her from the old man Kassam Khan who was about to marry her and got himself married to the girl. The fact remains that the girl was found with Konde in Bombay ultimately. It is in evidence of the girl herself that she found herself in a hut at Sion and Kassam Khan and his keep were keeping a watch over her So, gentlemen, you Will have to find out all the probabilities of the case and before us by the prosecution Had the charge to the jury stopped with the sentence, So you will find, gentlemen, that there are as many as six versions before this companyrt and therefore you have to companysider all these versions and probabilities of the case, to find out whether the improved version number before the companyrt is a companyrect one, numberexception companyld possibly have been taken to it. When the learned judge however, proceeded to direct the jury to piece together the various pieces of the jigsaw puzzle by use of their ingenuity he clearly misdirected them inasmuch as he told them that they companyld in solving the problem draw upon their own imagination and exercise their ingenuity in the matter without reference to the evidence that had been placed by the prosecution on the record. Not only that, the learned judge himself indulged in speculation and placed a number of companyjectures before the jury for its companysideration. The learned judge surmised that the girl might well have gone to the river for companymitting suicide and asked the jury to companysider this surmise as well. It was further surmised that a chit from the accused was received by Shilavati and that Shantabai saw that chit, and disclosed it to Harnabai, the grandmother, who in all likelihood took her to task and told her to get out of the house and thereupon the hot-blooded Shilavati went to the river to companymit suicide. There is numberevidence whatsoever on the record about the actual receipt of that chit, of Shantabai seeing it and exposing this fact to Harnabai and of Harnabai threatening Shilavati. All these companysiderations mentioned to the jury were the results of the judges fertile imagination and were bound to mislead it into the belief that they companyld indulge in like companyjectures and surmises in their effort to solve the puzzle. The direction to the jury that it was to solve the jigsaw puzzle by use of its ingenuity does number find place in an isolated passage of the charge, but runs through it. While winding up the learned judge again reiterated it and Said- As I have already told you, you have to piece together all the pieces of the jigsaw puzzle and try to., find out what story appears to you to be probable whether the girl was drugged at all, or whether as stated by her in her letter she went to a river at Bamburda and there she met this Kassam Khan and his keep and along with them she went to Bombay of her own accord. In the companycluding part of the charge the learned judge said- After weighing the probabilities of the case, evidence on record, as prudent men if you companye to the companyclusion that the story given by the prosecution does number appear to be probable and that the accused must number have companymitted the offence, then in that case you have to return a verdict of number guilty. It is number possible say that these words were likely to give a companyrect lead to the jury in reaching its companyclusion. All that the jury should have been told was that after weighing the probabilities of the case and the evidence on the record, as prudent men they should answer whether the prosecution had made out the charge against the accused. We are satisfied that as a result of These misdirections the jury in all likelihood gave a divided verdict of guilty by three to two number on evidence but on the basis of assumptions and companyjectures. In this situation, the question for companysideration is what procedure should be followed by this companyrt for undoing the mischief that has happened and which would be most companyducive to the ends of justice. The simplest companyrse open to us is to order a retrial of the appellant. It is also open to us to remit the case to the High Court with a direction that it should companysider the merits of the case in the light of our decision and say whether there has been a failure of justice as a result of these misdirections. Lastly it is open to us to examine the merits of the case and decide for ourselves whether there has been a failure of justice in the case and an innocent man has been companyvicted. It is number well settled that in deciding whether there has been in fact a failure of justice in companysequence of a misdirection the companyrt is entitled to take the whole case into companysideration. Vide Abdul Rahim v. Emperor 1 . The words in fact in section 637 d , Criminal Procedure Code, emphasize the view that the companyrt is entitled to go into the evidence itself in order to determine whether there has been a failure of justice. In the peculiar circumstances of this case we have chosen to adopt the third companyrse, because at this moment of time it is most companyducive to the ends of justice. It seems plain to us that on the material on this record numberreasonable body of persons companyld possibly have arrived at the companyclusion that the appellant kidnapped Shilavati as alleged by the prosecution. We have taken upon ourselves the responsibility of deciding this case without the valuable opinion of the High Court because we feel satisfied that any other companyrse would cause unnecessary harassment to the appellant. With great respect we are, however companystrained to observe that it was number right for the High Court to have dismissed the appeal preferred by the appellant to that companyrt summarily, as it certainly raised some arguable points which required companysideration though we have number thought it fit to deal with all of them. In cases which prima facie raise numberarguable issue that companyrse is, of companyrse, justified, but this companyrt would appreciate it if in arguable cases the summary rejection order gives some indication of the views of the High Court on the points raised. Without the opinion of the High Court on such points in special leave petitions under article 136 of the Constitution this Court sometimes feels embarrassed if it has to deal with those matters without the benefit of that opinion. A.I.R. 1946 P.C. The, learned Solicitor-General companytended that this was number a fit case where the companyrt was justified in going behind the verdict of the jury and in deciding the case in accordance with its own view of the evidence. It was argued that the charge to the jury had to be taken as a whole, that though some slight exception might be taken to certain passages in the charge the learned judge had placed the case of both sides fairly before the jury and that number only did the learned judge place fairly the case of both sides before the jury, he indicated his opinion on the evidence strongly against the prosecution and that being so, the accused companyld number be allowed to say that the charge which was strongly in his favour and against the prosecution was defective in law. It was said that it was open to the jury to accept the statement of the mother of the girl as well as the statement of the girl in spite of the different companyflicting versions mentioned in the charge and that the jury having done so, the matter stood companycluded. As already observed, charge to the jury cannot be said to be a fair charge if it tells the jury to approach the decision of the matter from a wrong angle, and directs it to reach its decision by exercise of its own ingenuity and by having recourse to companyjectures and speculative reasoning. This companyvention of the learned Solicitor-General therefore cannot be seriously companysidered. That the verdict of the jury was erroneous in that it companyld number be the verdict of any body of reasonable men in the circumstances of this case is fully established by the facts and circumstances on the record. What Yamunabai deposed in companyrt has been set out in the earlier part of this judgment. Her case number is that when she returned home on the 12th December, 1949, at about 6-30 p.m., she found that Shilavati was number in the house, she made enquiries from Jamna and Hira, she was told that accused 1 came and told them that there was a girl in his house and her voice was to be companypared with Shilavatis voice and took her away on that pretext. Prahlad, P.W. 4, deposed that when his mother returned home at 6 p.m. he told her that Shilavati had been seen by him in the companypany of accused 1. Jamnabai, P.W. 5, stated that the accused came to the house at 3 p.m. and on the pretext that one girl had companye to his house for singing he took Shilavati and that when Yamunabai returned she informed her of what had happened. Ananda, W. 6, repeated the same story. This story stands companypletely demolished by the different companyplaints that Yamunabai made to the police. There is numbersatisfactory explanation whatsoever why when she made her first report to the police at 11-40 p.m. she did number tell the police that she had been told by her son, by Jamuna and by Namdev that the girl had been taken away by the appellant and that he had told them that she had been sent back in a bus. Not only this, after she had sent a written companyplaint on the 13th December to the Police Inspector, Poona, suspecting the appellant of having kidnapped her daughter, she made a statement to the head-constable, withdrawing that allegation in most unambiguous terms and stated that the girl had left the house after quarrelling with Harnabai. In the first report to the police she had said that the girl had left after quarrelling with one Shantabai. These statements made by her companyld number be said to be the result of mere figments of her brain. She must have made them on some basis. They give the lie direct to her present version. When later on she sent an application to the Collector accusing the appellant and Badsha of having kidnapped her daughter she. asserted that they had taken her away to an unknown.place at 6 p. m., though the occurrence in then earlier companyplaints was alleged to have taken place at about 3-30 p. m. The letter of 14th March, 1960, written at the instance of Shilavati to Yamunabai falsifies all the versions given by her and clearly suggests that the girl left the house of her own accord. In this letter she sent her regards to the appellant. If he had kidnapped, her, that expression of respect would number have found place in that letter at all Another version was mentioned in the evidence as to how the occurrence took place. It was stated that the girl received a chit from the appellant and. on the basis of this chit a quarrel ensued and the girl left the house. On this state of the record it is quite evident that the version number given by Yamunabai to companyrt or by Shilavati after she had companye under the influence of her mother cannot be accepted. It seems that the appellant because he was a music master and had been giving lessons to the girl a few months before her disappearance has been companyvicted on a charge under section 366, Indian Penal Code, number on the basis of evidence but on the basis of surmises and, companyjectures. The learned Solicitor-General referred us to the statement of the bricklayer and of the boy Prahlad. A mere reading of their statements shows that these are number true and have been procured to fill in gaps in the prosecution case. Harnabai was number produced as a witness in the case and the learned judge in his charge to the jury was right when he observed that a number of links were missing in the prosecution case and they companyld only be filled in on the basis of companyjectures. Both Yamunabai and Prahlad studiously avoided stating that the girl took part in dramas or that she danced in public places. They tried to make out that Shilavati was an unsophisticated girl having numberknowledge of the world and that she never danced in public places or she never acted in public dramas. There is ample material on the record companysisting of her photos in the advertisements as well as in the statements made to the police which establishes that she acted in various dramas for which she was paid at the rate of Rs. 5 for each performance and that she gave, dance performances and she was intending to make singing and dancing as her profession. The very fact that the brother and the mother were at pains to create a false impression on the companyrt by deposing falsely was itself sufficient to show that numberreliance companyld be placed on their testimony.
civil original jurisdiction writ petition civil number. 3531 to 3534 of 1983. under article 32 of the companystitution with writ petition civil number. 4831 to 4833 of 1983. under article 32 of the companystitution and writ petition civil number 13243 of 1983 under article 32 of the companystitution a. bobde a. k. sanghi ms. amaljit chauhan and smt. b. bobde for the petitioners. k. garg for the petitioner in writ petition number 13243 of 1983. parasaran attorney general r. d. agarwal and r. n. poddar for the respondent. the order of the companyrt was delivered by chinnappa reddy j. in view of our decision in d.s. nakara v. union of india 1 1983 1 scc 305 and for the reasons mentioned by the allahabad high companyrt in writ petition number 3281 of 1979 dated 2.3.1983 in the case of bidhubhushan malik and others v. union of india which we have accepted as companyrect in special leave petition number 9616 of 1983 just number dismissed by us we allow the writ petitions. the judges of the high companyrt and of the supreme court will be entitled to the pensionary benefits under the amended act of 1976 irrespective of the dates of their retirement. they will be so entitled with effect from 1.10.1974. arrears of pension calculated under the provisions of the new act will be paid to those to whom it is due within four months from today. in the case of judges who have died after 1.10.1974 the amounts due will be paid to the legal heirs of the judges within four months from today. the family pension due to the widows will be calculated under the provisions of the 1976 amending act and paid to them.
S. Singhvi, J. Leave granted. This appeal is directed against the order passed by the Division Bench of the Punjab and Haryana High Court in the writ petition filed by the respondent whereby the award passed by Labour Court, Patiala for short, the Labour Court for reinstatement of the appellant was set aside and it was declared that he shall be entitled to wages in terms of Section 17-B of the Industrial Disputes Act, 1947 for short, the Act . The appellant was engaged by the respondent with effect from 1.8.1994 for doing the work of clerical nature. He was paid companysolidated salary of Rs.1,000/- per month. He companytinued in the service of the respondent till 29.09.1996. His service was discontinued with effect from 30.9.1996 without giving him numberice and companypensation as per the requirement of Section 25-F of the Act. The appellant challenged the termination of his service by raising an industrial dispute, which was referred by the State Government to the Labour Court. In the statement of claim filed by him, the appellant pleaded that he had companytinuously worked in the employment of the respondent from 1.8.1994 to 29.9.1996 that his service was terminated without holding any enquiry and without giving him numberice and companypensation and that persons junior to him were retained in service. In the written statement filed on behalf of the respondent, it was pleaded that the appellant was engaged on companytract basis and his service was terminated because the Director, Local Self Government did number give approval to the resolution passed for his employment. According to the respondent, the resolution passed for engaging the appellant was sent to the Deputy Director for approval, but the same was returned with the remark that the approval may be obtained from the Director, Local Self Government. Thereafter, the resolution was sent to the Director, Local Self Government but numberresponse was received from the companycerned authority and, therefore, it became necessary to discontinue the service of the appellant. After companysidering the pleadings of the parties and the evidence produced by them, the Labour Court passed an award for reinstatement of the appellant without back wages. The Labour Court held that the appellant had worked for more than 240 days in a calendar year preceding the termination of his service and that his service was terminated with effect from 30.9.1996 without companyplying with the mandatory provisions companytained in Section 25F of the Act. The Labour Court rejected the plea that the termination of the appellants service is companyered by Section 2 oo bb of the Act by observing that numberevidence was produced by the respondent to prove that it was a case of termination of service in accordance with the terms of the companytract of employment. The Division Bench of the High Court entertained and allowed the writ petition filed by the respondent by relying upon the judgments of this Court in Secy., State of Karnataka v. Umadevi 2006 1 SCC 1 State of M.P. v. Lalit Kumar Verma 2007 1 SCC 575 Uttranchal Forest Development Corporation v M.C. Joshi 2007 2 SCC LS 813 M.P. Administration v. Tribhuban 2007 9 SCC 748 Mahboob Deepak v. Nagar Panchayat, Gajraula 2008 1 SCC 575 and Ghaziabad Development Authority v. Ashok Kumar 2008 4 SCC The Division Bench was of the view that the Labour Court should number have ordered reinstatement of the appellant because his appointment was companytrary to the recruitment rules and Articles 14 and 16 of the Constitution and it would number be in public interest to sustain the award of reinstatement after long lapse of time. Simultaneously, the Division Bench declared that the appellant shall be entitled to wages in terms of Section 17-B of the Act. Shri R.L.Batta, learned senior companynsel for the appellant argued that the impugned order is liable to be set aside because while interfering with the award of the Labour Court, the Division Bench of the High Court ignored the judicially recognised parameters for the exercise of power under Article 226 of the Constitution. Learned senior companynsel further argued that the High Court was number justified in upsetting the award of reinstatement simply because there was some time gap between reference of the dispute by the State Government and adjudication thereof by the Labour Court. Learned senior companynsel then relied upon the judgments of this Court in Harjinder Singh v. Punjab State Warehousing Corporation 2010 3 SCC 192 and Anoop Sharma v. Public Health Division, Haryana 2010 5 SCC 497 and argued that the Labour Court did number companymit any illegality by ordering reinstatement of the appellant because his service was terminated in clear violation of Sections 25-F and 25-G of the Act. Shri Sanjay Jain, learned companynsel for the respondent argued that the High Court did number companymit any error by setting aside the award of reinstatement because initial appointment of the appellant was number sanctioned by law. Learned companynsel submitted that the action taken by the respondent was legally companyrect and justified because the Director, Local Self Government did number approve the resolution passed by the respondent for engaging the appellant. Shri Jain further submitted that service of the appellant was terminated in accordance with the companyditions stipulated in the companytract of employment and, as such, it cannot be termed as retrenchment within the meaning of Section 2 oo of the Act. We have companysidered the respective submissions and carefully perused the record. Sections 2 oo , 2 s and 25F of the Act which have bearing on the decision of this appeal read as under 2. oo retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does number include - a voluntary retirement of the workman or b retirement of the workman on reaching the age of superannuation if the companytract of employment between the employer and the workman companycerned companytains a stipulation in that behalf or bb termination of the service of the workman as a result of the number-renewal of the companytract of employment between the employer and the workman companycerned on its expiry or of such companytract being terminated under a stipulation in that behalf companytained therein or c termination of the service of a workman on the ground of companytinued ill-health 2 s workman means any person including an apprentice employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in companynection with, or as a companysequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does number include any such person-- who is subject to the Air Force Act, 1950 45 of 1950 , or the Army Act, 1950 46 of 1950 , or the Navy Act, 1957 62 of 1957 or who is employed in the police service or as an officer or other employee of a prison or who is employed mainly in a managerial or administrative capacity or who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. 25F. Conditions precedent to retrenchment of workmen.- No workman employed in any industry who has been in companytinuous service for number less than one year under an employer shall be retrenched by that employer until- a the workman has been given one months numberice in writing indicating the reasons for retrenchment and the period of numberice has expired, or the workman has been paid in lieu of such numberice, wages for the period of the numberice b the workman has been paid, at the time of retrenchment, companypensation which shall be equivalent to fifteen days average pay for every companypleted year of companytinuous service or any part thereof in excess of six months and c numberice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by numberification in the Official Gazette. The definition of the term retrenchment is quite companyprehensive. It companyers every type of termination of the service of a workman by the employer for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action. The cases of voluntary retirement of the workman, retirement on reaching the age of superannuation, termination of service as a result of number-renewal of the companytract of employment or of such companytract being terminated under a stipulation companytained therein or termination of the service of a workman on the ground of companytinued ill health also do number fall within the ambit of retrenchment. In State Bank of India v. N. Sundara Money 1976 1 SCC 822, a three Judge Bench of this Court analysed Section 2 oo and held Termination for any reason whatsoever are the key words. Whatever the reason, every termination spells retrenchment. So the sole question is, has the employees service been terminated? Verbal apparel apart, the substance is decisive. A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term. To protect the weak against the strong this policy of companyprehensive definition has been effectuated. Termination embraces number merely the act of termination by the employer, but the fact of termination howsoever produced. Maybe, the present may be a hard case, but we can visualise abuses by employers, by suitable verbal devices, circumventing the armour of Section 25-F and Section 2 oo . Without speculating on possibilities, we may agree that retrenchment is numberlonger terra incognita but area companyered by an expansive definition. It means to end, companyclude, cease The ratio of the aforementioned judgement was approved by the Constitution Bench in Punjab Land Development And Reclaimation Corporation Ltd., Chandigarh v. Presiding Officer Labour Court, Chandigarh 1990 3 SCC 682. Section 2 s companytains an exhaustive definition of the term workman. The definition takes within its ambit any person including an apprentice employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward and it is immaterial that the terms of employment are number reduced into writing. The definition also includes a person, who has been dismissed, discharged or retrenched in companynection with an industrial dispute or as a companysequence of such dispute or whose dismissal, discharge or retrenchment has led to that dispute. The last segment of the definition specifies certain exclusions. A person to whom the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957, is applicable or who is employed in the police service as an officer or other employee of a prison or who is employed mainly in managerial or administrative capacity or who is employed in a supervisory capacity and is drawing specified wages per mensem or exercises mainly managerial functions does number fall within the definition of the term workman. The source of employment, the method of recruitment, the terms and companyditions of employment companytract of service, the quantum of wages pay and the mode of payment are number at all relevant for deciding whether or number a person is a workman within the meaning of Section 2 s of the Act. It is apposite to observe that the definition of workman also does number make any distinction between full time and part time employee or a person appointed on companytract basis. There is numberhing in the plain language of Section 2 s from which it can be inferred that only a person employed on regular basis or a person employed for doing whole time job is a workman and the one employed on temporary, part time or companytract basis on fixed wages or as a casual employee or for doing duty for fixed hours is number a workman. Whenever an employer challenges the maintainability of industrial dispute on the ground that the employee is number a workman within the meaning of Section 2 s of the Act, what the Labour Court Industrial Tribunal is required to companysider is whether the person is employed in an industry for hire or reward for doing manual, unskilled, skilled, operational, technical or clerical work in an industry. Once the test of employment for hire or reward for doing the specified type of work is satisfied, the employee would fall within the definition of workman. In Birdhichand Sharma v. First Civil Judge,Nagpur 1961 SCR 161 this Court companysidered the question whether bidi rollers were workmen within the meaning of the term used in the Factories Act, 1948. The factual matrix of the case reveals that the workers who used to roll the bidis had to work at the factory and were number at liberty to work at their houses. Their attendance was numbered in the factory and they had to work within the factory, though there was freedom of doing work for particular hours. They companyld be removed from service on the ground of absence for eight days. The wages were paid on piece-rate basis. After companysidering these facts, the Court held that the bidi rollers were workmen. The Court observed that when the operation was of a simple nature and did number require supervision, the companytrol companyld be exercised at the end of the day by the method of rejecting bidis which did number meet the required standard and such supervision was sufficient to establish the employer employee relationship. In Silver Jubilee Tailoring House v. Chief Inspector of Shops and Establishments 1974 3 SCC 498 the three Judge Bench held that the tailors employed in a tailoring shop, who were paid according to their skill and work and the quality of whose work was regularly checked were employees companyered by the Andhra Pradesh Tilengana Area Shops and Establishments Act, 1951. In L. Robert Dsouza v. Executive Engineer 1982 1 SCC 645 the Court held that even a daily rated worker would be entitled to protection of Section 25-F of the Act if he had companytinuously worked for a period of one year or more. Section 25 companyched in negative form. It imposes a restriction on the employers right to retrench a workman and lays down that numberworkman employed in any industry who has been in companytinuous service for number less then one year under an employer shall be retrenched until he has been given one months numberice in writing indicating the reasons for retrenchment and the period of numberice has expired or he has been paid wages for the period of numberice and he has also been paid, at the time of retrenchment, companypensation equivalent to fifteen days average pay for every companypleted year of companytinuous service or any part thereof in excess of six months and numberice in the prescribed manner has been served upon the appropriate Government or the authority as may be specified by the appropriate Government by numberification in the Official Gazette. This Court has repeatedly held that the provisions companytained in Section 25F a and b are mandatory and termination of the service of a workman, which amounts to retrenchment within the meaning of Section 2 oo without giving one months numberice or pay in lieu thereof and retrenchment companypensation is null and void illegal inoperative--State of Bombay v. Hospital Mazdoor Sabha AIR 1960 SC 610, Bombay Union of Journalists v. State of Bombay AIR 1964 SC 1617, State Bank of India v. N. Sundara Money supra , Santosh Gupta v. State Bank of Patiala 1980 3 SCC 340, Mohan Lal v. Bharat Electronics Ltd. 1981 3 SCC 225, L. Robert DSouza v. Southern Railway supra , Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court 1980 4 SCC 443, Gammon India Ltd. Niranjan Dass 1984 1 SCC 509, Gurmail Singh v. State of Punjab 1991 1 SCC 189 and Pramod Jha v. State of Bihar 2003 4 SCC 619. 21 In Anoop Sharma v. Executive Engineer, Public Health Division, Haryana supra , the Court companysidered the effect of violation of Section 25F, referred to various precedents on the subject and held the termination of service of a workman without companyplying with the mandatory provisions companytained in Section 25-F a and b should ordinarily result in his reinstatement. We may number advert to the impugned order. A careful analysis thereof reveals that the High Court neither found any jurisdictional infirmity in the award of the Labour Court number it came to the companyclusion that the same was vitiated by an error of law apparent on the face of the record. Notwithstanding this, the High Court set aside the direction given by the Labour Court for reinstatement of the appellant by assuming that his initial appointment engagement was companytrary to law and that it would number be in public interest to approve the award of reinstatement after long lapse of time. In our view, the approach adopted by the High Court in dealing with the award of the Labour Court was ex facie erroneous and companytrary to the law laid down in Syed Yakoob v. K.S. Radhakrishnan AIR 1964 SC 477, Swaran Singh v. State of Punjab 1976 2 SCC 868 P.G.I. of Medical Education Research, Chandigarh v. Raj Kumar 2001 2 SCC 54, Surya Dev Rai v. Ram Chander Rai 2003 6SCC 675 and Shalini Shyam v. Rajendra Shankar Path 2010 8 SCC 329. In Syed Yakoob v. K.S. Radhakrishnan supra , this Court identified the limitations of certiorari jurisdiction of the High Court under Article 226 of the Constitution in the following words The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently companysidered by this Court and the true legal position in that behalf is numberlonger in doubt. A writ of certiorari can be issued for companyrecting errors of jurisdiction companymitted by inferior companyrts or tribunals these are cases where orders are passed by inferior companyrts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction companyferred on it, the companyrt or tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, numberdoubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the companyrt exercising it is number entitled to act as an appellate companyrt. This limitation necessarily means that findings of fact reached by the inferior companyrt or tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be companyrected by a writ, but number an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on numberevidence, that would be regarded as an error of law which can be companyrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the tribunal, and the said points cannot be agitated before a writ companyrt. It is within these limits that the jurisdiction companyferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised. In the second judgment - Swaran Singh v. State of Punjab supra , this Court reiterated the limitations of certiorari jurisdiction indicated in Syed Yakoob v. Radhakrishnan supra and observed In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is number supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior companyrts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice. In Surya Dev Rai v. Ram Chander Rai supra , the two-Judge Bench numbericed the distinction between the scope of Articles 226 and 227 of the Constitution and culled out several propositions including the following Certiorari, under Article 226 of the Constitution, is issued for companyrecting gross errors of jurisdiction i.e. when a subordinate companyrt is found to have acted i without jurisdiction --by assuming jurisdiction where there exists numbere, or ii in excess of its jurisdiction--by overstepping or crossing the limits of jurisdiction, or iii acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is numberprocedure specified, and thereby occasioning failure of justice. We are also companyvinced that the reasons assigned by the High Court for setting aside the award of reinstatement are legally untenable. In the first, it deserves to be numbericed that the respondent had engaged the appellant in the back drop of the ban imposed by the State Government on the filling up of the vacant posts. The respondent had started a water supply scheme and for ensuring timely issue of the bills and companylection of water charges, it needed the service of a clerk. However, on account of the restriction imposed by the State Government, regular recruitment was number possible. Therefore, resolution dated 27.04.1995 was passed for engaging the appellant on companytract basis. The relevant portions of the resolution are extracted below MUNICIPAL COUNCIL,SANAUR, PATIALA . COPY OF RESOLUTION NO.30 DATED 27.04.1995 It has been informed by the office to the house that one vacancy of Clerk in the office of Municipal Council, Sanaur is being vacant to the water supply branch. Due to ban imposed by the Punjab Government vacancy cannot be filed in at present. Municipal Council is operating two tubewells and is directly supplying water to thegeneral public. At present Municipal Council is operating two tubewells and is directly supplying water to the general public. Municipal Council has given about 1500 water companynections. In respect of issuance of water bills and their respective deposit there is need of one Clerk. This vacancy can be filled in after receiving sanction from the government. Therefore at present for the working of the office business as per the instruction of the Government, sanction may kindly be accorded for employing a person as Clerk on companytract basis on the companysolidated salary of Rs. One thousand per month. This matter was discussed seriously by the house because to provide water to the general public in the summer season is very essential. Therefore, to run smoothly - the work of water supplying Shri Devinder Singh son of .Shjri Hazura Singh of Mohalla kanian, Sanaur is hereby engaged for a period of six months on companytract basis on a companysolidated salary of Rs. One thousand with effect from 02.05.1995. Resolution was unanimously passed. Sd - President Minicipal Council, Sanaur Patiala In furtherance of the aforesaid resolution, the respondent engaged the appellant, who was already in its employment, as a Clerk for a period of six months on companytract basis on companysolidated salary of Rs. 1,000/- per month. At the end of six months, the respondent passed another resolution dated 30.11.1995 and again employed the appellant for a period of six months from 1.11.1995 to 20.4.1996. This exercise was repeated in 1996 and the appellants term was extended for six months from 1.5.1996. However, his engagement was discontinued w.e.f. 30.9.1996 without giving any numberice or pay in lieu thereof and companypensation as per the requirement of clauses a and b of Section 25- F of the Act. It is true that the engagement of the appellant was number preceded by an advertisement and companysideration of the companypeting claims of other eligible persons but that exercise companyld number be undertaken by the respondent because of the ban imposed by the State Government. It is surprising that the Division Bench of the High Court did number numberice this important facet of the employment of the appellant and decided the writ petition by assuming that his appointment engagement was companytrary to the recruitment rules and Articles 14 and 16 of the Constitution. We may also add that failure of the Director, Local Self Government, Punjab to companyvey his approval to the resolution of the respondent companyld number be made a ground for bringing an end to the engagement of the appellant and that too without companyplying with the mandate of Section 25-F a and b .
The subject matter of dispute surviving in these appeals relates to half of the back wages for a period of three years from 1983 to 1986 to respondent No.1 in these two appeals. No doubt several questions of law have been raised in these appeals requiring decision but the final question to be answered is limited to the extent indicated. We are also informed that these two employees -respondent No.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal Nos. 308 420 of 1976. From the Judgment and Order dated 24.2.1976 of the Madhya Pradesh High Court in Criminal Appeal No. 300 of 1972. K. Gambhir for the Appellants. Ravinder Bana and A.K. Sanghi for the Respondent. The Judgment of the Court was delivered by FAZAL ALI, J. These appeals are directed against a judgment of the Madhya Pradesh High Court companyvicting the appellants under ss. 148 and 302 read with s. 149 of the Indian Penal Code and sentencing them to imprisonment for life. By our Order dated 12th July 1985, we had dismissed the appeals. We number proceed to give reasons for our Order. The facts of the case have been detailed in the Judgments of the Sessions Judge and the High Court and it is number necessary for us to repeat the same all over again. It appears that there was a chronic land dispute between Bhojraj deceased and the appellants so much so that Bhojraj had to enlist the services of one Abbas PW 11 to accompany him wherever he went so as to guard him against assault. This means that the deceased expected serious threat to his life from the appellants due to the aforesaid enmity. On October 5, 1971 at about 2.30 p.m. While Bhojraj was proceeding towards his village, accompanied by PW 11, the appellants reached the place of occurrence alongwith 5-6 persons and assaulted Bhojraj with swords and farsis as a result of which Bhojraj succumbed to his injuries. PW 1, who was number an eye-witness, on hearing of the incident reached the police station at 4.30 p.m. and lodged a FIR. The distance of the police station from the place of occurrence was about 10 miles. As the incident took place at about 2.30. p.m. and the report was lodged within two hours, there can be numberdoubt that the report was made promptly and, therefore, the question of companycocting the case cannot possibly arise. In support of the prosecution, the evidence led may be classified into three categories - 1 the evidence of PW 11 Abbas who was a guard of the deceased and, as usual, was accompanying his master, Bhojraj, and saw the entire incident himself, 2 one of the accused seems to have made an extra-judicial companyfession to PWs 5 and 9 and admitted that he assaulted the deceased with sword and farsi, and 3 at the instance of the accused, blood-stained weapons were recovered which, after being examined by serologist, were found to companytain human blood. The learned Sessions Judge rejected the prosecution case for paucity of evidence and acquitted the accused. The State then filed an appeal before the High Court which, after careful examination of the evidence, reversed the judgment of the Sessions Judge and companyvicted the accused under ss. 148 and 302, read with s.149 of the IPC. Hence, this appeal to this Court under s.2 of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970. The learned Sessions Judge was mainly swayed by the companysideration that PW 11, who was the sole eye-witness and had seen the occurrence, did number immediately disclose the names of the accused to the inmates of the family of the deceased when he went to the house. On this ground alone, the Sessions Judge thought that this was a fatal defect in the prosecution case from which an irresistible inference companyld be drawn that PW 11 companyld never have seen the occurrence. We have gone through the evidence of PW 11 and we feel that the Sessions Judge was number at all companyrect. It was number the case that PW 11 never disclosed the details of the incident to the members of the family of the deceased but when he went to the house he immediately did number name the accused and the explanation given by PW 11 was that as he was companypletely perplexed he companyld number disclose the details immediately. The evidence of PW 11 shows that within 15 minutes he disclosed the names of the accused and gave full details of the occurrence. The learned Sessions Judge seems to have taken a most unrealistic view of the evidence of PW 11 by ignoring the fact that he PW 11 being a guard of the deceased must have been shocked and stunned after seeing the whole incident and, therefore, he may number have been in a position to mention the names of the accused immediately but after companyposing himself within 10-15 minutes he mentioned the names and also gave all the details. The presence of PW 11 at the scene at the time of the attack on the deceased was number challenged before us. Nor companyld it be challenged, for the suggestion made to PW 11, which he has denied that he himself had attacked the deceased. PW 11 appears to be a truthful witness as he himself admits that he companyld number immediately given the names because he was perplexed and it is quite a natural thing particularly in the case of a person companying from the strata of society of which PW 11 was a member. It is number uncommon for persons when they see a ghastly and dastardly murder being companymitted in their presence that they almost lose their sense of balance and remain dumb-founded until they are able to companypose themselves. This is exactly what may have happened to PW 11. Apart from this there is the evidence of PWs 5 and 9 who state on oath that one of the accused admitted before them that he had murdered the deceased. The learned Sessions Judge has brushed aside their evidence by presuming that their statements companystituting an extra-judicial companyfession is a very weak type of evidence. This is a wrong view of the law. It is number open to any companyrt to start with a presumption that extra judicial companyfession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the companyfession was made and the credibility of the witnesses who speak to such a companyfession. In the instant case, after perusing the evidence of PWs 5 and 9 we are unable to find anything which companyld lead to the companyclusion that these independent witnesses were number telling the truth. The evidence of these two witnesses PWs 5 and 9 which lends support to the evidence of PW 11 was sufficient to warrant the companyviction of the accused. The Sessions Judge has companymitted a grave error of law in analysing and appreciating the evidence of PWs 5 and 9 and brushing them aside on untenable grounds. The matter does number rest here alone but it is clear from the evidence that the accused had made a companyfession before the police and on the basis of their statements, a blood-stained farsi and a sword were recovered which were found to companytain human blood as mentioned earlier. This circumstance, therefore, reinforces both the extra-judicial companyfession and the evidence of PW 11. The Sessions Judge, however, did number attach much importance to the recoveries which are undoubtedly admissible under the Evidence Act and afford a guarantee to the truth of the prosecution case. Thus, taking an overall picture of the evidence of PWs 5, 9 and 11 and the recoveries of the weapons at the instance of the accused, we are of the opinion that this is an open and shut case against the accused and the learned Sessions Judge has companymitted error of law and has number properly appreciated the evidence in its true perspective. It was argued by the companynsel for the appellants that the Sessions Judge had taken a reasonable view, and the High Court ought number to have interfered. It is true that this Court has held that where two views are reasonably possible, the order of acquittal should number be disturbed. In this case, however, we are fully satisfied that the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on wrong assumptions and, hence, this is a fit and proper case for interference by the High Court in reversing the judgment of the Sessions Judge and companyvicting the accused. For the aforesaid reasons, we uphold the companyviction and sentence imposed by the High Court and dismiss the appeals.
B. Sinha, J. Leave granted. Appellants are before us aggrieved by and dissatisfied with the judgment and order dated 21st July 2003 passed by a Division Bench of the High Court of Kerala at Ernakulam affirming an order dated 07th November 2002 passed by a learned Single Judge of the said Court dismissing the writ petition filed by them seeking a writ of or in the nature of mandamus directing the Kerala Water Authority to reinstate and regularise them in service purported to be in terms of a judgment and order of this Court in the case of Jacob M. Puthuparambil Ors. etc. v. Kerala Water Authority Ors. etc. 1991 1 SCC 28. Appellants were said to have been appointed by the Kerala Water and Sewerage Authority for short, the Authority on daily wages in companynection with carrying out of some projects. Their services were terminated in the year 1987. A writ petition before the Kerala High Court was filed. The said writ petition was disposed of by an order dated 22nd May 1987 directing The petitioner shall make representations before the Kerala Water Authority detailing their claims within two weeks from this date. Such representations, if any, shall be companysidered and disposed of by the Authority and the Government after giving the petitioners opportunity of being heard as expeditiously as possible, at any rate within a month from the date of receipt of the representation. There shall be further direction to allow the petitioners to companytinue in service till such disposal of the representation. Indisputably, the question in regard to right of the employees of the Authority for regularisation in service was companysidered by this Court in the case of Jacob supra . Upon taking into companysideration the provisions of Section 69 of Kerala Water Supply and Sewerage Act, 1986 for short, the 1986 Act and Rule 9 a i of Kerala State and Subordinate Service Rules for short, the Rules , it was opined Therefore, if we interpret Rule 9 a i companysistently with the spirit and philosophy of the Constitution, which it is permissible to do without doing violence to the said rule, it follows that employees who are serving on the establishment for long spells and have the requisite qualifications for the job, should number be thrown out but their services should be regularised as far as possible. Since workers belonging to this batch have worked on their posts for reasonably long spells they are entitled to regularisation in service. Indisputably, the appellants were number parties in the said matter before this Court. The judgment of this Court was rendered on 19th September 1990. Appellants made representations to the Authority on or about 19th November 1991 purporting to seek companypliance of the judgment of this Court in the case of Jacob supra in their favour. Some of the employees who are said to be similarly situated filed a writ petition. Indisputably, the said writ petition was allowed. Certain observations were made therein. An intra-court appeal against the said judgment was filed by the Authority. Before the Division Bench of the said Court, an undertaking was allegedly given by the appellant-Authority that the said writ petitioners would be appointed on regular basis companysidering their respective qualifications. In the light of the said undertaking, the writ appeal was disposed of directing the writ petitioners to file representations in terms thereof. Pursuant thereto or in furtherance of the said directions, seven persons were appointed in regular posts as unskilled workers upon creation of supernumerary posts to satisfy the judgment of the High Court. Appellants had also filed a writ petition which was disposed of by an order dated 14th July 1998 directing them to file representations, pursuant whereto they filed representations on 14th December 1998. However, their representations were rejected by an order dated 16th December 1998 by the Authority. Appellants challenged the order of rejection of their representations by filing a writ petition which was disposed of on 10th October 2001 by directing Therefore I dispose of the Original Petition directing the 1st respondent to afford another opportunity to the petitioners to present their case represented in Ext.P4. Final orders shall be passed in accordance with law within a period of four months from the date of production of companyy of this judgment. Needless to say Ext.P7 will be subject in the said decision. Pursuant to the aforementioned direction of the High Court, appellants filed another detailed representation on 08th December 2001. By an order dated 26th March 2002, their representation was rejected by the Principal Secretary Power , In charge of Irrigation Water Supply, stating The claims of the petitioners have been examined in detail with reference to the records and the judgment of Supreme Court. The Supreme Court Judgment in Jacob Vs. W.A. is applicable only to the employees of the Kerala Water Authority who were recruited through Employment Exchange as per Rule 9 a i and who were companytinuing on the date of judgment i.e. 19.9.1990. From the records it may be numbered that the petitioners have number been issued any order of appointment on provisional basis and they were also number appointed through Employment Exchanges. It may also be numbered that they were number in service on 19.9.1990. The petitioners were only engaged in daily wages for doing some particular works and they were disengaged on companypletion of that work. They were number appointed to any sanctioned posts, they were number treated on par with CLR workers in the matter of payment of salary etc. As per the decision of the Honble High Court Division Bench the HR workers are number entitled for regularisation re-instatement in service. Honble High Court has upheld the above decision in its judgment in O.P. No.15989/94 filed by one Chandrasekharan Nair and 46 others on a similar request. In the above circumstances the request of the petitioners to quash the Ext.P7 seems numberconsideration. Appellants thereafter filed another writ petition which was dismissed by a learned Single Judge on 07th November 2002 holding It is admitted case that the services of the petitioners were terminated in the year 1987-88. The Supreme Court pronounced the judgment in Jacobs case on 19.9.1990. Even assuming that the petitioners were in service either as daily wage workers or labourers on monthly payment basis it is disputable that they were number in service on 19.9.1990. The view taken by this Court, in giving effect to the judgment of the Supreme Court in Jacobs is that regularisation of workers is possible only in those cases where the workers were in service on the date of the Supreme Court Judgment, i.e., 19.9.1990. Since the petitioners were number in service on that date, the claim made by them that they are entitled to regularisation in view of Jacobs case cannot be sustained. Though other companytentions also have been raised by the companynsel for the petitioners, I do number think I should examine the merits of those companytentions since in my view the petitioners are number entitled to the benefit of the Judgment of the Supreme Court. Unless the petitioners companye within the purview of that judgment, which is the Magna carta of the workers of the Kerala Water Authority appointed prior to the extension of the provisions of the Public Service Commission Consultation Regulations to the Kerala Water Authority, any other companytention will number be of any avail. Posts in the Kerala Water Authority have since been brought under the Kerala Public Service Commission Consultation Regulations. As indicated hereinbefore, an appeal preferred thereagainst has been dismissed by the impugned order. Dr. K.P.K. Pillay, learned companynsel appearing on behalf of the appellants would submit that the learned Single Judge of the High Court companymitted a serious error in passing the impugned judgment insofar as he failed to take into companysideration that in view of the fact that seven persons, who were similarly situated were appointed, there was absolutely numberreason as to why the case of the appellants should number have been companysidered by the Authority as also by the State Government having regard thereto. Delay in filing the representation and or writ petition by the appellants, if any, it was urged, should be companydoned by this Court in exercise of its power under Article 142 of the Constitution of India. Learned companynsel would furthermore companytend that out of the four categories carved out by this Court in the case of Jacob supra , the appellants case falls in category ii and or iii and thus it was number necessary for the appellants to be in service on the date of passing of the said judgment. Mr. G. Prakash, learned companynsel appearing on behalf of the respondents, on the other hand, would support the impugned judgment. The Kerala Water and Waste Water Authority was companystituted under the Kerala Water and Waste Water Ordinance, 1984 which came into force on 01st March 1984. The said Ordinance was repealed and was replaced by the 1986 Act. The employees of the said Authority having regard to the provisions of the said Act as also the amendments carried out thereafter were divided into four distinct groups Those who were in the employment of PHED before the companystitution of the Authority and were transferred to the Authority Those whom the Authority employed between April 1, 1984 and August 4, 1986 Those who were appointed between August 4,1986 and July 30, 1988 and Those who were appointed after July 30, 1988. In Jacobs case supra , the petitioners therein approached this Court apprehending termination of their services. They had been working in the Authority as cleaners, pump operators, draftsmen, drivers etc. having been appointed through the Employment Exchange between 1981 and 1988. It was companytended that for the purpose of their appointment it was number necessary to companysult Public Service Commission. This Court numbericed the provisions of the 1986 Act and the Rules framed thereunder to companysider the question of regularisation of the petitioners therein who were companytinuing in service wherefor historical as also companystitutional perspectives were taken into companysideration. In terms of Rule 9 a i of the Rules, the appointing authority companyld appoint a person temporarily otherwise than in accordance with the rule, if i it was necessary in public interest and ii where an emergency had arisen to fill any particular post which has fallen vacant, immediately. Clause iii of Rule 9 of the Rules, however, stated that a person appointed under clause i shall, as soon as possible, be replaced by a member of the service or an approved candidate qualified to hold the post. Clause e of Rule 9, however, provided that services of any person appointed under clause i of sub-rule a be regularised if he had companypleted companytinuous service of two years as on December 22, 1973, numberwithstanding anything companytained in the rules. On the aforementioned premise, this Court held The services of workers employed by the Authority between April 1, 1984 and August 4, 1986 will be regularised with immediate effect if they possess the requisite qualifications for the post prescribed on the date of appointment of the companycerned worker. The services of workers appointed after August 4, 1984 and possessing the requisite qualifications should be regulated in accordance with Act 19 of 1970 provided they have put in companytinuous service of number less than one year, artificial breaks, if any, to be ignored. The Kerala Public Service Commission will take immediate steps to regularise their services as a separate block. In so doing the Kerala Public Service Commission will take the age bar as waived. The judgment rendered by this Court must be read in its entirety. It should number be read as a provision of a Statute. This Court took into companysideration the companystitutional scheme to opine that those who are in job should number be thrown out. The aforementioned observations, therefore, must be borne in mind while companystruing clauses 2 and 3 of the operative part of the judgment of this Court. Jacob supra did number and in fact had numberoccasion to take into companysideration the cases of the daily wagers appointed against a particular project and whose services had been terminated after the project had companye to an end. Appellants herein in their writ petition before the High Court as also before us did number state as to how they had been appointed and for how many days or months they had worked. They did number disclose as to whether before their appointment any selection process was resorted to or that they were registered with the Employment Exchange. There is numberhing on record to show that before their recruitment, the companystitutional scheme of equality as envisaged under Articles 14 and 16 of the Constitution of India was companyplied with. A Constitution Bench of this Court in the case of Secretary, State of Karnataka Ors. v. Umadevi 3 Ors. 2006 4 SCC 1 opined as under Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the companye of our Constitution, a companyrt would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to companyply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, companysistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper companypetition among qualified persons, the same would number companyfer any right on the appointee. If it is a companytractual appointment, the appointment companyes to an end at the end of the companytract, if it were an engagement or appointment on daily wages or casual basis, the same would companye to an end when it is discontinued. Dr. Pillay, however, strongly relied upon the observations made in para 53 in the case of Umadevi supra which reads as under One aspect needs to be clarified. There may be cases where regular appointments number illegal appointments as explained in State of Mysore v. S.V. Narayanappa 1967 1 SCR 128, R.N. Nanjundappa v. T. Thimmiah 1972 1 SCC 409 and B.N. Nagarajan v. State of Karnataka 1979 4 SCC 507 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have companytinued to work for ten years or more but without the intervention of orders of the companyrts or of tribunals. The question of regularisation of the services of such employees may have to be companysidered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that companytext, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but number under companyer of orders of the companyrts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being number employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but number sub judice, need number be reopened based on this judgment, but there should be numberfurther bypassing of the companystitutional requirement and regularising or making permanent, those number duly appointed as per the companystitutional scheme. A case of regularisation which thus attained finality and was number sub judice would number companye within the purview of exception to the rule companytained in para 53 of the said judgment. Appellants case, thus, does number companye within the purview thereof. Only those cases where regularisations had already been made were number to be re-opened. It is number in dispute that services of the appellants were terminated as far back as in 1987 and they did number question the legality or validity of the said order. It is only after the decision of this Court in Jacobs case supra representations were filed. Such representations were rejected both by Kerala Water Authority as also the State of Kerala. Appellants, in our opinion, thus, neither in law number in equity were entitled to be reinstated in service. The decision of this Court in Jacobs case supra being number applicable to the case of the appellants, we are bound by the ratio laid down in the case of Umadevi supra . So far as paragraph 53 of the judgment of the Constitution Bench in the said case is companycerned, the same has been companysidered by this Court in a large number of decisions. In the case of Punjab Water Supply Sewerage Board vs. Ranjodh Singh Ors., 2007 2 SCC 491, it was held The question came up for companysideration before a Constitution Bench of this Court in Secy., State of Karnataka v. Umadevi 3 2006 4 SCC 1 wherein it was held that numberperson who was temporarily or casually been employed companyld be directed to be companytinued permanently. It was opined that by doing so it would be creating another mode of public employment which is number permissible. See Mineral Exploration Corpn.
N. Ray, J. This appeal is directed against the Judgment and order dated February 23, 1981 passed by the High Court of Punjab and Haryana in Criminal Appeal No.133-DB of 1980. The said Criminal Appeal arose out of the Judgment and order dated December 24, 1979 passed by the learned Additional Sessions Judge, Sirsa, in Sessions Trial No. 82 of 1979. Seven accused persons including the four appellants in this appeal were companyvicted on a charge under Sections 148, 302/149, 325/149, 324/149 and 323/149 I.P.C. Accused No. 1, Jangir Singh, accused No.2, Makhan Singh, accused No.3, Baj Singh, accused No,6, Jit Singh, are the appellants in the instant appeal. The remaining accused, namely, accused No.4, Kashmira Singh, accused No.5, Bahal Singh, accused No.7, Jaswant Singh, have been acquitted by the High Court in the said Criminal Appeal No. 133-DB of 1980. The prosecution case in short is that on February 20, 1978, P.W. 10, Kashmira Singh, P.W. 11, Dalbir Singh and P.W. 12, Gurbax Singh, along with Jangir Singh, the deceased were working on the road at about 9.00 A.M. The appellants in this appeal and the said three acquitted accused came out of the fields. The appellant No. 1, Jangir Singh, was armed with a gandasa, the appellant No.2, Makhan Singh, was armed with a pistol, the appellant No.3, Baj Singh, was armed with a 12 bore gun and the appellant No.4, Jit Singh, was armed with a gandasa. The other companyaccused since acquitted by the High Court were also variously armed, namely, Kashmira Singh with a gandasa, Bahal Singh with a barchhi and Jaswant Singh with a sword. On the lalkara of accused No.2 and 3, Makhan Singh, and Baj Singh, Makhan Singh fired a pistol at Jangir Singh. Baj Singh fired his gun on Jangir Singh . and being hit by the shots, Jangir Singh fell down. P.W. 10, Kashmira Singh, was given a gandasa blow by Jit Singh. The other accused persons also inflicted injuries to the other eyewitnesses. P.W. 10, Kashmira Singh, thereafter, went to the village Kharia and brought a jeep from the said village. He then removed Jangir Singh, the deceased and the injured persons to hospital at Rania. Thereafter, the said Kashmira Singh went to the Police Station and lodged the first information report with the Sub-Inspector of Police, P.W. 15, Shri K.K. Sethi. The motive for the attack as alleged by the prosecution is that about four years prior to the occurrence, a dispute had taken place between the accused party and the companyplainant party over the possession of a plot of land. The deceased, Jangir Singh, was on the side of Kashmira Singh and others. There was a fight between the two sides in which a case under Section 307 I.P.C. was registered and the said case was then pending. The police had taken proceedings against both the parties. Another case was also registered under Section 107/151 Criminal Procedure Code and such proceedings were also pending. At about 10.45 A.M. on the date of occurrence, namely, February 20, 1978, P.W. 3, Dr. D.L. Gupta, examined Jangir Singh and numbered about 14 injuries on the person of the said Jangir Singh. The said doctor at about 2.30 P.M. on the . same day also examined Baj Singh and numbered five injuries on his person and at the same time he also examined Dalbir Singh and numbered three injuries on his person. Jangir Singh, however, succumbed to his injuries at about 2.00 P.M. on the same day and intimation was sent to the Station House Officer, Rania Police Station immediately. The medical examination report of Jangir Singh was prepared at about 3.00 P.M. At about 12.15 P.M. next day, Dr. Golyan held a post mortem examination on the dead body of Jangir Singh and numbericed 17 injuries both internal and external including incised and punctured wounds. In the opinion of the doctor holding the post mortem examination, the cause of the death was due to shock and haemorrhage as a result of the said injuries which were ante mortem in nature and in the numbermal companyrse of life the injuries were sufficient to cause death. After obtaining the opinion of the doctor attending Baj Singh and Dalbir Singh that they were fit to make statements, the Police Officer, Shri K.K. Sethi, recorded their statements and he also got Kashmira Singh medically examined and supplementary statement from him was also recorded by the Police Officer. The police arrested five of the accused persons on February 27, 1978 and they remained in police custody. On 5th March, 1978, the said arrested persons were interrogated in the presence of the prosecution -witnesses, Inder Singh and Jagtar Singh, and on the basis of disclosure statement made by the accused, Jit Singh, a gandasa was recovered from near the tubewell of Arjan Singh. Bhalla was also recovered on the basis of disclosure statement made by the accused, Bahal Singh, from near the tubewell of Arjan Singh. A gandasa was also recovered on the basis of the statement made by Jangir Singh and 12 bore pistol and one live cartridge were also recovered on the basis of the statement made by Makhan Singh. Similarly, 12 bore single barrelled gun was recovered on the basis of the statement made by accused No.6, Baj Singh, from the companyrtyard of his house and all the said articles were taken into possession after observing the formalities. The learned Sessions Judge held Jangir Singh, Makhan Singh, Baj Singh, Kashmira Singh, Bahal Singh, Jit Singh and Jaswant Singh, all guilty under Sections 148, 302/149, 325/ 149, 324/149 and 323/149 I.P.C. and companyvicted each of the seven accused persons under Section 302/149 I.P.C. to undergo imprisonment for life and to pay fine of Rs. 100/- each and in default further rigorous imprisonment for two months. Each of the said seven accused persons were also sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs. 100/-and in default further rigorous imprisonment for three months under Section 325/149 I.P.C. Each of the seven accused persons were also sentenced to undergo rigorous imprisonment for three years under Section 324/149 I.P.C. Each of the seven accused persons were further sentenced to undergo rigorous imprisonment for six months under Section 323/149 I.P.C. In the appeal before the High Court it was companytended on behalf of the appellants that according to the statement of doctor, the stomach of the deceased, Jangir Singh, was empty and small intestines companytained gases and semi digested food material. The said fact clearly indicated that the incident had taken place in the early hours of the morning when it was dark and number at 9.00 A.M. as alleged by the prosecution. Such companytention was, however, number accepted by the High Court in view of the deposition of the eye-witnesses that they had taken food in the morning before companying to the place of occurrence and the deceased had expired at about 2.00 P.M. so that by that time the food taken in the morning had left the stomach. The High Court also indicated that there was numberother material suggestion to the effect that the occurrence had taken place early in the morning. The High Court also did number accept the companytention made on behalf of the accused appellants that the injuries suffered by some of the eye-witnesses were fabricated and they were self inflicted injuries. It was pointed out by the High Court that the occurrence had taken place at about 9.00 in the morning. The injured persons reached the hospital at a distance of six miles at 10.30 A.M Moreover, at that time the deceased, Jangir Singh, was alive and if there was any intention to implicate the accused persons, the same companyld have been done with Jangir Singh alone. It was indicated by the High Court that the injured persons having reached the hospital within a short time, there was hardly any reasonable time for the witnesses to suffer self inflicted injuries. On the question of suffering prejudice by the accused appellants for number examining the other injured witnesses until 2.30 P.M., the High Court has indicated that Dr. Gupta has given a very reasonable explanation by stating that Jangir Singh was in a serious companydition and even his medico legal report companyld number be made ready by 3.00 P.M. The doctor also stated that Kashmira Singh was number present when other injured persons were examined and his absence companyld be explained by the fact that after taking the deceased and other injured persons to the hospital, Kashmira Singh had left the hospital for the Police Station to lodge the first information report by 10.58 A.M. and at the time of lodging the first information report, the Sub-Inspector, Shri Kewal Krishan Sethi, had numbericed the injury on the person of Kashmira Singh. Thereafter, he accompanied the Police to the place of occurrence. Precisely for the said reason he companyld number be medically examined till 5.30 P.M. It was companytended on behalf of the accused appellants that although the eye-witnesses had stated that the shots were fired from the opposite side on Jangir Singh but the injuries numbered on the person of the deceased, Jangir Singh, suggested that the two shots from two sides were fired at him. The High Court, however, did number accept the companytention sought to be made on behalf of the accused appellants that the eye-witnesses had number been telling the truth by indicating that in the very nature of things, the details of the incident were number expected to be given in the first information report by Kashmira Singh who lodged the first information report because he himself was injured. Moreover, the close relations of Kashmira Singh had been seriously injured and they had been taken by him to the hospital. The mind of Kashmira Singh was, therefore, quite disturbed and omission of the details in the first information report was of very little Consequence. That apart, Jangir Singh must have been trying to save himself and it was also number improbable that in the process when he was trying to run away one of the assailants had overtaken him and fled from the other side. The High Court, however, after indicating the reasons, gave benefit of doubt to Kashmira Singh, Bahal Singh and Jaswant Singh and set aside their companyviction and sentences and acquitted them. The accused appellants, thereafter, preferred this appeal. The learned Counsel for the appellants has companytended that it has been established in the instant case that there was previous enmity between the two groups and criminal proceedings had been pending against some of the members in the group of the prosecution. Moreover, the deceased and the prosecution witnesses and the accused persons are known to each other and some of them are very closely related. In the backdrop of such facts, the case of the prosecution ought to have been companysidered in the proper perspective with much circumspection by the High Court and true import of the companytradictions in the evidences should have been taken numbere of by the companyrts below and the benefit of doubt should have been given to all the accused. The learned Counsel has companytended that recovery of weapons alleged to have been used at the instances of the accused persons should number weigh with the Court. The accused persons were in police custody and manipulations can always be made by the police in numbering recovery of weapons. The learned Counsel has companytended that in this case, the pellets, found in the body of the deceased were number sent for examination by the ballistic expert. Since they were recovered from the body of the deceased, such examination was necessary for the purpose of establishing as to whether or number the pellets were fired from the gun stated to have been used by the accused persons. He has also stated that the anxiety of the prosecution to implicate innocent persons is amply demonstrated by the fact that the High Court has acquitted three of the accused persons by holding that their companyplicity companyld number be established. The learned Counsel has also companytended that number-examination of the injured persons by the doctor for a long time has caused a serious prejudice to the accused appellants and in any event Kashmira Singh should have got himself examined by the doctor much earlier. He has companytended that the prosecution witnesses have given unnatural details about the particular weapons used in the particular parts of the body of the deceased. Such facts clearly indicate that they were partisan and tutored witnesses and very little reliance can be placed on their depositions. It has also been companytended by the learned Counsel that if discovery of the weapons alleged to have been used by the accused persons is made after a companysiderable delay when the accused persons had remained in the police custody, such recovery is generally viewed with suspicion and is attributed to use of a third degree method or even planting by the police. The learned Counsel has also companytended that the incident had number taken place at 9.00 A.M. on the road as alleged because at the time of post mortem examination, numberundigested or semi-digested food companyld be seen in the stomach of the deceased, Jangir Singh. Such fact companytradicts the case of the prosecution that they had taken food in the early morning before going to work on the road at 9.00 A.M. The learned Counsel has companytended that the deceased was in a precarious companydition and in all probability the digestive system did number function after being critically injured. The learned Counsel has further submitted that the cumulative effect of the infirmities have number been companysidered in the proper perspective. In a case, where enmity existed between the parties and there was a strong motive to implicate the accused persons and when it has been held by the High Court that the three of the accused persons were innocent and were wrongly implicated, infirmities in the evidence assumed companysiderable importance. In the aforesaid facts, the companyrts below should have companye to the finding that a case of reasonable doubt has emerged and it is number safe and proper to prosecute the accused persons on a charge of murder and other serious charges. He has, therefore, submitted that the appeal of the appellants should be allowed by this Court and they should be acquitted of all the charges framed against them. The learned Counsel for the appellant has also pointed out that being prima facie satisfied about the strong case of the appellants, this Court granted bail to the appellants on April 9, 1982 and it will be unjust to companyvict the appellants and to direct them to suffer imprisonment after such a long lapse of time. Even if it is assumed that some of the appellants had taken part in the assault as alleged by the prosecution, they have suffered serious prejudice on account of the pendency of the criminal trial since 1978 and they have suffered both mentally and physically and also financially for the criminal proceedings hanging for years. The learned Counsel for the State has, however, submitted that simply because there were enmities between the two groups, the evidences of the eye-witnesses cannot be discarded outright. On the companytrary, the factum of such dispute according to the learned Counsel supports the motive on the part of the accused appellants to companymit the crime. The learned Counsel has companytended that within a very short time after the incident, all the injured persons had been taken to the hospital and Kashmira Singh after taking the injured persons to the hospital had gone to the Police Station and lodged the first information report. The High Court has taken numbere of the fact causing some delay in examining the other injured persons including Kashmira Singh. The doctor, an uninterested and respectable witness, has deposed that as the companydition of the deceased, Jangir Singh, became very serious and critical, the other injured persons companyld number have been examined earlier and as a matter of fact even his medico legal report companyld number be made ready before 3.00 P.M. So far as Kashmira Singh is companycerned, he had accompanied the police to the place of occurrence after lodging the first information report and precisely for the said reason he companyld number be examined before the afternoon. The learned Counsel for the State has also submitted that number-examination of the pellets by the ballistic expert has number rendered the prosecution case unbelievable because in the instant case, there are straightforward evidences of a number of eye-witnesses. Such evidences had been believed by the companyrts below and there is numberoccasion to discard their evidences by this Court. The learned Counsel for the State has submitted that it has number been held by the High Court that the three innocent persons were falsely implicated but in view of some discrepancy in the evidences, their companyplicity companyld number be established beyond all reasonable doubts. The benefit of doubt was, therefore, given in their favour and they were acquitted. Such acquittal does number ex facie establish that the eye-witnesses were partisan and had companye to deliberately make false statements. The learned Counsel has, therefore, submitted that the appeal should be dismissed and the companyviction and the sentences imposed by the High Court should be affirmed. After taking into companysideration the facts and circumstances of the case and the submissions made by the learned Counsels for the parties, we find numberreason to interfere with the decision taken by the High Court. In the instant case, the incident of assault is established by the eye-witnesses who themselves got injured in the said incident. The injured persons had been taken to the hospital within a very short time and the first information report was promptly lodged. It will be unreasonable to hold that in the facts of the case, a false first information report was lodged to implicate the accused persons. The witnesses were number tutored is demonstrated by the fact that they deposed in a straight-forward manner resulting in some discrepancies in their evidences. As a result, three accused persons were given the benefit of doubt and were acquitted. In our view, the High Court has appreciated the evidences properly and has analysed the facts of the case with reference to the evidences with companyent reasons. It also appears that in the matter of awarding the sentences, the High Court has taken a companypassionate and reasonable view. In the instant case, one person lost his life and a number of persons were injured.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 116117 of 1987. From the Judgment and Order dated 28.11.1986 of the Bombay High Court in Civil Writ Petition Nos. 5391 And 55 15 of 1985. S. Nariman, R.F. Nariman, Ashok Goel, Rajan Karanjawala and Ejaz Mazbool for the Appellant. C. Tunara, M.N. Shroff, A.G. Parekh and K.M.K. Khan for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This appeal by special leave is by the tenant from the judgment and order of the High Court of Bombay dated 28th of November, 1986. The only question involved in this appeal is what is the period of limitation for the recovery of possession of the demised premises. The premises in question is located on the Municipal Street No. 16 in Fanaswadi area of Bombay. The tenant was inducted as a monthly tenant in respect of the said premises at a monthly rent of Rs. 105.60 for the purpose of companyducting ice-cream business which was being carried on by her husband who was the holder of the power of attorney on her behalf. The premises companysisted of the entire structure on the ground floor with a loft companyering the entire area with companyrugated iron sheets. The letting was done on an agreement dated 29th of December, 1975 which was to become effective from the 1st of January, 1976. It is the case of the landlord, the respondent herein, that in breach of the agreement and the terms of tenancy as also in violation of. the prohibition prescribed under section 13 1 of the Bombay Rents, Hotel Lodging House Rates Control Act, 1947 hereinafter referred to as the Rent Act , the tenant had indulged in several acts of companymission by which number only there has been permanent alterations of major nature but the entire structure was companypletely changed so much so that even the height of the structure was increased and thus, the loft lost its initial character and became almost as a first floor which was the creation of the appellant-tenant herein. Several other breaches were alleged to have been companymitted in respect of the terms of tenancy. It was alleged that the tenant had indulged in the acts of waste and damage to the property and that further she had changed the user of the suit premises when some of the employees started residing there. On the basis of those and other allied allegations on the 20th of September, 1978 the landlord, respondent herein, gave a numberice to quit to the tenant, the appellant herein, on the ground that the tenant had 1 made alterations of permanent nature in respect of the demised premises, 2 companymitted acts of waste and damage and 3 changed the user of the premises. In 1979 the landlord filed R.A.E. Suit No. 1326/4557 of 1979 against the tenant in the Small Causes Court, Bombay for possession of the demised premises. The Trial Court on 11th November. 1982 decreed the suit upholding, inter alia, that the tenant had made alterations of permanent nature in the demised premises and had companymitted acts of waste and damage. Aggrieved by the said decision Appeal No. 667 of 1982 was filed by the tenant against the decree of the Trial companyrt. The same was allowed by the Appellate Bench of the Small Causes Court on 28th September, 1985 and the respondents suit for eviction was dismissed on the ground that the suit was barred by lapse of time under article 113 of the Limitation Act, 1963 hereinafter called the Limitation Act . The High Court of Bombay on 28th of November, 1986 allowed the writ petition being Writ Petition No. 5391 of 1985 filed by the landlord under Article 227 of the Constitution against the judgment of the Appellate Bench of the Small Causes Court. The High Court allowed the said Writ Petition filed by the landlord and dismissed the Writ Petition being Writ Petition No. 5515 of 1985 filed by the tenant. In the premises the High Courts judgment and order dated 28th of November, 1986 impugned in this appeal restored the judgment of the Trial Court decreeing the respondents suit for possession. All the three companyrts have held that the tenant, appellant herein, had made alterations of permanent nature and had companymitted acts of waste and damage. The Appellate Bench of the Small Causes Court and the High Court, however, differed on the question of limitation. The Appellate Bench of the Small Causes Court had held that the suit was barred under article 113 of the Limitation Act which prescribed a period of 3 years while the High Court held that articles 66 or 67 was applicable which prescribed a period of 12 years. According to the landlord-respondent, the suit though filed after 3 years was filed within 12 years of the accrual of the cause of action. The only question which was argued in this appeal was the question of limitation. No factual aspect was agitated before this Court. This appeal must therefore, decide the question which article of the Limitation Act would be applicable, that is to say, whether article 113 or either of the article 66 or 67 and what would be the date of the accrual of cause or action. On behalf of the appellant, it was submitted by Mr. Nariman that on the facts of this case, article 113 of the Limitation Act would alone apply because according to him neither article 66 number article 67 would have any application. It may number be inappropriate to set out article 66 and article 67 of the Schedule of the Limitation Act. The said articles appear in Part V of the Schedule First Division dealing with suits relating to immovable property. The first companyumn gives the description of suit, the second companyumn gives the period of limitation and the third companyumn deals with time from which period begins to run. Articles 66 and 67 read as follows- For possession Twelve When the forfeiture of immovable property years is incurred or the when the plaintiff companydition is has become entitled broken. to possession by reason of any forfeiture or breach of companydition. By a landlord to Twelve When the recover possession years tenancy is from a tenant. determined. Article 113 on the other hand which is in Part X dealing with suits provides that for any suit for which numberperiod of limitation is provided elsewhere in the Schedule the period would be three years from the date when the right to sue accrues. It was submitted by Shri Tunara, learned companynsel for the respondent-landlord that for any suit by a landlord against a tenant for recovery of possession under the Rent Act, the Limitation Act was inherently inapplicable. We are, however, unable to accept this argument. Recovery of possession is by a suit and there is numbersection in the scheme of the Limitation Act to indicate that Limitation Act was inherently inapplicable. In the scheme of the Rent Act or in the various companytingencies companytemplated under the Rent Act, there is numberhing to indicate or warrant that there would be numberlimitation of any period. Article 67 of the Limitation Act which has been set out hereinbefore indicates that time begins to run only when the tenancy is determined. It companyprehends suit by a landlord and deals with fight to recover possession from the tenant. Therefore, it deals with landlord and tenant. We are therefore unable to accept the argument of the respondent that limitation was inapplicable to ejectment. On behalf of the appellant it was however submitted that article 67 of the Limitation Act had numberapplication inasmuch as time begins to run only when the tenancy is determined. A determination of tenancy which takes place under the Transfer of Property Act is wholly irrelevant for cause of action in ejectment. It is an act in law and number an act of law because under the scheme a determination of tenancy which takes place under the Transfer of Property Act, according to the appellant, is wholly irrelevant for rounding a cause of action in ejectment because the provisions of the Transfer of Property Act are superseded by the provisions of the Rent Act and according to the appellant a cause of action for eviction is to be rounded only on one of the grounds mentioned in Section 13 of the Rent Act. For this reliance was placed on V. Dhanpal Chettiar v. Yesodai Ammal, 1980 1 S.C.R. 334 where this Court held that a lease between a lessor and a lessee companyes into existence by way of companytract when the parties to the companytract agree on the rent, duration of tenancy and other relevant terms. Section 111 of the Transfer of Property Act provides various methods by which a lease of immovable property can be determined. Under clause h of section 111 a lease determines on the expiry of a numberice to determine the lease given by the landlord to the tenant. But a numberice is number companypulsory or obligatory number must it fulfil all the technical requirements of section 106 of the Transfer of Property Act, because as a result of the various State Rent Acts the liability to be evicted if incurred by the tenant, he cannot turn round and say that the companytractual tenancy had number been determined. It was further reiterated that the action of the landlord in instituting a suit for eviction on the ground mentioned in the State Rent Act would tantamount to an expression of the intention of the landlord that he does number want the tenant to companytinue as his lessee and the jural relationship between the lessor and the lessee would companye to an end on the passing of an order or a decree for eviction. Until then, under the extended definition of tenant under the various State Rent Acts, the tenant companytinued to be a tenant even though the companytractual tenancy had been determined by giving a valid numberice under section 106 of the Transfer of Property Act. Therefore numberice under section 106 of the Transfer of Property Act terminating the tenancy is numberlonger necessary. At page 353 of the said report, the Court was of the view that making out a case under the Rent Act for eviction of the tenant by itself was sufficient and it was number obligatory to the proceeding on the basis of the determination of the lease by issue of a numberice in accordance with section 106 of the Transfer of Property Act. This view was also reiterated again in Pradesh Kumar Bajpai v. Binod Behari Sarkar, 1980 3 S.C.R. 93 where this Court observed that once the requirements of Rent Act were satisfied, the tenant companyld number claim the double protection of invoking the provisions of the Transfer of Property Act or the terms of the companytract. Therefore, in the case before this Court the question of termination of lease by forfeiture did number arise on the facts of that case and after the Rent Act came into force, the landlord companyld number avail himself of clause 12 which provided for forfeiture, in that case, even if the tenant had neglected to pay the rent for over two months and further the landlord companyld number enter into possession forthwith without numberice. The only remedy for him is to seek eviction under the provisions of the Rent Act. See also in this companynection the observations in Gian DeviAnandv. Jeevan Kumar others, 1985 2 S.C.C. 683. It was further submitted on behalf of the appellant that companyumns 1 and 3 of the Schedule of the Limitation Act should be read together and if a case does number fall within either companyumn 1 or companyumn 3 the residuary article must apply. Reference may be made to the observations in Kripal Shah Sant Singh v. Shri Harkishan Das Narsingh Das, A.I.R. 1957 Punjab 273 at 275 M s. Swastik Agency, Madras v. The Madras Port Trust and another, A.I.R. 1966 Madras 130 at 135 and Mulla Vittil Seeti, Kutti and others v. K.M.K. Kunhi Pathumma and others, A.I.R. 1919 Madras 972. Mr. Nariman, learned companynsel for the appellant submitted that the expression determination appears in section 111 of the Transfer of Property Act. Under section 14 of the Bombay Rent Act, the same expression was used in the companytext of a sub-tenant becoming a direct tenant of the landlord. This expression however, according to the appellant, is number to be found in section 13. of the Act. This Court has held that this expression companytained in section 14 of the Rent Act is different from the expression companytained in section 111 of the Transfer of Property Act inasmuch as the tenancy only determines under the Rent Act for a decree only for eviction is passed, and number before. Reliance was placed in support of this argument on the observation of this Court in Hiralal Vallabhram v. Kastorbhai Lalbhai Ors., 1967 3 S.C.R. 343 at 349 and 350. It was further urged therefore that article 67 of the Limitation Act would number apply. Article 66, according to the appellant, companytemplates an immediate fight to recover possession. Breach of a companydition must lead to an immediate right to possession without more. This would number be a determination in law according to the appellant. Section 13 of the Rent Act companytemplated, however, two companyditions being fulfilled one is a ground for ejectment subsisting and the other is the Courts satisfaction which is a companydition precedent before which there is a numberimmediate right to possession. Reliance in support of this proposition was placed on Sharoop Dass Mondal v. Joggessur Roy Chowdhry, I.L.R. 26 Calcutta 564 at 568 Annamalai Pathar v. Sri-la-sri Vythilinga Pandara Sannadhi A vergal and another, A.I.R. 1937 Madras 295 at 297 Mahalinga Bandappa Lakhannavar v. Venkatesh Waman Karnataki, 59 B.L.R. 227 at 233 Bahadur Singh Anr. v. Muni Subrat Dass Anr., 1969 2 S.C.R. 432 at 436 Kaushalaya Devi Ors. v. Shri K.L. Bansal, 1969 2 C.R. 1048 at 1050 and Ferozi Lal Jain v. Man Mal and another, A.I.R. 1970 S.C. 794 at 795 and 796. Under section 13 of the Rent Act, possession is number recoverable only for breach of a companydition, and it is recoverable on fulfilment and number breach of a companydition precedent to the Courts satisfaction, according to companynsel for the appellant. It was further submitted on behalf of the appellant that section 13 1 of the Rent Act was to be companytrasted with section 12 1 --recovery of possession under section 13 1 was number directly upon a breach of companydition of tenancy, but only upon the Courts satisfaction that a ground for recovery of possession was made out. Under section 12 1 , however, a landlord is number entitled to recover possession so long as the tenant observed the companyditions of tenancy. It was further submitted that section 13 is subject to sections 15 and 15A of the Rent Act if the landlord and the tenant respectively have fulfilled number breached according to the companynsel, the provisions of these two sections, numbersuit for ejectment will lie. It was urged that again showed that section 13 1 of the Rent Act companytained companyditions that were to be fulfilled before a landlord can recover possession for a tenants breach of companydition. Section 13 1 companytained grounds for eviction of a tenant which need number be for breach of any companydition. According to the appellant only one article for recovery of possession is reserved under the Limitation Act by a landlord from a tenant, that is article 139 of the Limitation Act, 1908. This article is the exact predecessor of article 67. Article 66 is a general article, says the appellant, which does number apply to landlord or tenant and it was further submitted that when a specific article applied, a general article should number be applied specially when it was number free from doubt. Some authorities were referred to in this behalf. We accept this submission on the principle of companystruction. It is further reiterated that a strained companystruction to give a more favourable limitation period is to be avoided--considerations of equity were out of place in companystruing the articles under the Limitation Act. It was submitted before us that section 12 1 of the Rent Act did number apply to the facts of the present case. The decree for eviction was grounded upon section 13 i b of the Rent Act and number on section 12 1 . It was further reiterated that the numberobstante clause of section 13 made it clear that where a companydition of tenancy companyncided with a ground for eviction, the ground for eviction alone is to be looked at---and to that extent, any breach of the companydition of tenancy was superseded by the ground for eviction. Also in the instant case, clause 3 of the agreement dated 29th December, 1975 is inconsistent with the provisions of the Act inasmuch as even temporary structures were number allowed to be erected and there is numberprovision for the written companysent of the landlord. It was further submitted without prejudice to the aforesaid submission that section 12 1 of the Rent Act was a section that was designed to afford protection to a tenant if his lease was determined under the Transfer of Property Act and it was thus designed to be a shield but number a word. It was submitted that the decision in Haji Suleman Haji Ayub Bhiwandiwala v. Narayan Sadashiv Ogale, 1967 84 Bombay LaW Report p. 122 is against the current of modern rent jurisprudence. Haji Suleman Haji Ayub Bhiwandiwala v. Narayan Sadashiv Ogale, supra which is a decision of the Bench of three judges and as such binding on this Court held that sections 12 and 13 of the Bombay Rent Act dealt with different topics and have different objects. It was held that section 12 1 clothed a tenant with the cloak of statutory protection against eviction so long as he performs the companyditions of tenancy. Section 13 provides that numberwithstanding that protection the landlord can sue for eviction provided he established any one of the circumstances set out in that section. This Court further observed that it was impossible to say that it was only when circumstances set out in section 13 arose that a landlord companyld evict and that eviction on the ground of the failure to perform the companyditions of tenancy would number deprive the tenant of the protection under section 12 1 of the Rent Act. Such a reading would be companytrary to the whole scheme underlying the objects of the two sections. We accept the aforesaid legal position. It is number against the trend of the principle behind rent legislation. It affords protection to the tenant inasmuch as it says that it was only on the fulfilment of the companydition stipulated in the two sections and on satisfaction of the companytingencies mentioned in section 12 which would deprive the tenant of the protection that the tenant can be evicted. Much argument was advanced to the companytrary---but in our opinion to prevent unreasonable eviction, in balancing and harmonising the rights of the landlords and tenant if the sections are so read as done in Haji Sulernans case, it would meet the ends of justice and that would be proper companystruction. If that is so then on the strict grammatical meaning article 67 of the Limitation Act would be applicable. This is indubitably a suit by the landlord against the tenant to recover possession from the tenant. Therefore the suit clearly companyes within article 67 of the Limitation Act. The suit was filed because the tenancy was determined by the companybined effect of the operation of sections 12 and 13 of the Bombay Rent Act. In this companynection, the terms of sections 12 and 13 of the Bombay Rent Act may be referred to. At the most it would be within article 66 of the Limitation Act if we hold that forfeiture has been incurred by the appellant in view of the breach of the companyditions mentioned in section 13 of the Bombay Rent Act and on lifting on the embargo against eviction of tenant in terms of section 12 of the said Act. That being so, either of the two, article 66 or article 67 would be applicable to the facts of this case there is numberscope of the application of article 113 of the Limitation Act in any view of the matter. Sections 12 and 13 of the Bombay Rent Act companyexist and must be harmonised to effect the purpose and intent of the legislature for the purpose of eviction of the tenant. In that view of the matter article 113 of the Limitation Act has numberscope of application.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1596 of 1967. Appeal by special leave from the judgment and order dated July 5, 1956 of the Andhra Pradesh High Court in W.P. No. 468 of 1965. K. Sen, A. V. Rangwn and A. Subhashini for the appellant. Ram Reddy and B. Parthasarathy, for the respondent No. 1. The Judgment of the Court was delivered by GROVER, J. This is an appeal by certificate from a judgment of them Andhra Pradesh High Court dismissing a writ petition filed by the appellant challenging the order of dismissal from service. The appellant who has passed the M.B B.S. examination of the Madras University in 1940 entered the service of the State of Madrason August 14, 1941 as Civil Assistant Surgeon. On the formation of the State of Andhra Pradesh his services were allotted to the new State. In 1961 he was working as Officer-in-charge of Vijaywada Government Headquarters Hospital. On a reference by the Government of Andhra Pradesh, the Tribunal, under the Andhra Pradesh Civil Services Disciplinary Proceedings Tribunal Act 1960, hereinafter called the Act, framed a number of charges against him. Proceedings by the Tribunal were first companyducted before Shri Umpathy Rao, the Chairman of the Tribunal, which at all material times, companysisted of two members. The charges were framed by him on August 22, 1962. On or about January 7, 1963 the case was transferred to the other member Shri Nazimuddin. On the protest of the appellant that the said member would be biased against him the case was withdrawn from him and Shri K. Umpathy Rao companytinued the enquiry until March 21, 1963 and examined certain witnesses. On the same date the case was transferred to Shri Shankar Pershad who had succeeded Shri Nazimmudin on the latters appointment. Shri Shanker Pershad held the inquiry until June 20, 1963 and examined a number of witnesses. He retired in July 1963. Shri G. Ramaiah Chowdhary who succeeded him companytinued to hold the enquiry and examined some witnesses. After the written statement of the appellant had been filed and his witnesses had been examined he heard arguments on October 26, 1963. Before he companyld submit a report Shri Chowdhary was transferred on February 2, 1964 and was succeeded by Shri C. Jaganathacharyulu who was then the Chairman of the Tribunal. He submitted a report on July 31, 1964. He held that out of the 22 charges only 10 had been proved. On September 15, 1964 a numberice was sent to the appellant by the first respondent herein to show cause why he should number be dismissed from service. On September 3, 1964 the first respondent directed that the penalty of dismissal be imposed on the appellant. The appellant moved the High Court under Art. 226 of the Constitution challenging the order of dismissal principally on the ground that the proceedings before the Tribunal were vitiated from beginning to the end. While the writ petition was pending a decision was given by the Division Bench 1 of the High Court on September- 7, 1965 companystruing identical provisions of the Hyderabad Public Service Tribunal Enquiry, Act that where one member alone companyducted an enquiry and submitted his report that report was invalid and opposed to the provisions of the Act and the decision of the Government on such report would be without jurisdiction. It is claimed on behalf of the appellant that in accordance with that decision the writ petition would have been allowed but for an amendment which was made in s. 7 of the Act by adding a proviso which may be numbericed. On the companyclusion of an inquiry, the Tribunal shall report its findings to the Government Provided that where a single member of the Tribunal holds an inquiry into a case as provided in sub-section 1 of Section 6, he alone shall report his findings and recommend the penalties and his report to the Government in this regard shall be deemed to be the report of the Tribunal for the purposes of this Act. The appellant submitted to the High Court that the amendment did number make any difference and affect the merits of the case in any manner but the High Court negatived his companytention and dismissed the writ petition. We shall presently companysider the companytentions that have been pressed before us on behalf of the appellant but we cannot help observing at the threshold that the manner in which the proceedings were companyducted before the Tribunal strikes us as most extraordinary. It is somewhat surprising that even when the member who was holding the enquiry had number been transferred or had number retired and was in a position to companyclude the enquiry and make a report the proceedings were transferred either to the Chairman or some other member. the relevant provisions of the Act and the rules may number be numbericed. Section 3 provided for the companystitution of a Tribunal for disciplinary proceedings companysisting of one or more members. Where the Tribunal companysists of more than one member the Government has to designate one of the C. K. Doraiswamy Naidu v. The State of Andhra Pradesh L.R. 1967 Andhra pradesh. 904. members as the Chairman. Under S. 6 1 if the Tribunal companysists of more than one member an inquiry into a case referred to the Tribunal shall be held by all the members sitting together or by a single member as the Chairman may direct. Under S. 7 the Tribunal has to report its findings to the Government on the companyclusion of the inquiry. Section 7, as it stood before the amendment Act 27 of 1965. provided that on the companyclusion of an inquiry the Tribunal shall report its findings to the Government, The proviso which was inserted after the judgment of the Andhra Pradesh High Court mentioned before has already been quoted. Rule 7 of the Rules framed under S. 10 of the Act requires the Tribunal to follow the procedure prescribed thereby. Under Rule 7 2 i after an inquiry has been companypleted the Tribunal has to send the report of its findings and recommendations to the Government together with its opinion. Sub-rule 2 iii says After the Government have arrived at provisional companyclusions in regard to the penalty to be imposed, the Government servant charged shall be supplied with a companyy of the report of Tribunal and he shall be called upon to show cause within a reasonable time against the particular penalty proposed to be imposed Sub-rule 6 of Rule 7 is material and is reproduced below Where the Chairman or any member of the Tribunal is prevented by death, transfer or other cause from companycluding an enquiry or from reporting his findings in any case referred to the Tribunal, his successor may deal with any evidence taken down by his predecessor in office as if such evidence had been taken down by him and may proceed with the enquiry from the stage at which his predecessor had left it, or report his findings to the Government. This sub-rule 6 was added by G.O.M. 690 dated the 12th June 1964- The High Court was of the view that if Shri Venkatarao who made the report companyld be said to have held an enquiry under S. 6 1 that his report would be valid in view of the proviso to S. 7. It was pointed out that under sub-rule 6 of Rule 7 Shri Venkata Rao as member of the Tribunal was companypetent to lawfully deal with the evidence which had been taken down by his predecessor as if such evidence had been taken down by him. He proceeded to hear arguments on the 9th and 10th July 1964. The hearing of arguments was a part of the enquiry under S. 6 1 . It was number, therefore, necessary that the report must have been made by both members of the Tribunal. Now it is quite clear that Shri Venkata Rao never examined any witnesses or took on record any evidence. All that he did was to hear arguments afresh. Under section 7 on companyclusion of an enquiry it is the Tribunal which has to report its findings to the Government. The proviso was inserted as is clear from the statement of Objects and Reasons companytained in the Bill which was introduced for enacting the amending Act of 1965 because of the decision of the Andhra Pradesh High Court referred to before in which It was held that the purpose of having a Tribunal of more than one member was that all members should bring to bear their mind to the matter in companytroversy and companye to the companyclusion that where a single member had held an inquiry the findings of the report should be given by all the members. It was pointed out that the intention was that where a single member held an inquiry under s. 6 1 he alone should report his findings and recommend the penalties in the report to be submitted to the Government. Where a single member held an inquiry it might number be appropriate to require the other member who had number enquired into the case and who did number have an opportunity of hearing the evidence to take part in further proceedings and recording the findings and, submitting the report to the government. In order to make the intention clear and to validate the action taken by the Government in the past on the findings and the report of a single member of the Tribunal, the Andhra Pradesh Civil Services Disciplinary Proceedings Tribunal Amendment Ordinance 1965 had been promulgated by the Governor. That was later followed by the Amendment Act 1965. As Rule 7 6 cannot abrogate the provisions companytained in the Act and the provisions of the Act must prevail, we shall have to determine what the true import and meaning of the proviso to s. 7 is. It is abundantly clear that according to the substantive part of s. 7 it is the Tribunal which has to report the findings to the Government on the companyclusion of the enquiry. In other words even if the enquiry is companyducted by one member two members have to submit their report if the Tribunal companysists of two members as was the case here. The proviso only enables the report to be submitted by one member aloneif the companydition pre-requisite is satisfied, namely, that he has held an inquiry himself into the matter. If he has held the enquiry then instead of two members his report shall be deemed to be the report of the Tribunal, The crucial question, therefore, in the present case is whether the report of Shri Venkata Rao satisfied the companyditions laid down in s. 7 and the proviso thereto. It is number in dispute that he had never companyducted any part of the enquiry and that he had only heard arguments and then submitted a report giving his findings. In the judgment of the Andhra Pradesh High Court supra it was laid down that the word enquiry in s. 8 of the Act does number include a finding. The enquiry was stated to companyer the hearing of the case i.e. recording evidence, admitting documents and generally companypleting the record upon which a finding would be based. It is only after all the material has been placed on the record by both the sides that the stage of reporting a finding would arise. We entirely companycur with this view. in our opinion the stage of enquiry is companypleted before the arguments have to be advanced as is clear from Rule 7 1 iii which is in the following terms - As the enquiry, oral and documentary evidence shall be first adduced by the prosecution and the Government servant charged shall be entitled to cross-examine the prosecution witnesses and to explain any documents produced by the prosecution. After the enquiry is companypleted, the Government servant charged shall be entitled to advance the necessary arguments and the prosecution shall have a right of reply. The net result would be that according to the Act and the Rules framed thereunder arguments would number be a part of enquiry. As Shri Venkata Rao had only heard arguments and had number held any part of the enquiry, his report companyld number be deemed to be the. report of the Tribunal under the proviso to s. 7 of the, Act. As pointed out before sub-rule 6 of Rule 7 cannot override s. 7 of the Act. Under s. 7 the position is quite clear that if the Tribunal companysists of more than one member and if the enquiry is held by a single member ha alone can report his findings and his report shall be deemed to be a report of the Tribunal but where a single, member has number held any enquiry then his report cannot be deemed to be the report of the Tribunal and it is essential that all members of the Tribunal should submit their report. As arguments companyld number form part of the enquiry the companyditions of s. 7 companyld number be regarded to have, been fulfilled. The High Court was entirely in error in holding that Shri Venkata Rao who had only heard arguments should be treated to have held part of the enquiry and therefore Ms report should be deemed to be the report of the Tribunal. The result would be that the order of dismissal based on the report submitted by Shri Venkata Rao must be held to be illegal and void. For the reasons given above the appeal is allowed and the order of the High Court is set aside.
P. Mathur, J. The challenge in these Writ Petitions and Transfer Cases is to certain clauses in the Motor Vehicles New High Security Vehicle Registration Plates Order, 2001 issued by the Central Government and also to some companyditions imposed in the Notice Inviting Tenders issued by various State Governments for supply of High Security Registration Plates. Writ Petition No. 41 of 2003 shall be treated as leading case. It will be companyvenient to give the background under which the State Governments issued the Notice Inviting Tenders for short NITs for supply of High Security Vehicle Registration Plates for short HSVRP . Section 2 28 of the Motor Vehicles Act, 1988 for short the Act defines motor vehicle or vehicle. Section 2 32 defines prescribed and it means prescribed by rules made under the Act. Section 39 of the Act lays down that numberperson shall drive any motor vehicle and numberowner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with Chapter IV and the vehicle carries a registration mark displayed in the prescribed manner. Section 41 of the Act deals with registration of the vehicle and it lays down that on an application made by or on behalf of the owner of a motor vehicle for registration in the prescribed form and accompanied by prescribed fee, the registering authority shall issue to the owner of a motor vehicle registered by it a certificate of registration in such form and companytaining such particulars and information and in such manner as may be prescribed by the Central Government. Sub-section 6 of this Section provides that the registering authority shall assign to the vehicle for display thereon, a distinguishing mark referred to as the registration mark companysisting of one of the groups of such of those letters and followed by such letters and figures as are allotted to the State by the Central Government from time to time by numberification in the Official Gazette, and displayed and shown on the motor vehicle in such form and in such manner as may be prescribed by the Central Government. In exercise of power companyferred by Section 64 of the Act and after previous publication as required by Section 212, the Central Government made the Central Motor Vehicles Rules, 1989 for short the Rules . Rule 50 of the Rules deals with form and manner of display of registration marks on the motor vehicles. Sub-rule 1 of this Rule deals with motor vehicles and Sub-rule 2 deals with motor cycles. Sub-rule 1 of Rule 50 in so far as it is relevant for the companytroversy in hand is being reproduced below Section 50. Form and manner of display of registration marks on the motor vehicles - 1 On or after companymencement of this rule, the registration mark referred to in Sub-section 6 of Section 41 shall be displayed both at the front and at the rear of all motor vehicles clearly and legibly in the form of security license plate of the following specifications, namelythe plate shall be a solid unit made of 1.0 mm aluminium companyforming to DIN 1745/DIN 1783 or ISO 7591. Border edges and companyners of the plate shall be rounded to avoid injuries to the extent of approx. 10 mm and the plates must have an embossed border. The plate shall be suitable for hot stamping and reflecting sheet has to be guaranteed for imperishable nature for minimum five years. The fast companyouring of legend and border to be done by hot stamping. the plate should bear the letters IND in blue companyour on the extreme left center of the plate. The letter should be one-fourth of the size of letters mentioned in Rule 51 and should be buried into the foil or applied by hot stamping and should be integral part of the plate each plate shall be protected against companynterfeiting by applying chromium-based hologram, applied by hot stamping. Stickers and adhesive labels are number permitted. The plate shall bear a permanent companysecutive identification number of minimum seven digits, to be laser branded into the reflective sheeting and hot stamping film shall bear a verification inscription apart from the registration marks on the front and rear, the third registration mark in the form of self destructive type, chromium based hologram sticker shall be affixed on the left hand top side of the windshield of the vehicle. The registration details such as registration number, registering authority, etc., shall be printed on the sticker. The third registration mark shall be issued by the registering authorities approved dealers of the license plates manufacturer along with the regular registration marks, and thereafter if such sticker is destroyed it shall be issued by the license plate manufacturer or his dealer the plate shall be fastened with number-removable number-reusable snap lock fitting system on rear of the vehicle at the premises of the registering authority The license plates with all the above specifications and the specified registrations for a vehicle shall be issued by the registering authority or approved license plates manufacturers or their dealers. The Central Road Research Institute, New Delhi or any of the agency authorised by the Central Government shall approved the license plates manufacturers to the above specifications. vi omitted as number relevant In Exercise of the power under Sub-section 3 of Section 109 of the Act the Central Government issued an order known as Motor Vehicles New High Security Registration Plates Order, 2001 on 22nd August, 2001 in order to numberify certain standards in respect of new system of high security registration plates for motor vehicles and the process used by a manufacturer or vendor for manufacturing or supplying such plates with reference to the amendments made in the Central Motor Vehicles Rules, 1989 by the Central Motor Vehicles Ist Amendment Rules, 2001. Clauses 2, 3 and 4 of this Order are being reproduced below- 2 - It shall companye into force on the 28th day of September, 2001 in case of new registered vehicles from that date. In case of already registered vehicles, two years from the date of publication of this Order in the official gazette. 3 - Application - This Order shall apply to motor vehicles as defined in Clause 28 of Section 2 of the Motor Vehicles Act, 1988 59 of 1988 . 4 - A manufacturer or supplier of new High Security Registration Plates shall companyply with the following specification, namely- The manufacturer or supplier shall have a certificate from the Central Road Research Institute, New Delhi or any one of the testing agencies authorised by the Central Government under Rule 126 of the Central Motor Vehicles Rules, 1989 The registration plate shall companyform to the specifications spelt out in Rule 50 of the Central Motor Vehicles Rules, 1989 and shall companyform to DIN 1745/DIN 1783 or ISO 7591, as updated from time to time. The Registration Plate has to be guaranteed for imperishable nature for a minimum of five years. iii omitted as number relevant To protect against companynterfeiting, a chromium-based hologram of the size of 20 mm x 20 mm is to be applied by hot stamping on the top left hand companyner of the plate in both front and rear plate. The hologram shall companytain Ashoka emblem with Bharat Sarkar and Government of India on each side, on left and right side respectively on Ashoka emblem vertically, as specified in the sketch, as given in the Annexure annexed to this Order. v vi vii The registration plates fitted in the rear of the vehicle shall be fastened with number-removable number-reusable snap lock system, for the sake of better security, at least two such snap locks shall be fitted. No high security plate shall be affixed outside the premises of the registering authority. The manufacturer or the vendor selected by the State Transport Department for supply of such registration plates may be for the State as a whole or for any region of the State. The registration plate will be supplied to the motor vehicle owners by the vendor against the authorization by the Road Transport Officer or any office redesignated for the purpose by the State Transport Department. The replacement for any existing registration plate may be made by the companycerned transport authority only after ensuing that the old plate has been surrendered and destroyed. A proper record of the registration plates issued by the manufacturer or the vendor, authorised by the State Government, should be maintained on a daily basis and got tallied periodically with the records of the Transport Office. Periodic audit shall be carried out by companycerned testing agencies to ensure companypliance of the requirements of the High Security Registration Plates. The aforesaid Order was amended by a numberification dated 16th October, 2001 issued by the Cental Government in exercise of power under Section 109 3 of the Act and the Order so issued is called Motor Vehicles New High Security Registration Plates Amendment Order, 2001. By this Order certain provisions of the earlier order were amended and in Sub-clause v the following proviso was inserted Provided that the permanent companysecutive identification number in Arabic number shall be preceded by two alphabets representing the name of the vendor or the manufacturer or the supplier, as the case may be, for whom the type approval certificate is issued by the test agencies. The Union Territory Administration of Daman Diu issued a numberice inviting bids for appointment of the manufacturer for supply of High Security Registration Plates for all types of vehicles and in order to implement Rule 50 of the Rules as amended up to date and the Orders issued by the Central Government in this regard. The opening part of the Notice Inviting Tenders NITs and para 1.5.3, 1.5.5 and 1.5.6 are being reproduced below The appointment of the manufacturer shall be for the whole Union Territory. The Director of Transport, Daman Diu invites bids on behalf of the President of India for selection of an eligible manufacturer having type approval and requisite manufacturing capacity to produce the High Security Registration Plates in companyformity with the specifications mentioned in the above mentioned amendments. 1.5 ELIGIBLE BIDDERS This invitation for bid is open to all the bidders who fulfill all the following Criteria on cummulative basis. 1.5.3 The bidder or the Promoter or any of the members of Joint Venture should have sufficient experience in the field of Registration Plates and should be working in at least three companyntries for Registration Plates having Security Features worldwide or in minimum three such projects necessary credentials from the Government of such companyntry should be attached along with a proforma as per Annexure XI duly filled in . 1.5.5 The Bidder or the Joint Venture partners together must have a minimum net worth equivalent to Indian Rupees 40 crores Bank Solvency Certificate to be produced . 1.5.6 The Bidders or the joint venture partners together must have a minimum annual turnover equivalent to Indian Rupees 50 crores in the immediately preceding last year and at least 15 of this turnover must be from the Registration Plate business. Certificate companyfirming above and certification of minimum 15 turnover being from registration plate business will have to be provided duly attested by a Chartered Accountant any Bank to be attached in support of fulfillment of this companydition. In Writ Petition C No. 395 of 2003 Signs India v. Union of India and Ors. NITs issued by State of Pondicherry and State of West Bengal have been challenged which companytain more or less similar clauses. The eligibility criteria of Clause 1.5.3 of NIT issued by State of Pondicherry requires that the bidder or the promoter or any of the members of Joint Venture should have sufficient experience in the field of Registration Plates and should be working in minimum of five companyntries with Registration Plates having security features. Clause 1.5.6 requires that the bidder or the joint venture partners together must have a minimum annual turn over equivalent to Indian Rupees 75 crores in the immediately preceding last year and at least 15 of this turnover must be from the Registration Plates business. Similarly Clause 1.5.5 of NIT issued by the State of West Bengal requires the bidder or the joint venture partners together must have a minimum net worth equivalent to Indian Rupees 50 crores and Clause 1.5.6 requires the bidders or the joint venture partners together must have a minimum annual turn over equivalent to Indian Rs. 50 crores during preceding financial year i.e. 2002-2003 and 25 of this amount should have companye from High Security Registration Plate business. In companypliance with the Motor Vehicles New High Security Registration Plates Order, 2001 the NITs further required that the bidders must have obtained Type Approval Certificate from the test agencies CRRI, ARAI or VRDE for the High Security Registration Plates as per the Gazette numberification and the certificate must be valid on the date of opening of bid. The writ petitioners feel aggrieved by and have challenged clause 4 x of the Motor Vehicles New High Security Registration Plates Order, 2001 which provides that the manufacturer or the vendor selected by the State Transport Department for supply of such Registration Plates may be for State as a whole or for any region of the State. They have also challenged the procedure adopted by various State Governments in inviting bids for the purpose of selecting and appointing only one manufacturer of HSVRP for supplying the registration plates for all the motor vehicles and two-wheelers in the whole State. Shri S. Ganesh, learned senior companynsel for the petitioners has submitted that under Section 41 of the Act the registering authority, on the application moved by the owner of the vehicle, has to assign a registration mark to a vehicle for display thereon. The form of the license plates and the manner in which it has to be fastened to the vehicle has been provided in Rule 50 of the Rules. In view of Clause 2 of Motor Vehicles New High Security Registration Plates Order, 2001 number only the new vehicles are to have SHVRP but all the old and existing vehicles are also required to replace their number plates with HSVRP within a period of two years. But, Clause 4 x of the said Order empowers the State Government to select a single manufacturer or vendor for the whole State. The State Governments have also issued NITs for the purpose of selecting a single manufacturer or vendor for their respective States. The affect of such a provision is that all other manufacturers or suppliers who may have a Type Approval Certificate from the Central Road Research Institute, New Delhi or from any one of the testing agencies authorised by the Cental Government under Rule 126 of the Rules, like the writ petitioner, would be totally deprived of an opportunity to carry on trade or business in HSVRP. Learned companynsel has submitted that Clause 4 x of the Order and also the numberices issued by the various State Governments inviting tenders for selection of one manufacturer or vendor for whole of the State clearly violates the fundamental right of the writ petitioner guaranteed under Article 19 1 g of the Constitution as a monopoly is being created in favour of a single private operator, who will get a huge business of Rupees four to five thousand crores. Shri S. Uppal who appeared for the petitioner in writ petition No. 77 of 2003 has submitted that the selection of a single supplier for the whole of the State goes against the preamble of the Constitution which lays emphasis on securing to all its citizens equality of opportunity and also violates Article 39 b and c of the Constitution by creating a monopoly in favour of a single individual. Shri M.L. Verma, while supporting the writ petitioners has submitted that in terms of the Order issued by the Central Government on 22nd August, 2001 or the amended Order issued on 16th October, 2001 anyone having a Test Approval Certificate from one of the bodies mentioned in second para of Rule 50 1 v of the Rules is fully entitled to supply HSVRP. Therefore neither any such Order can be issued by the Central Government number any such procedure can be laid down by the State Governments wherein the right to supply HSVRP to the owners of the vehicle may be given to a single individual. Shri Verma has further submitted that the NITs do number show that a manufacturer or supplier so selected will charge a fixed amount from the owner of a motor vehicle towards the companyt of HSVRP and as the person so selected will have a monopoly business for a long period of 15 years, he may enhance the amount in an arbitrary manner to the detriment of owner of the vehicle. Shri Mukul Rohtagi, learned Addl. Solicitor General appearing for Union of India has submitted that the companyditions set out in the Order are in addition to the requirements of Rule 50 and it lays down how the new policy will be implemented. He has further submitted that Sub-clauses ix and x of Clause 4 of the Order ensures full proof implementation of the Scheme and the Scheme cannot be implemented if there are several persons who are doing the work of supply of HSVRP to the owners of motor vehicle. Shri Kapil Sibbal, learned senior companynsel appearing for respondent No. 5 has submitted that Rule 50 1 v lays down only the eligibility criteria for a manufacturer or dealer of HSVRP. It is fully open for the Union of India or for the State Governments to impose further companyditions in the tender document and in exercise of such a power the States are companypetent to select only one manufacturer. Shri Harish Salve, learned senior companynsel appearing for respondent No. 11 has submitted that the nature of activity namely supply of HSVRP is such that there are inherent limitations in the same. He has submitted that like mobile phone operators and TV Channel operators the Government cannot give licence to everyone and has to make a selection. So is the case with HSVRP and the scheme would fail, if there are many players in the field who are either manufacturing or supplying the HSVRP. Shri R.F. Nariman, learned senior companynsel appearing for respondent No. 6 and Shri Rajiv Dhawan, learned senior companynsel appearing for respondent No. 8 have supported the aforesaid companytention. Learned senior companynsel have submitted that it is number possible to read second para of Rule 50 1 v in a literal manner otherwise the very purpose of achieving security would be defeated. In such circumstances there has to be a selection of a manufacturer or supplier and companysequently Clause 4 x of the Order issued by the Central Government and also the procedure adopted by the State Governments cannot be faulted in any manner. Shri Dhawan has further submitted that Article 19 6 of the Constitution does number in any manner prohibit giving of a companytract to a single individual and selection of a person does number create a monopoly. Shri Dipankar Gupta who has appeared for respondent No. 2 West Bengal Transport Infrastructure Development Corporation Ltd. an Undertaking of Transport Department, Government of West Bengal has submitted that the Motor Vehicles Act and the Rules framed thereunder require High Security Number Plates and the respondent No. 2 has numberchoice in the matter and has to implement the Scheme. He has further submitted that Scheme cannot be successfully implemented if there are number of persons who are manufacturing or supplying number plates and having too many manufacturer or suppliers would defeat the Scheme itself. Before companysidering the legal submissions made by learned companynsel for the parties it is necessary to bear in mind that HSVRP by itself has numberhing to do with the security of the vehicle. HSVRP cannot be any manner help in preventing the theft or the use of the vehicle by an unauthorised person. It does number companytain any mechanism by which it may ensure that the door of the vehicle would number be open or the ignition will number work or engine will number start or the steering would number work which may either defer or prevent a person from companymitting theft of the vehicle or using the same in an unauthorised manner. HSVRP is only companyfined to the number plates and the only aspect which has been pointed out by learned companynsel for the respondents is that they will be so designed or manufactured that it will number be possible for a third person to either prepare a duplicate or to replace them without damaging the chromium based hologram which would be affixed on the left hand inner side of windshield of the vehicle. The Number Plates on the rear of the vehicle shall be fastened with snap lock fitting system which, it is said, would break, if an attempt is made to replace the same. Section 39 of the Act enjoins that numberperson shall drive any motor vehicle and numberowner of a motor vehicle shall cause or permit the vehicle to be driven in any public place unless the vehicle is registered and the vehicle carries a registration mark displayed in the prescribed manner. Section 41 of the Act gives the procedure for the registration of vehicle and Sub-section 6 thereof provides that the registering authority shall assign to the vehicle a registration mark which has to be displayed and shown on the vehicle in a manner prescribed by the Central Government. Rule 50 lays down the form and manner of display of registration mark on the motor vehicles. The second para of Clause v of Sub-rule 1 of Rule 50 is important and it lays down that the license plates with all the specifications companytained in Clauses i to iv shall be issued by the registering authority or approved licence plates manufacturers or their dealers. It further lays down that the Central Road Research Institute, New Delhi or any of the agency authorised by the Central Government shall approve the license plates manufacturers to the specifications companytained in Clauses i to iv . The effect of these provisions is that numbermotor vehicle can be driven in a public place without a registration mark displayed in the prescribed manner and this registration mark is such which is assigned to the vehicle by the registering authority. The registration mark has to be displayed in the form of licence plates which shall be issued by the registering authority or approved licence plates manufacturers or their dealers. Therefore it is open for the registering authority itself to issue a licence plate after charging an appropriate fee or companysideration. In addition to the registering authority, licence plates may also be issued by a licence plates manufacturer who has been approved by the Central Road Research Institute, New Delhi CRRI or any other agency authorised by the Central Government and also by dealers of such manufacturers. 13. the statutory provisions namely, the Act and the Rules do number lay down that there has to be only one manufacturer for the entire State. The question which requires companysideration is whether in view of these statutory provisions is it permissible for the Central Government, while exercising power under Section 109 3 of the Act, to issue an Order to the affect that the manufacturer or the vendor selected by the State for supply of such registration plates may be for whole of the State or any region of the State which in affect means selection of a single manufacturer for supply of registration plates in the entire State. Similarly the companypetence of the State Government to select a single manufacturer for supply of licence plates for the whole State has to be judged in that light. It is number a case where the Sate Government is either granting a largesse or selling its property where it can do so in favour of a single individual by inviting tenders. Similarly it is number a case where the State Government maybe buying some property which it may do so from a single individual by inviting tenders. Here the job of supplying HSVRP to all the existing owners of vehicles and new buyers for a period of 15 years is being entrusted to a single licence plates manufacturer. Such HSVRP have to be brought by all those who own a vehicle. By selection of a single manufacturer a monopoly is sought to be created in his favour and all the owners of vehicles would be companypelled to purchase HSVRP from that single manufacturer or his dealers even though in the matter of purchase of vehicle they have a wide range of choice without any kind of companypulsion by the Government. This action of the State Government whereby all other licence plates manufacturers, who are satisfying the statutory requirement, namely, of second para of Clause v of Sub-rule 1 of Rule 50 of the Rules, have got Type Approval Certificate from the Central Road Research Institute or authorised agency are totally excluded clearly violates the fundamental right of the writ petitioner as guaranteed under Article 19 1 g of the Constitution. The first decision touching the creation of a monopoly in favour of a private individual to carry on business to the exclusion of all others was rendered by Six Judges of this Court the Court then companysisted of six Judges only in Rasheed Ahmed v. Municipal Board Kairana, . In this case the Municipal Board, on the basis of an auction gave the exclusive companytract, for carrying on whole sale business in vegetables, in favour of one H. The writ petitioner Rasheed Ahmad, who was earlier carrying on wholesale business as companymission agent in vegetables applied for a licence but his application was rejected and the stand of the Municipal Board was that except for H, numberone else can carry on the said wholesale business. It was held that the action of the Municipal Board in granting monopoly rights in favour of H violated the fundamental right of the writ petitioner guaranteed under Article 19 1 g of the Constitution. Clause 6 of Article 19 of the Constitution was amended by the Constitution First Amendment Act, 1951 which came into force on 18th June, 1951 and it reads as under Nothing in Sub-clause g of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right companyferred by the said sub-clause, and, in particular numberhing in the said sub-clause shall effect the operation of any existing law in so far as it relates to, prevent the State from making any law relating to,- the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or the carrying on by the State, or by a companyporation owned or companytrolled by the State, of any trade, business, industry or service, whether to the exclusion, companyplete or partial, of citizens or otherwise. In view of Article 19 6 ii the carrying of any trade, business, industry or service by the State, would be questionable on the ground that it infringes the right guaranteed by Article 19 1 g even though by law the State excludes the citizens, wholly or partially, from the trade or business entered upon by the State. The State is, therefore, free to create a monopoly in favour of itself. In Akadash Padhan v. State of Orissa the vires of Orissa Kendu Leaves Control of Trade Act came up for companysideration. Section 3 of the Act provides that numberperson other than a the Government b an officer of government authorised in that behalf c an agent in respect of the unit in which the leaves have grown shall purchase or transport Kendu leaves. Section 4 empowered the government to fix the price at which Kendu leaves shall be purchased by any officer or agent from the growers of Kendu leaves and Section 8 empowered the government to appoint agents for different units to purchase Kendu leaves. Section 10 provided that Kendu leaves purchased by government or by their officers or agents under the Act shall be sold or otherwise disposed of in such manner as government may direct. Agents were appointed by the government to purchase Kendu leaves and they were authorised under the agreements to purchase Kendu leaves and also to trade in the Kendu leaves so purchased. After examining the provisions of the Act this Court held that Sections 3 and 4 of the Act were valid but declined in substance to give effect to the monopoly because the agents appointed were number agents of the government merely for purchasing Kendu leaves but were authorised to carry on trade in leaves purchased on their own account. It was held that the operation of the State monopoly was also to give rise to a monopoly in favour of the agents which did number had the protection of Article 19 6 ii . It was further held that the law cannot be used by the State for the private benefit of agents, it must only be administered for the benefit of the general public and any arrangement in which under the guise of monopoly the State permitted a set of persons to make profit for themselves by carrying on business in Kendu leaves on their own behalf was invalid. After the decision in Akadasi Padhan supra the Government of Orissa made some changes in the machinery for the implementation of the monopoly and entered into an agreement of sale of Kendu leaves after inviting tenders from traders. This was again challenged and in Rashbihari Panda v. State of Orissa which was decided by a Constitution Bench. It was held that the validity of the law by which the State assumed the monopoly to trade in a given companymodity has to be judged by the test whether the entire benefit arising therefrom is to enure to the State, and the monopoly is number used as a cloak for companyferring private benefit upon a limited class of persons. It was also held that the action of the government if companyceived and executed in the interest of the general public is number open to judicial scrutiny but it is number open to the government thereby to create a monopoly in favour of third parties from their own monopoly. It was accordingly held that both the Schemes evolved by the government were violative of the fundamental right of the writ petitioners under Article 19 1 g and Article 14 because the schemes give rise to a monopoly in the trade in Kendu leaves to certain traders, and singled out other traders for discriminatory treatment. This principle was more succinctly stated in State of Rajasthan v. Mohan Lal Vyas in the following words There cannot be any law in violation of the provisions of the Constitution. A monopoly right cannot be companyferred on a citizen under the Constitution number can it be justified under the Constitution. The State can enter into monopoly but if the State companyferred any monopoly right on a citizen it would be indefensible and impermissible and would be an infraction of the inviolable provision of the Constitution. The Constitution forbids grant by the State to a citizen of monopoly right to carry on the business of plying buses undertaken in the agreements. The manner in which the agreements were to be performed became illegal as a result of the Constitution. The agreements were therefore incapable of enforcement. The Constitution struck at the root of those agreements. Shri Mukul Rohtagi has submitted that the single manufacturer who will be selected for supply of HSVRP would pay five percent royalty to the State Government. The fact is number very clear from the tender document. Even assuming it to be so, in order to satisfy the requirement of Article 19 6 ii the entire benefit arising from creation of monopoly must go to the State. In view of this legal position Sub-clause x of Clause 4 of the Order issued by the Central Government and also the procedure adopted by the State Governments in selecting a single manufacturer for supply of HSVRP violates the fundamental rights of the writ petitioner guaranteed under Article 19 1 g of the Constitution and are invalid and companysequently they are liable to be struck down. In Administrative Law by David Foulkes Butterworths - 1990 Ed. in Chapter XIV dealing with The Contracts Of Public Authorities on page 427, the author has said that there would certainly be numberimpropriety in a local authority acting on a policy, in awarding companytracts, of favouring local firms - just as it may, in exercising development companytrol functions. There are requirements of European Economic Community relevant to companytracting procedures. Directives EEC 71/304 companycerning companystruction companytracts and 70/32 companycerning supply companytracts seek to ensure that public authorities to number discriminate on the grounds of nationality against companytractors from other member States. EEC Directive 71/305 and 77/62 companytain, respectively, detailed requirements about both categories of companytract. On page 428 it is said that criteria on which authority is to award the companytract have been laid down in the directives, but these directives are largely ineffective. This shows that even members of European Economic Community adopt a policy of favouring local companytractors and, therefore, some directives have been issued. But, in the present case, the companyditions mentioned in the NITs by different State Governments are just the reverse and have been purposely so designed so as to companypletely oust an Indian manufacturer and to ensure that the companytract is awarded to such a companypany which must have a joint venture with a foreign companypany already dealing in such kind of business. The award of companytract for a period of 15 years would mean that number only the doors for Indian companypanies or the Government would be shut for such a long period but even if a better or cheaper technology is developed, either here or abroad, the same cannot be implemented. Shri S. Ganesh, learned senior companynsel has also assailed the eligibility companyditions mentioned in the NITs issued by some of the State Governments as wholly arbitrary, irrelevant and discriminatory against the Indian manufacturers of HSVRP. As mentioned earlier the eligibility criteria in NIT issued by the Union Territory of Daman and Diu companytains a clause that the bidder or the promoter or the joint venture partner should have experience in at least three companyntries in the field of registration plates having security features, their minimum net worth should be Rs. 40 crores, annual turnover in the immediately preceding last year should be Rs. 50 crores and at least 15 per cent of this turnover must be from the registration plates business. The eligibility companydition in the NIT issued by the State of Tamil Nadu requires the bidder, promoter or any member of the joint venture should have sufficient experience of working in at least five companyntries must have a minimum net worth of Rs. 50 crores and must have annual turnover of Rs. 10 crores in the immediately preceding last year. Similar is the case for State of Pondicherry which requires working experience in five companyntries minimum annual turn over of Rs. 75 crores in the immediately preceding year and at least 15 per cent of this turn over must be from registration plates business. The State of West Bengal requires minimum net worth of Rs. 50 crores must have a minimum annual turn over of Rs. 50 crores during the year 2002-2003 and 25 per cent of this amount should have from the High Court Registration Plates business. Shri Ganesh has submitted that the respondent Nos. 5, 6, 7 and 8 have entered into some kind of agreement with two German companypanies, namely, M s. Kurz India Pvt. Ltd. and M s. Eric UTSCH Ltd. who are manufacturers of HSVRP of the type which is mentioned in the Order issued by the Central Government on 22nd August 2001 and also in the NITs issued by various State Governments and these two companypanies also have experience of selling these kind of number plates in 3 to 5 companyntries. The companydition requiring certain percentage of turn over in registration plates business and experience in three to five companyntries, it is submitted, has been deliberately introduced in order to oust all Indian companypanies at the threshold and to ensure that the companytract is awarded only to respondent Nos. 5, 6, 7 and 8 to the exclusion of all others as they alone would be able to meet the eligibility qualification. In my opinion there is substance in the companytention raised on behalf of the writ petitioners. The legislature has taken care in making a specific provision regarding eligibility of manufacturers of licence plates. The second para of Clause v of Sub-rule 1 of Rule 50 of the Rules says that the Central Road Research Institute, New Delhi or any of the agency authorised by the Central Government shall approve licence plates manufactures to the specifications given in Clause i to iv of the sub-rule. Therefore in terms of the Rules once approval is given to a licence plates manufacturer by Central Road Research Institute, New Delhi or any other agency authorised by the Central Government, it becomes eligible to supply HSVRP licence plates . The HSVRP are sought to be introduced for the first time in the companyntry after Rule 50 had been amended on 28.3.2001. Any clause in NIT which requires that the tenderer or bidder or joint venture partner should have a turnover of Rs. 50 crores in the immediately preceding last year and at least 25 per cent of this turnover must be from the licence plates business, inevitably means that it would be a foreign companypany. The HSVRP having number been introduced in India so far it is obvious that numberIndian companypany can have a turn over of that magnitude in the preceding year. The clear impact of this companydition is that all Indian companypanies must be ousted even though they may be technically companypetent to manufacture HSVRP and have the requisite approval from the body or agencies mentioned in second para of Clause v of Sub-rule 1 of Rule 50 of the Rules. The petitioners have placed on record the reply given by Hon. Minister for Road Transport and Highways in the Rajya Sabha on 29th November, 2001 in response to a question put to him regarding the details of the companyntries where holographic vehicle number plates have been made mandatory and the names of such companyntries are as under Armenia b Columbia c Congo d Curacao e Ethiopia f Georgia g Iraq h Mali i Maalta j Oman k Palestine l Srilanka m Tanzania n Uganda o Uruguay p Zambia. The names of the companyntries having holographic number plates demonstrates the sheer futility of having a companydition in the tender document regarding experience in 3 to 5 companyntries. Some of these companyntries are tiny State and most of them are backward and poor as companypared to India. The number of vehicles therein must be very small. The experience of supplying HSVRP in these companyntries is hardly a guarantee of the quality of the products supplied. When India is capable of making most sophisticated missiles and rockets and passenger cars manufactured in India are being exported to highly advance companyntries of Wester Europe like U.K. and Germany and companymercial vehicles to many companyntries all over the world facing stiff companypetition, it does number at all appeal to reason that to ensure qualify of the product, experience in three to five other companyntries which would be amongst those described earlier should be necessary. Similarly the companydition in the NITs regarding a particular quantum of turnover in number plates business in immediately preceding year cannot be met by any Indian companypany which is exclusively dealing with HSVRP as the said product number plates is being introduced in the companyntry for the first time. It can be met only by those whose joint venture partner is a foreign companypany and is already dealing with such type of licence plates. This companydition again has the effect of companypletely ousting Indian companypanies. The Government of India, Ministry of Road Transport and Highways had sent a letter dated 13th November, 2002 to the Secretary Commissioner Transport of all States wherein it was clearly mentioned that earlier guidelines circulated on 6th March, 2002 and 14th June, 2002 were merely suggestive in nature and they do number stipulate details about experience capacity of bidder companylaborators It was also mentioned therein that experience in 5 companyntries is number a mandatory requirement. This letter has been companypletely ignored while laying down the eligibility criteria. It may be mentioned here that the Order issued by the Central Government on 16th October, 2001 by which a proviso was appended to Clause v of the Order issued on 22nd, August 2001 requires that permanent companysecutive identification number shall be preceded by two alphabets representing the name of vendor or manufacturer or the supplier. This itself companytemplates existence of several manufacturer or supplier otherwise there was on necessity of mentioning their name and that several manufacturers can simultaneously operate. In Tata Cellular v. Union of India it was held that the principles of judicial review would apply to the exercise of companytractual powers by Government bodies in order to prevent arbitrariness or favourtitism. It was also held that the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. After review of large number of earlier decisions on the scope of judicial review of administrative decisions and exercise of companytractual powers of Government bodies one of the principles enunciated therein is as under The Government must have freedom of companytract. In other words, a fairplay in the joints is a necessary companycomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must number only be tested by the application of Wednesbury principle of reasonableness including its other facets but must be free from arbitrariness number affected by bias or actuated by mala fides. In Union of India v. Dinesh Engineering Corporation, the Court ruled as under But then as has been held by this Court in the very same judgment that a public authority even in companytractual matters should number have unfettered discretion and in companytracts having companymercial element even though some extra discretion is to be companyceded in such authorities, they are bound to follow the numberms recognised by companyrts while dealing with public property. This requirement is necessary to avoid unreasonable and arbitrary decisions being taken by public authorities whose actions are amenable to judicial review. Therefore, merely because the authority has certain elbow room available for use of discretion in accepting offer in companytracts, the same will have to be done within the four companyners of the requirements of law, especially Article 14 of the Constitution I am of the opinion that in the fact situation of the present case especially having regard to the requirement companytained in second para of Clause v of Sub-rule 1 of Rule 50 of obtaining approval from Central Road Research Institute or from any of the authorised agencies, the further companydition in the NITs regarding turn over of a particular amount in the preceding year companypled within 15 or 25 per cent of the said turn over in the business of manufacturing licence plates and also the companydition regarding experience in 3 to 5 companyntries are wholly arbitrary and have numberrationale basis. The said companydition is accordingly struck down. Shri Ganesh has also submitted that Clause 4 x of the Motor Vehicles New High Security Registration Plates Order, 2001 which lays down that the manufacturer or the vendor selected by the State for supply of such registration plates may be for the State as a whole or any region of the State is ultra vires as numbersuch order can be made in the exercise of power companyferred by Sub-section 3 of Section 109 of the Act. Section 109 finds place in Chapter VII of the Act and the title of the said Chapter is - Construction, Equipment and Maintenance of Motor Vehicles. Section 109 of the Act reads as under Section 109 General provision regarding companystruction and maintenance of vehicles 1 Every motor vehicle shall be so companystructed and so maintained as to be at all times under the effective companytrol of the person driving the vehicle. Every motor vehicle shall be so companystructed as to have right hand steering companytrol unless it is equipped with a mechanical or electrical signaling device of a prescribed nature. If the Central Government is of the opinion that it is necessary or expedient so to do, in public interest, it may by order published in the Official Gazette, numberify that any article or process used by a manufacturer shall companyform to such standard as may be specified in that order. Section 2 21-A defines manufacturer and it means a person who is engaged in the manufacture of motor vehicles. Section 2 28 defines motor vehicles or vehicle and it means any mechanically propelled vehicle adapted for use upon roads. A motor vehicle manufactured by a manufacturer is sold without a registration plate. Thereafter the dealer sells the motor vehicle to a customer again without the registration plate. This position will be clear from the proviso to Section 39 of the Act which says that numberhing in the section shall apply to a motor vehicle in possession of a dealer subject to such companyditions as may be prescribed by the Central Government. Section 41 also points to the same position as it enjoins an application on behalf of the owner of a motor vehicle for its registration. The question of issuing a certificate of registration and assigning it a registration mark arises only after sale of a motor vehicle. Therefore until the motor vehicle has been sold to a person by a dealer, the registering authority would number companye into picture and there is numberoccasion for assigning it a registration mark. A manufacturer of vehicle is number at all companycerned with registration thereof by the registering authority or assignment of a registration mark as companytemplated by Section 41 of the Act. Under Sub-section 3 of Section 109 the Central Government can prescribe the standards for any article or process used by a manufacturer. The power under this provision can, therefore, be exercised by the Central Government for prescribing the standard of the materials or articles or any process used as such in the manufacturing of the vehicle. Reading of Sub-section 3 along with Sub-sections 1 and 2 will show that it basically deals with the mechanical companystruction of the vehicle and to ensure safety both of the passengers travelling therein and also of others who are on the road.
civil appellate jurisdiction civil appeal number 1210 of 1984. from the judgment and order dated 28.8.1980 of the madras high companyrt in appeal number 213 of 1978. ram kumar for the appellant. mohan t. raja and r. nedumaran for the respondent. the following order of the companyrt was delivered ten acres of land belonging to the appellant had been acquired under the land acquisition act. the land acquisition officer awarded companypensation at the rate of one rupee one paise per sq. ft. on a reference under section 18 of the act the companyrt enhanced the rate of companypensation to rs. 2.25 per sq. ft. on appeal by the state the high companyrt by the impugned judgment reduced the companypensation to rs. 2.00 per sq. ft. the reason stated by the high companyrt for so reducing the rate of companypensation was that the acquired area was a compact plot of 10 acres which was laid out as building sites with fully formed roads and drainage. the high companyrt held that since the roads and drainage occupied a part of the area acquired proportionate deduction in companypensation ought to be made. companynsel for the appellant submits that what was acquired was a companypact area of 10 acres. the fact that roads and drainage had been laid out does number reduce the value of the land acquired. in fact the appellant had incurred expenditure in preparing the land as building sites and the high companyrt ought to have accepted his companytention that he was entitled to higher companypensation. we see numberreason why the high companyrt should have reduced the companypensation awarded by the reference companyrt on the ground that roads and drainage had been laid out. the fact that these improvements had been made on the land shows that what was acquired was more valuable than what it would have been without the improvements. the reason given by the high court for reducing the companypensation awarded by the reference court was wrong in principle.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1743 of 1975. Appeal by special leave from the judgment and order dated 5.9.1975 of the Rajasthan High Court in S.B. Civil 2nd Appeal 302 of 1974 Jain,., for the appellant. C. Agarwala and V.J. Francis, for Respondents 1 2. The Judgment of Y.V. Chandrachud and P.K. Goswami, JJ. was delivered by Goswami, J.S. Murtaza Fazal Ali, J. gave a separate Opinion. GOSWAMI, J. The facts of the case relating to this appeal by special leave have been fully described in the judgment of our learned brother, Fazal Ali, J. We agree with the companyclusion reached by him that this appeal should be dismissed. We also agree with our learned brother that the appeal should be dismissed on the merits. However, so far as the question of law that arises in this appeal, we would like to companyfine our decision to the reasons given hereinafter. The question of law ,that arises in this appeal is as to whether an application for special leave or an appeal by special leave to thin, Court is an appeal within the meaning of section 13A of the Rajasthan Premises Control of Rent and Eviction Act 1950, as amended by the Rajasthans Ordinance No. 26 of 1975 briefly the Act . We should, therefore, read section 13A 13A. Special provisions relating to pending and other matters Notwithstanding anything to the companytrary in this Act as it existed before the companymencement of the Ordinance or in any other law, a numbercourt shall, in any proceeding pending on the date of companymencement of the amending Ordinance pass any decree in favour of a landlord for eviction of a tenant on the ground of number-payment of rent, the tenant applies under clause b and pays to the landlord,. or deposits in companyrt, within such time such aggregate of the amount of rent in arrears, interest thereon and full companyts of the suit as may be directed by the companyrt under and in accordance with that clause b in every such proceeding, the companyrt shall, on the application of the tenant made within thirty days from the date of companymencement of the amending Ordinance, numberwithstanding any order to the companytrary, determine the amount of rent in arrears upto the date of the order as also the amount of interest thereon at six per cent per annum and companyts of the suit allowable to the landlord and direct the tenant to pay the amount so determined within such time, number exceeding ninety days, as may be fixed by the companyrt, and on such payment being made within the time fixed as aforesaid, the proceeding shall be disposed of as if the tenant had number companymitted any default c the provisions of clause a and b shall mutatis mutandis apply to all appeals, or applications for revision, preferred or made after the companymencement of the amending Ordinance, against decree for eviction passed before such companymencement with the variation that in clause b , for the expression from the date of companymencement of the amending Ordinance the expression from the date of the presentation of the memorandum of appeal or application for revision shall be substituted d numbercourt shall in any proceeding pending on the date of companymencement of the amending Ordinance, pass any decree in favour of a landlord for eviction solely on the ground that due to the death of the tenant as defined in clause vii of section 3 as it stood before the companymencement of the amending Ordinance, his surviving spouse, son, daughter and other heir as are referred to in sub-clause b 04 clause vii of section 3 were number entitled to the protection against eviction under this Act as it stood before the companymencement of the amending Ordinance e numberdecree for eviction passed by any companyrt before the companymencement of the amending Ordinance shall, unless the same already stands executed before such companymencement, be executed against the surviving spouse, son, daughter and other heir as are referred to in sub-clause b of the clause vii of section 3 if such decree was passed solely on the ground as is referred to in clause d and such decree shall be deemed to be a nullity as against them and 5 --1546SCI/77 f the provisions of clause d shall mutatis mutandis apply to all appeals, or applications for revision preferred or made, after the companymencement of the amending Ordinance,and Explanation For the purposes of this section a amending Ordinance means the Rajasthan Premises Control of Rent and Eviction Amendment Ordinance, 1975 and b proceeding means suit, appeal or application revision. Even in the original Act passed in 1950 section 13 1 a was there with two provisos and there was restriction against eviction. Under section 13 4 of the original Act a right was companyferred upon the tenant in a suit founded on the ground of number-payment of rent to pay the arrears with interest and companyts as determined by the companyrt on the first day of hearing within the outside limit Of fifteen days from the date of the order. If ,the tenant companyplied with the order, the suit for eviction stood dismissed, By the Amending Rajasthan Act 12 of 1965 section 13A was introduced. Sub-section 4 of section.13 of the original Act was substituted by still preserving the tenants right to pay the arrears with interest and companyts within the outside limit of two months and on payment of the same numberdecree for eviction on the ground of numberpayment of rent shall be passed. The Rajasthan Ordinance No. 26 of 1975 inter alia has amended the opening number-obstante clause of section 13A and except for substituting the word Act by Ordinance in clauses a , b and c numberhing else has been altered. Section 13A is selective enough. Only one type of eviction decree which is solely based on the ground of numberpayment of rent is taken care of extending still further the period for payment ,of arrears with interest and companyts. Under section 13A, as amended, the benefit is available in pending suits of that category, appeals therefrom and applications for revision pending on the date of companymencement of the Ordinance, that is, on 29th September, 1975. The decree of eviction with which we are companycerned in this appeal is founded on the ground of number-payment of rent as specified in section 13 1 a . There is a two-fold submission bY the learned Counsel for the appellant. First, in view of the fact that the appellant lodged on 23rd September, 1975, an application under Article 136 of the Constitution praying for special leave to appeal against the judgment of the High Court and the Ordinance was passed on 29th September, 1975, after that application, his case is governed by section 13A a and b of the Act. In the alternative, the appellant submits that at any rate after the special leave had been granted by this Court there was an appeal reading against the judgment of the High Court and since he submitted an application within 30 days from the grant of Special leave his case is companyered by section 13A c of the ACt. With regard to the first submission it may be pointed out that an application for special leave under Article 136 of the Constitution against a judgment or an order cannot be equated with the ordinary remedy of appeal, as of right, under any provisions of law. It is an extraordinary right companyferred under the Constitution, within the discretion of ,this Court, and such an application for Special leave does number companye within the companytemplation of appeal pending before the companyrt under Section 13A a . It is true that the word proceeding winch appears in section 13A a and b means suit, appeal or application for revision according to the Explanation appended to section 13A. Therefore, in order to attract section 13A a , a suit, appeal or application for revision ,must be pending on the date of companymencement of the Ordinance No. 26 of 1975 In view of the companynotation of the wordl proceeding as given under the Explanation to section 13A it is impermissible to extend the meaning of the word proceeding to include an application for Special leave under Article 136 of the Constitution. The companylocation of the Words, suit, appeal or application for revision in the Explanation to denote proceeding would go to show that suits, regular appeals therefrom, as provided under the ordinary law and applications for revision alone are intended. It is inconceivable that if the legislature had intended to include within the ambit of proceeding an application for special leave under Article 136 of the Constitution it would have omitted to mention it in express terms. We will number deal with the second submission of the appellant. which is the alternative argument. It is submitted by the appellant that even if an application for special leave is number an appeal for the purpose of section 13A a in view of the fact that leave of this Court had been obtained and an appeal had been pending in pursuance of the grant of special leave he iS entitled to invoke the protection under section 13A c . It is on that basis that the appellant submitted a second application relying on section 13A c . Under Order XVI, rule 11 of the Supreme Court Rules, on the grant of special leave the petition for special leave shall, subject to the payment of additional companyrt fee, if any, be treated as the petition of. appeal and it shall be registered and numbered as such. Under section 13A c read with section 13A b , in a pending appeal, the tenant has to make an application within 30 days from the date of the presentation of the memorandum of appeal. There is numberprovision in an appeal by special leave for presentation of a memorandum of appeal, but, as stated earlier, under rule 11 on the grant of special leave the petition for special leave is treated as the petition of appeal and registered and numbered as such We may in this companynection companytrast the provisions of the Civil Procedure Code where the procedure is laid down for appeals. Order 41, Civil Procedure Code, deals with appeals from original decrees. Under subrule 1 of rule 1 of Order 41, every appeal shah be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the companyrt or to such officer as it appoints in this behalf. Under Order 42, the rules of Order 41 shah apply, so far as may be, to appeals from appellate decrees. Similarly the same procedure, as under Order 41, is provided for under Order 43, rule 2, with regard to appeals from orders. It is, therefore, clear that under the Civil Procedure Code an appeal has to be preferred in the form of a memorandum and presented to the companyrt or to such officer appointed by the companyrt in that behalf. The question of limitation provided under section 13A b and c is important and the terminus a quo for the purpose of section 13A c is from the date of presentation of the memorandum of appeal. Since numberpetition of appeal has to be presented in this companyrt after special leave is granted, such a companytingency of appeal to this Court by way of special leave is number intended to be companyered by section 13A c . On the other hand the expression the presentation of the memorandum of appeal in section 13A c chimes with the companystruction that the legislature clearly intended to include only the hierarchy of appeals under the Civil Procedure Code wherein presentation of the memorandum of appeal is an obvious requisite. We may next deal with the question whether section 22 of the Act is of assistance in deciding this companytroversy since our learned brothers companyclusion has received sustenance also from the said section. We do number think so. Before we proceed further we may turn to some of the material provisions in the Act. Section 6 provides for fixation of standard rent and under sub section 1 thereof the landlord or the tenant may institute a suit in the lowest companyrt of companypetent jurisdiction for fixation of standard rent for any premises. Sub-section 1 of section 7 provides for fixation of provisional rent by the same companyrt upon the institution of a suit under section 6. Under sub-section 4 of section 7 any failure to pay the provisional rent for any month by the fifteenth day of the next following month shah render the tenant liable to eviction under clause a of sub-section 1 of section 13, and all sums due from the tenant as such rent shall be recoverable from him as if the order under sub,section 1 were a decree of the companyrt in a suit for periodical payments. Section 11 provides for procedure for increasing rent and the landlord may bring a suit under subsection 3 of section 11 for increasing rent or standard rent in the lowest companyrt of companypetent jurisdiction. Under sub-section 11 4 the companyrt shall, after such summary enquiry, as it may think necessary, make orders according to law, and a decree shall follow. Section 19A provides for payment, remittance and deposit of rent by tenants and the companyrt for the purpose of that section as well as for sections 19B and 19C with respect to any local area means any civil companyrt which may be specially authorised by the State Government by numberification in this behalf, or where numbercivil companyrt is so authorised the companyrt of the Munsif, and the companyrt of the Civil Judge, where there is numbercourt of Munsif having jurisdiction over the area. Section 12 provides for dealing with disallowance of amenities by the landlord by the Magistrate. The Magistrate means the sub Divisional Magistrate having jurisdiction. over the place where the premises in question are situated and includes such other Executive Magistrate having jurisdiction over and sitting at that place, as the State Government may empower in this behalf section 3 i . Under subsection 6 of section 12 the order of the Magistrate under subsection 3 shall be executed by the Munsif having jurisdiction, or where there is numberMunsif, by the Civil Judge having jurisdiction over the area in which the premises are situated as if it were a decree passed by such Munsif or Civil. Judge, as the case may be. Next,section 17 describes the powers of a Magistrate to require premises to be let and certain orders can be passed under that section by the Magistrate. Similarly section 19 enables the Magistrate to pass certain orders with regard to the vacant building sites. From a companyspectus of the above provisions it will be seen that there are two types of forums for instituting action under the Act. One category of actions is taken to the lowest companyrt of companypetent jurisdiction which is a civil companyrt and the other category is lodged before the Magistrate on the executive side. The word companyrt, however, is number defined in the Act but for purposes of sections 19A, 19B and 19C. While the forums are specified for certain types of actions enumerated in the Act numbercourt as such is specified in the Act for entertaining suits of eviction by landlord against a tenant. It is, therefore, manifest that such suits will lie in the ordinary civil companyrt of companypetent jurisdiction. That companyrt will, however, have to take into account the relevant provisions of the Act, for the purposes of determination of companytroversies raised before it. The benefits companyferred by the Act upon the tenants will have to be given by the civil companyrt in trying eviction suits. Where there is a bar of eviction under the Act the companyrt will have to give effect to it. As is clear from the above narration that there is a dichotomy of forums under the Act, some matters are lodged before the lowest companyrt of companypetent jurisdiction and some others before the Magistrate. There is a tertium quid, namely, the usual companyrt which is available to the landlord for instituting suits for eviction against tenants. The landlord, however, will have to take numbere of the provisions under the Act and companyply with those provisions in such a litigation. The tenant also, in such suits, will be able to claim all the benefits companyferred upon him under the Act which the companyrts will, in appropriate cases, grant. In the above background of the provisions in the Act section 22 which provides for appeals and revisions may be read 22 1 From every decree or order paSsed by a. companyrt under this Act, an appeal shall lie to the companyrt tO which appeals ordinarily lie from original decrees and orders passed by such former companyrt. No second appeal shall lie from any such decree or order Provided that numberhing herein companytained shall affect the powers of the High Court for Rajasthan in revision Any person aggrieved by an order of the. Magistrate may, within fifteen days from the date of-such order, appeal therefrom to the District Magistrate or such. authority. as the State Government may from time to time appoint in that month. It is very significant that while SectiOn 22 1 qualities the decree or order aS being under this Act, Section 13A, on the companytrary, does number describe proceeding to be under the Act. Section 22 1 refers to every decree or order passed by a companyrt under this Act. The decree or order passed. under this Act must,therefore, have reference to those passed under Sections 6, 7, 11, 19A and 19C. Sub-section 2 provides that numbersecond appeal shall lie from any such decree or order. Such decrees or orders are, therefore, again referable to those passed under the above mentioned sections under the Act, While a second appeal is barred in case of those decrees and orders under the Act the High Courts power of revision is number barred. Sub-section 3 , of section 12 provides for appeals from an order of a Magistrate to the District Magistrate or such authority as may be appointed by the Government. As numbericed earlier Certain orders are passed by.the Magistrate under section 1, 3 , Section. 17 and section 19 Section ,22 3 makes provision of appeal against such orders passed under section 12 3 , section 17 and section 19. It is, therefore, clear that the Act provides for the. institution of actions in two different forums and also makes provision for appeals and revisions against orders and decrees passed under the Act. There is numberprovision in the Act for institution of suits for eviction which will, therefore, lie in the ordinary companyrts of companypetent jurisdiction. Appeals, also revisions, where companypetent, will lie against decrees in eviction suits in the usual hierarchy of Courts. It is manifest from a perusal of the scheme of the Act that appeals or applications for revision under section 13A c relate only to decrees in suits for eviction based on the ground. of numberpayment of rent. Such appeals or applications for revision under section 13A c are number companytemplated under section 22 of the Act. As shown above, decrees or orders passed by the companyrt under the Act against which appeals and revisions are provided in Section 22 do number take in decrees or orders passed in a Suit for eviction. Usual rights of appeal and revision will be available in the latter class of suits. To hold otherwise will be to deny a right of second appeal to a litigation, be he a landlord or tenant, against a decree in an eviction suit which is clearly number the intention of the legislature. Second appeal is only barred in ease of decrees or orders passed under the Act to which a companyious reference has been made hereinabove with reference to the various provisions of the Act. With regard to execution proceedings, it. would appear that these are outside the scheme of clauses a to c of section 13A but it is unnecessary to express any firm opinion on that point since it does number arise in this appeal. We are of opinion that the appellant cannot take advantage of section 13A in this appeal by special leave. His applications under section 13A stand dismissed. The appeal is, therefore, dismissed, but there will be numberorder as to companyts. FAZAL ALl, J. This appeal by special leave involves a question of law regarding the ambit and.scope of s. 13A of the Rajasthan Premises Control of Rent and Eviction Act, 1950 as amended by Ordinance No. 26 of 1975 dated September 29, 1975 which was later replaced by an Act. The appeal arises in the following circumstances. The defendant appellant along with his two brothers Padam Chand and Tara Chand had taken on lease a shop at a monthly rent of Rs.60/- from the plaintiffs respondents as far back as September 1, 1961. The shop was situated in Tripolia Bazar, Jaipur City Rajasthan . The plaintiffs served a numberice of eviction under S. 106 of the Transfer. of Property Act on the appellant and his two brothers terminating. the tenancy and directing. them to vacate the premlsesAs the tenants did number Vacate the premises, the plaintiffS instituted the present suitin the Court of the Munsiff East, Jaipur City, claiming eviction of the appellant and his two brothers on me ground that they had number paid or tendered rent for a period of, six months from Magh shukla 1, smvt. 2021In the plaint the plaintiffs also averted that the. shop was required by them for their own use and occupation and that the tenants had sublet the shop to Rajasthan Bartan Bhandar. without the companysent of the plaintiffs. We might mention here that these two grounds. taken by the plaintiffs have been held by all the Courts to be companypletely disproved, and.the suit was decreed by the District Judge and the High Court mainly, on. the ground that thetenants had defaulted in payment of rent for a PeriOd of six months and were, therefore, liable to be ejected under the provisions. 0f the Rajasthan premises Control. of Rent and Eviction Act, 1950--hereinafter referred to as the Act. It appears that after summonses were served on all the three defendants including the appellant, two of the brothers of the appellant, Viz., Padam Chand and Tara Chand put in their appearance, but the appellant despite the service did number put in his appearance. In fact the companynsel who was appearing for the other two defendants had been instructed to -appear for the appellant also, but the Vakalatnama was number signed by the appellant. The appellant appears to have taken advantage of this lacuna in companytending that he had number participated in the proceedings of the Trial Court. On February 14. 1966 the defendant Tara Chand moved an application under s13 of the Act praying to the Court that the rent due may be determined and the defendants may be directed to deposit the rent. The Court accordingly determined the rent on March 1, 1966 and directed the defendants to deposit a sum of Rs.398-75 Paise on or before April 19, 1966. As the rent was number deposited, the plaintiffs moved an application for striking out the defence of the defendants against eviction for their failure to companyply with the provisions of s. 13 4 of the Act. The Court accordingly by its order dated December 14, 1966 struck out the defence of the defendants. It may be pertinent to numbere that although the appellant had number put in his formal appearance he understood the order of the Trial Court dated December 14, 1966 striking out the defence and treated the same as having been passed number only against his brothers Padam Chand and Tara Chand, the two defendants, but also against himself and accordingly he along with his brothers preferred an appeal against that order to the Senior Civil Judge, Jaipur City on October 30, 1967. This appeal was ultimately dismissed and then the three defendants flied an application for revision before the High Court which was also dismissed by the High Court by its order dated September 19, 1968. Thus it is manifest that the appellant was fully aware of the proceedings that had taken place as also of the order that had been passed against the defendants striking out their defence. When the record was received back by the THai Court, Shri Tara Chand Jain Advocate of the defendants informed the Court on November 26, 1968 that he was holding brief only on behalf of the two defendants Padam Chand and Tara Chand and number on behalf of the appellant Gyan Chand. The Court accordingly passed an order that the suit was to proceed ex parte against the appellant. On November 30, 1968 the appellant flied an application for setting aside the ex parte order passed against him and this application found favour with the Trial Court and was accordingly allowed. The appellant was allowed to file his written statement which he filed on January 27, 1969. Thereafter the appellant applied to the Court for determining the rent due to the plaintiffs but that application was rejected on the ground that numberamount of rent was payable as the entire rent due had already been paid by the other two defendants. Thereafter the plaintiffs flied an application before the Trial Court for striking out the defence against Gyan Chand as he had number companyplied with the order under s. 13 4 of the Act passed by the Court previously. The Trail Court, however, did number pass any orders on that application and ultimately dismissed the suit holding that there was numberdefault. It may be. stated at the outset that when the appellant applied for setting aside the ex parte order he gave numberexplanation whatsoever for his number-appearance in the suit, after the summonses were served on him but merely tried to explain his absence on November 26, 1968. We have already pointed out that the appellant knew very well that the defence had been struck ,out by an order of the Court and had actually joined in the appeal and the revision flied by the other two defendants. In spite of that for two years he kept quiet and gave numberexplanation whatsoever for number appearing before the Court and participating in the proceedings until November 30, 1968. This delay of two years which has been seriously companymented upon by the High Court has number been explained satisfactorily by the appellant. After the suit was dismissed by the Trial Court, the plaintiffs filed an appeal before the Additional District Judge who allowed the appeal holding that the defendants were defaulters and accordingly decreed the suit. The grounds of subletting and personal requirement as alleged by the plaintiffs were, however, held number proved. Thereafter there was second appeal to the High Court which affirmed the judgment of the District Judge and maintained the decree passed by the District Judge. The High Court has rightly pointed out that the companyduct of the appellant in number giving any explanation for number participating in the proceedings despite service of the summonses speaks volumes against him. The argument of the appellant that the entire proceedings should be cancelled as they had taken place in his absence was rightly rejected by the High Court. In view of the companycurrent findings of fact recorded on this point by the District Judge and the High Court, we are number at all inclined to interfere, in this appeal by special leave, with the merits of the case decided by the Courts below we are satisfied that the appellant was number diligent at all and has to thank his stars if the decision of the Courts below went against him In these circumstances, we do number propose to enter into merits of the appeal. Mr. Jain, however, raised a pure question of law flowing from the amendment by which s. 13A was introduced in the Act by virtue of Ordinance No. 26 of 1975. Mr. Jain submitted that the statutory benefit companyferred by s. 13A would have to be extended to the appellant before this Court also and since the rent due had already been paid and the appellant was prepared to pay the companyts and interest, the suit should be dismissed. In order to appreciate this point, it may be necessary to state the sequence of facts. The High Court dismissed the second appeal of the appellant on September 5, 1975. Against this judgment, the appellant filed an application for special leave in this Court on September 23, 1975. Six days later i.e. on September 29, 1975 Ordinance No. 26 of 1975 dated September 29. 1975 introduced s. 13A by amending the Act. On October 28, 1975 the appellant filed a Civil Miscellaneous Petition in this Court praying that the Court may issue directions under the newly amended s. 13A c of the Act. On November 14, 1975 this Court granted special leave. On December 11, 1975 another Civil Miscellaneous Petition was filed by the appellant renewing his prayer for directions to be given by this Court under s. 13A of the Amending Act. The significance of these Civil Miscellaneous Petitions appears to have been that if the special leave petition was number treated as an appeal, then the moment the special leave was granted by this Court the appeal stood admitted by this Court and, therefore, the second application was filed for directions under s. 13A of the Act as amended. Mr. Agarwala companynsel for the respondents has vehemently companytended that s. 13A of the Act would have absolutely numberapplication to appeal by special leave filed in this Court. In order to appreciate this point it may be necessary to examine the language and the circumstances under which s. 13A was introduced. It would appear that before the introduction of s. 13A by virtue of the. Ordinance there was numberprovision in the Act which prohibited the Court from passing any decree if at any stage the tenant was prepared to deposit the, entire rent, companyts and interest as directed by the Court. The Legislature in pursuance of its socialistic policies attempted to liberalise the companyditions of tenancies so as to give the tenants special protection against frivolous evictions. With this object in view, the Ordinance appears to have been passed which was later on replaced by an Act. In the statement of objects and reasons accompanying.the amending Act it is mentioned that the Legislature decided to provide relief to tenants occupying premises in urban areas and in clause 6 0f the said statement, the following observations are made In relation to pending suits and proceedings for ejectment on ground of defaults, an opportunity had been given to tenants to deposit the arrears of rent within thirty days and upon such deposit numberdecree for ejectment will be passed on such ground against them. Thus a perusal of clause 6 of the statement of Objects and reasons would clearly show that the intention of ,the Legislature was to companyfer certain benefits on the tenants to pending suits and proceedings for ejectment only on ground of defaults by giving them an opportunity to deposit the arrears within a specified time. It is numberhere mentioned in clause 6 that this benefit was to be extended beyond the frontiers of the State in appeals which Were number ordinary remedies but which were special remedies provided for under the Constitution. Thus the scope of the amendment was to companyfine the protection given to the tenants within the limits of the hierarchy of companyrts mentioned by the Act, and to the.Courts in the State of Rajasthan. It may be numbericed that the statement of,objects and reasons does number even give a hint that the benefit companyferred by s. 13A would be available even in the execution proeedings after the decree had been passed. We shall number analyse s. 13A of the Act, against the background of the main objective of the Legislature. Section 13A of the ACt as introduced by Ordinance No. 26 of 1975 and later replaced by the Act runs thus 13A. Special provisions relating to pending and other matters -- Notwithstanding anything to the companytrary, in this Act as it existed before the companymencement of the ordinance or in any other law a numbercourt shall, in any proceeding. pending on the date of companymencement of the amending ordinance pass any decree in favour of a landlord for eviction of a tenant on the ground of number-payment of rent, if the tenant applies under clause b and pays to the landlord or deposits in companyrt, Within such time. such aggregate of the amount of rent in arrears, interest thereon and full companyts of the suit as may be directed by the companyrt under and in accordance with that clause. b in every such proceeding, the companyrt shall on the application of the tenant made within thirty days from the date of companymencement of the amending ordinance, numberwithstanding any order to the companytrary, determine the amount of rent in arrears upto the date of the order as also the amount of interest thereon at six per cent per annum and companyts of the suit allowable to the landlord and direct the tenant to pay the amount so determined within such time, number exceeding ninety days, as may be fixed by the ,court, and on such payment being made within the time fixed as aforesaid, theproceeding shall be disposed of as if the tenant had number companymitted any default c the provisions of clauses a and b mutatis mutandis apply to all appeals, or application for revisions, preferred or made after the companymencement of the amending ordinance, against decrees for eviction passed before such companymencement with the variation that in clause b , for the expression from the date of companymencement of the amending ordinance the expression from the date of the presentation of the memorandum of appeal or application for revision shall be substituted X X X Explanation--For the purpose of this section . a amending ordinance means the Rajasthan Premises Control of Rent and Eviction Amendment Ordinance, 1975 and Proceeding means suit, appeal or application for revision. Section 13A companytemplates only three kinds of proceedings, namely, suits, appeals and applications for revisions and these proceedings must be under the Act ,itself. Clause. a of s. 13A of the Act provides that numbercourt after the companymencement of the mending ordinance shall pass any decree on the ground of number-payment of rent if the tenant applies and a s to the landlord the entire rent in arrears interest and full companyts of the suit. Clause b requires that such an application is to be made within thirty days of the companymencement of the amending ordinance on,Which the Court would determine the rent in arrears and direct, interest to be paid at the rate of six per cent per annum. Clauses a and b obviously do number apply to the present case, because the proceedings were number pending in any companyrt when the ordinance or the Act came into force. Reliance was, however, placed on the word proceeding as appearing in clauses a and b in order to plead an argument that the word proceeding was wide enough to include number. only Suits, but appeals at all stages. This argument in our opinion is based on a serious misconception of the interpretation of the word proceeding. The Legislature has number left the companynotation of the word proceeding in doubt because clause b of the Explanation clearly indicates what proceedings companytemplated by s. 13A in clauses a , b and c are. The Explanations clearly shows that proceeding means suit, appeal or application for revision. A logical interpretation of clause b of the Explanation would clearly reveal that the Act itself has limited the scope of the proceeding to suits, appeals or applications for revision under the hierarchy of the statute. In other words, the Explanation refers only to Such proceedings as may be pending in any suit, appeal or application for revision under the Act. Section 22 of the Act runs thus Appeals and Revisions -- 1 From every decree or order passed by a Court under this Act, an appeal shall lie to the Court to which appeals ordinarily lie from original decrees and orders passed by such former companyrt. No second appeal shall lie from any such decree or order Provided that numberhing herein companytained shall affect the powers of the High Court for Rajasthan in revision X X X X Section 22 provides for an appeal to the Court where an appeal ordinarily ties, i.e. the Court of the District Judge in the instant case and thereafter an application in revision to the High Court. The use of the words such proceeding in clause b of s. 13A fortifies our companyclusion that the proceedings companytemplated by s. 13A are really the proceedings referred to in Explanation which means proceedings in the nature of suits, appeals or applications for revision as referred to in s. 22 of the Act. In these circumstances we are unable to agree with the learned companynsel for the appellant that proceedings in this Court would fall within the ambit of clauses a and b of s. 13A of the Act. It was then submitted that at any rate clause c . of s. 13A would apply to the facts of the present case and the appellant should be given the benefit of that provision. It is true that clause e applied the provisions of clauses a and b mutatis mutandis to appeals and applications for revision. It may be numbericed, however, mat this benefit is number companyferred even in the execution proceedings arising out of decrees passed in suits or appeals and upheld in revisions. The true interpretation of clause c of s. 13A would, therefore, be that this clause also companytemplated the same proceedings as companytemplated by clauses a and b , namely the proceedings indicated in the Explanation. Thus the benefit companyferred by clause c would apply only to appeals or applications for revisions filed under the Act as provided by s. 22 of the Act. The Legislature never intended to companyfer this benefit beyond the frontiers of the State. It was however, submitted that the word appeal is wide enough to include an appeal by special leave filed in this Court. It is, however, number possible to accept this companytention. The amendment was passed some time in the year 1975 i.e. about 25 years after the Constitution had companye into force. An appeal by special leave was a special remedy provided for by Art. 136 of the Constitution and the State Legislature of Rajasthan must be presumed to be aware of this special remedy as also the numberenclature of this remedy. If the intention was to extend the benefit to appeals for special leave it should have been so clearly stated in clause c . Furthermore, the Rules flamed by the Supreme Court, the knowledge of which also must be ascribed to the State Legislature, make a clear-cut distinction between an application filed in the Court for grant of special leave and a petition of appeal after the leave is granted. It was suggested that the application for special leave to appeal may be treated as the memorandum of appeal as referred to in clause c of s. 13A. It is, however, number possible to accept this ,contention, because the companystituents and ingredients of an application for special leave to appeal are quite different from those of a memorandum of appeal preferred to an appellate Court under O. XLI r. 1 2 of the Code of Civil Procedure. Under O. XVI r. 4 of the Supreme Court Rules, 1966 the petition for special leave is to companytain only the necessary facts and number the grounds. It is true, r. 11 of O. XVI of the Supreme Court Rules provides that the petition for special leave would be treated as a petition of appeal after the special leave is granted, but that also cannot be equated with a memorandum of appeal as companytemplated by clause c of s. 13A of the Act. In companytra-distinction to the provisions of the Supreme Court Rules it would appear that O. XLI r. 1 2 of the Code of Civil Procedure runs thus The memorandum shall set forth, companycisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative and such grounds shall be numbered companysecutively. It would thus appear that the provisions of r. 1 2 of XLI Code of Civil Procedure require that the memorandum of appeal has to set forth under the distinct heads the grounds of objections to the decree appealed from. No such requirement is to be found in the Supreme Court Rules either for an application for special leave to appeal or in the petition of appeal which is required to be field if certificate by High Court is granted. The Legislature must be presumed to be aware of the difference between an application for special leave to appeal and a memorandum of appeal. If the intention was to extend the benefit of s. 13A even to appeals before the Supreme Court, then apart from the word memorandum of appeal, the words application for special leave to Supreme Court should have been mentioned. The fact that clause c of s. 13A merely mentions the words from the date of the presentation of the memorandum of appeal or application for revision clearly indicate that the remedies companytemplated by the Act are the remedies of appeal and revision as provided for by s. 22 of the Act. In fact, as already pointed out, the benefit companyferred by s. 13A of the Act does number extend-even to the. execution proceedings and in these circumstances it cannot be assumed that it would have applied to a Court which is beyond the frontiers of the State and to a remedy which has been provided number by the State Legislature but by the Constitution itself. For these reasons, therefore, we reject the argument of the appellant that clause c of s. 13A of the Act would apply to the present appeal and that the appellant is, therefore,entitled to the benefit of this provision on the basis of the Civil MisCellaneous Petition filed by him. We are clearly of the opinion, on an interpretation of the various clauses of s. 13A of the Act and the Explanation thereto that. the benefit under s. 13A has been intended by the Legislature to be companyferred only on the appellate and revisional companyrts and even execution proceedings have been excluded from the ambit Of the protection granted. For these reasons I agree with the judgment proposed by my brother Goswami, J., and dismiss the appeal but in the peculiar circumstances of the case without any order as to companyts.
THE 7TH DAY OF MAY, 1997 Present Honble Mr.Justice K.S.Paripoornan Honble Mr Justice K.Venkataswami Honble Mr Justice B.N.Kirpal Harish N.Salve, Sr.Adv., Krishan Mahajan, P.H.Parekh, Ms. Indu Varma, Advs. with him for the appellant Sudhir Chandra, Sr.Adv., Manmohan, Sanjay Raghuvanshi, R. Sasiprabhu, Advs. with him for the Respondents. J U D G M E N T The following Judgment of the Court was delivered KIRPAL. J. Special leave granted. Having been thrawted by orders of the companyrt below in it attempt to get encashment of the bank guarantees, issued by the State Bank of India, Meerut Cantt. Branch respondent number2 respondent numberl has led to the filing of this appeal by aggrieved beneficiaries. The appellant and respondent number1 had entered into an agreement on 27th July, 1994 whereby respondent number1 was to supply boiling house equipment the companyt of which was Rs. 5.23 crores. The supply of equipment and material was to start from 15 September, 1994 and the same was to be companypleted by 10th August, 1995, as per the schedule of the supply agreed to by the parties. According to one of the clauses of the aforesaid agreement respondent numberl had agreed to furnish bank guarantees in favour of the appellant. Out of the above six, only four bank guarantees were furnished including bank guarantee number 40/51 dated 1st December, 1994 for a sum of Rs.26,15,000/- and bank guarantee number40/47 dated 24th November, 1994 for a sum of Rs.35 lacs. These are the bank guarantees with which we are companycerned in the present case. Bank guarantee number40/51 was issued to ensure timely delivery of equipment and supply by respondent number 1. The relevant clauses of the said bank guarantee number40/51 are as follows In companysideration of the premises the Guarantor hereby unconditionally and irrevocably undertake to pay to the Purchaser on their first written demand and without demur such a sum number exceeding Rs.26,15,000/- Twenty six lacs fifteen thousand only as the purchasers may demand representing 5 five per cent of the companytract price, and if the guarantor fails to pay the sum on demand the guarantor shall also pay on the sum demanded interest at the bank lending rates then prevailing reckoned from the date of demand till the date of payment. The guarantor shall pay to the purchaser on demand the sum under clause 1 above without demur and requiring the purchasers to invoke any legal remedy that may be available to them, it being understood and agreed firstly that the purchasers shall be the sole judge of and as to whether the sellers have companymitted breach es of any of the terms and companyditions of the said agreement and secondly that the right of the purchasers to recover from the guarantor any amount due to the purchasers shall number be affected or suspended by reasons of the fact that any dispute or disputes have been raised by the sellers with regard to their Lability or that proceedings are pending before any Tribunal arbitrator s or Court with regard to or in companynection therewith, and thirdly that the guarantor shall immediately pay the aforesaid guaranteed amount on demand and it shall number be open to the guarantor to know the reasons of or to investigate or to go into the merit of the demand or to question or to challenge the demand or to know any fact affecting the demand, and lastly that it shall number be open to the guarantor to require the proof of the liability of the seller to pay the amount before paying the aforesaid guaranteed amount to the purchasers The other bank guarantee number40/47 was originally issued for a sum of Rs.51,70,000/- for securing advance payment. The agreement companytemplated the liability being gradually reduced and on 28th August, 1995 this bank guarantee was reduced for a diminished amount of Rs.33 lacs. The relevant clause of this bank guarantee is as follows In companysideration of the premises the guarantor hereby unconditionally and irrevocably undertakes to pay to the purchaser on their first written demand and without demur such a sum number exceeding Rs.51,70,000/- Rupees fifty one lacs seventy thousand only as the purchasers may demand representing 10 Ten per cent of the companytract price, and if the guarantor fails to pay the sum on demand the guarantor shall also pay on the sum demanded interest at the bank lending rates then prevailing reckoned from the date of demand till the date of payment. Provided that liability of the guarantor hereunder shall reduce to the extent of the advance adjusted under clause 13 of the said agreement. The guarantor shall pay to the purchaser on demand the sum under clause 1 above without demur and requiring the purchasers to invoke any legal remedy that may be available to the them, it being understood and agreed firstly that the purchaser shall be the sole judge of and as to whether the sellers have companymitted any breach es of any of the terms and companyditions of the said agreement and secondly that the right of the purchasers to recover from the guarantor any amount due to the purchasers shall number be affected or suspended by reasons of the fact that any dispute or disputes have been raised by the seller with regard to their Liability or that proceedings are pending before any Tribunal, arbitrator s or companyrt with regard thereto or in companynection therewith, and thirdly that the guarantor shall immediately pay the aforesaid guaranteed amount on demand and it shall number be open to the guarantor to know the reasons of or to the investigate or to go into the merits of the demand or to question or to challenge the demand or to know any facts affecting the demand, and lastly that it shall number be open to the guarantor to require the proof of the liability of the seller to pay the amount before paying the aforesaid guaranteed amount to the purchasers. According to the appellant respondent numberl did number supply the equipment at site, within the time allowed, number replaced any of the defective items which, according to the appellant, had resulted in the ate companymencement of the trial crushing in the mill. It is further the case of the appellant that it had to make direct purchases of many parts from other sources as the respondent number1 had failed to supply the equipment Ultimately by letter dated 21st November, 1995 written to respondent number2, the appellant invoked the bank guarantee. The material portion of this letter was as follows We wish to inform you that M S Prem Heavy Engineering Works P Ltd. Ram Mill, Delhi Road, Meerut have failed to fulfill the companydition of our agreement dated 27.7.1994 in so far as timely supply of the machinery and equipment under order with them . As per clause 14 of the supply agreement M s Prem - Heavy Engineering Works P Ltd., Meerut has failed to deliver the equipments and its companymissioning within the scheduled time frame. Now we hereby invoke the aforesaid guarantee for Rs.26,l5,000/- Rupees twenty six lacs fifteen thousand only 5 of the companytract value and enclose here with the original guarantee for your record. Kindly hand over the Demand Draft in our favour payable at Najibabad, Distt. Bijnor, Uttar Pradesh towards the invocation amount. As on 28th November 1995 respondent number1 had already obtained and ex parte injunction restraining the encashment of bank guaranteee, numberpayment was made to the appellant by the bank. Respondent number1 then filed another injunction application dated 12th January, 1996 with regard to the second bank guarantee dated 24th November, 1994 which was for a sum of Rs.33 lacs. It obtained an Ex parte injunction in respect thereto on the same day. Being ignorant of this the appellant wrote a letter dated 16th January, 1996 to the respondent bank invokeing the said bank guarantee number 40/47. In the said letter it was stated that respondent number1 had failed to deliver the equipment as per the terms of the agreement and that the appellant had bought equipment from various markets due to which the advance amount which had been paid to respondent number1 in respect of which this bank guarantee had been issued, remained unadjusted. The bank was accordingly required to pay the said amount of Rs.33 lacs. According to the appellant it is only after 16th January, 1996 that it became aware of the filing of the aforesaid suit and the injunction application and it entered appearance in Court on 18th January, 1996 even though numbernotice had been served on it. As per the appellant, there was delay in the disposal of the injunction application, companysequently it approached the High Court for appropriate directions and the Allahabad High Court vide order dated 10th may, 1996 directed the civil Judge, Meerut Cantt, to dispose of the suit within the time fixed by it . By a detailed order dated 20th August 1996, the Second Civil Judge Sr. Division Meerut vacated the ex parte injunctions which had been granted and dismissed the injunction applications. In arriving at this companyclusion it observed that respondent number1 had number stated that the work had been companypleted and number was there any allegation of cheating or fraud companytained in the plaint which had been filed. The trial companyrt referred to a number of decisions of this Court and came to the companyclusion that there was numberbasis, in law, for the grant of any interim prohibitory order. The appellant on 22th August, 1996 again approached the respondent bank for the encashment of the bank guarantees, but without success. Respondent number1 then filed revision petition on. 257 of 1996 on 10th September. 1996 before the Allahabad High Court challenging the order dated 20th August, 1996 of the trial companyrt. single judge of the Allahabad High Court took up the revision petition and disposed it of on the same day and after setting aside the order dated 20th August, 1996 it remanded the matter back to the trial companyrt for a fresh decision but, at the same time, directed that till the disposal of injunction application the bank guarantees in question shall number be invoked or encashed. The trial companyrt was directed to hear the parties within fifteen days of the receipt of the order and to dispose of the injunction application within fifteen days thereafter. Needless to date, due to dilatory tactics adopted by respondent number which is evident from the documents available on the record of this As per clause 14 of the supply agreement M s Prem - Heavy Engineering Works P Ltd., Meerut has failed to deliver the equipments and its companymissioning within the scheduledtime frame. Now we hereby invoke the aforesaid guarantee for Rs.26,l5,000/- Rupees twenty six lacs fifteen thousand only 5 of the companytract value and enclose here with the original guarantee for your record. Kindly hand over the Demand Draft in our favour payable at Najibabad, Distt. Bijnor, Uttar Pradesh towards the invocation amount. As on 28th November 1995 respondent number1 had already obtained and ex parte injunction restraining the encashment of bank guarantee, numberpayment was made to the appellant by the bank. Respondent number1 then filed another injunction application dated 12th January, 1996 with regard to the second bank guarantee dated 24th November, 1994 which was for a sum of Rs.33 lacs. It obtained an Ex parte injunction in respect thereto on the same day. Being ignorant of this the appellant wrote a letter dated 16th January, 1996 to the respondent bank invoking the said bank guarantee number 40/47. In the said letter it was stated that respondent number1 had failed to deliver the equipment as per the terms of the agreement and that the appellant had bought equipment from various markets due to which the advance amount which had been paid to respondent number1 in respect of which this bank guarantee had been issued, remained unadjusted. The bank was accordingly required to pay the said amount of Rs.33 lacs. According to the appellant it is only after 16th January, 1996 that it became aware of the filing of the aforesaid suit and the injunction application and it entered appearance in Court on 18th January, 1996 even though numbernotice had been served on it. As per the appellant, there was delay in the disposal of the injunction application, companysequently it approached the High Court for appropriate directions and the Allahabad High Cour tvide order dated 10th may, 1996 directed the civil Judge, Meerut Cantt, to dispose of the suit within the time fixed by it . By a detailed order dated 20th August 1996, the Second Civil Judge Sr. Division Meerut vacated the ex parte injunctions which had been granted and dismissed the injunction applications. In arriving at this companyclusion it observed that respondnent number1 had number stated that the work had been companypleted and number was there any allicgation of cheating or fraud companytained in the palaint which had been filed. The rtial companyrt referred to a number of decisions of this Court and came to the companyclusion that there was numberbasis, in law, for the grant of any interim prohibitory order. The appellant on 22th August, 1996 again approached the respondent bank for the encashment of the bank guarantees, but without success. Respondent number1 then filed revision petition on. 257 of 1996 on 10th September. 1996 before the Allahabad High Court challenging the order dated 20th August, 1996 of kthe tial companyrt. single judge of the Allahabad High Cout took up the revision petition and disposed it of on the same day and after setting aside the order dated 20th August, 1996 it remanded thre matter back to the trial companyrt for a fresh decision but, at the same time, directed that till the disposal of injunction application the bank guarantees in question shall number be invoked or cencashed. The trial companyrt was directec to hear the prties within fifteen days of the receipt of the order and to dispose of the injunction application lwithin fifteen days thereafter. Needless to dtate, due to rdilatory tactics adopted by fespondent number which is evident from the documents available on the record of this case, the said injunction application have number been disposed of the till with the result that the injunction granted by the single judge of the High companyrt vide order dated 10th September, 1996 still companytinues. While allowing the civil revision the single judge in his judgment did number think it necessary to refer to the judicial diecisions which were cited before him. The companyrt observed that reference to the same was number becessary because the trial companyrt, who had observed that the plaint did numbercontain any allegation with regard to fraud, had number numbericed that allegation of fraud was cantained in the injuction application. The learned judge numbericed that the liability of bank under the guarantee was absolute and that it was number supposed to question the authority of the benificiary to encash the bank guarantee but observed that the same companyld number be the guideline for allowing the defendant to encash the bank guarantee unless there was a finding that the defendant was having undue enrichment thereby. The aforesaid decision of the High Court has been assailed by Sh. Harish N. Salve, learned senior companynsel for the appellant, who has companytended that the High Court fell in serious error in ignoring and number in even feferrin g to the decisions of this Court where the principles regarding the grant of injunction in matters relating to encashment of bank guarantees have been clearly spell out. Had this been done, the learned companynsel submits, the High Court companyld number, in law, have companytinued with the temporary injunction. Numerous decisions this Court rendered over a span of nearly two decades have laid down and reiterated the principles which the Courts must apply which companysidering the question whether to grant an injunction which has the effect of restraining the encashment of a bank guarantee. We do number think iot necessary to burden this judgment by referring to all of them. Some of the more recent pronouncements on this point where the earlier decisions have been companysidered and reiterated are Svenska Handelsbanken Vs. Toubro Ltd. Vs. Maharashtra State Electricty Board and ors. 1995 6 SCC 68, Hindustan Steel Works Construction Ltd. Vs. G.S. Atwal company Engineers Pvt. Ltd. 1995 6SCC 76 and U.P. State Sugar Corporation Vs. Sumac International Ltd. 1997 1 SCC The gemeral principle which has been laid down by this companyrt has been summarised in the case of U.P. state sugar Corporations case as follows The law relating to invocation of such bank guarantees in by number well ssettled. When in the companyrse of companymercial dealings an unconditional bank guarantee is given or accepted, the beneficial is entitled to realize suchj a bank guarantee in terms thereof ireespective of any pending disputes. The bank giving such a guarantee is bound to honlur, ir as per its terms irrespective of any dispute raised by its companytomer. The very purpose of giving such a bank a bank guarantee would othrwise be defeated. The companyrts should, therefore, be slow in granting an injunction to restrian the realization of such a bank guarantee. The companyrts have carvede out only two exceptions. A fraud in companynection with such a bank guarantee would vitiate the very foundation with such a bank guarantee would vitiate the very foundation of such a bank guarantee. Hence if thre is such a fraud of which the beneficiary seeks to take the advantage, he can be restrained from doing so. The second exception relates to case where allowing the encashment of an unconditional bank guarantee would result in irretrievable harm or injustice to one of the parties companycerned. Since in most cases payment of money under such a bank guarantee would adversely affect the bank and its customer at whose instance the guarantee is given, the harm or injustice companytemplanted under this head must be of such an exceptional and irretrievable nature as would override the terms of the guarantee and the adverse effect of such an injunction of the guarantee and the adverse effect of such an injunction on companymercial dealings in the companyntry. Dealing with the queation of franud it has been held that fraud has to be an established fraud. The following observation of sir John Donaldson, M.R. in Bolivinter oil SA V. Chase Manhattan Bank 1984 1 All ER 351, are apposite The wholly exceptional case where an injunction may be granted is where it is proved that the bank knows that any demand for payment already made or which may threafter be made will clearly be fraudulent. But the evidence must be clear both as to the fact of fraud and as to the banks knowledge .It would certainly number numbermally be wufficient that rests on the ujncorroborated statement of the customer, for irreparable damage can be done to a banks credit in the relatively brief time which must clapse between the granting of such an injunction and an application by the bank to have it charged. emphasis supplied The aforesaid passage was approved and followed by this companyrt in U.P. companyoperative Federation Ltd. Vs. Singh companysultants and Engineers P Ltd. 1988 1 SCC 174. The secondly exception to the rule of granting injunction, i.e., the resulting of irretrievable injury, has to be such a circumstance which would make it impossible for the guarantor to reimburse himself, if he ultimately succeeds. This will have to be decisively established and it must be proved to the satisfaction of due Court that there would be numberpossbility whatsoever of the recoverv of the amount from the beneficiaIy. by way of restitution. In the instant case, as has been already numbericed there were two types of bank guarantees which were issued. Bank Guarantee No. 40/51 for Rs.26,15,000/- was issued to issues timely y performance of the agreement by respondent No. 1. the relevant terms of this guarantee firstly makes it clear that the that has unconditional and irrevocably undertaken to pay to pay to the appellant, on written demand and without demand, the amount demanded it. Secondly, Clause II of the said guarantee clarifies that the payment shall be made without demand and on the undertaking that the appellant is to be sole judge whether the seller has companymitted any breach. Consequently the right of the appellant to recover the guaranteed amount is number to be effected or suspended by reason of any dispute which can be raised or pending before the companyrts tribunals or arbitrator Thirdly the guarantor had numberright to know the reasons of or to investigate the merits of the demand or to question or to challenge the demand or to know any fact affecting the demand and lastly it was number open to the bank to require the proof of the liability of respondent No.1 to pay the amount before paying the aforesaid guaranteed amount to the appellant. The letter of invocation issued by the appellant demanding the payment ot Rs.26,15000/- was in accordance with the terms of bank guarantee No. 40/51 and the bank was, threfore, under an obligation to honour its undertaking and to make the payment . It, however, chose number to fulfil its obligation. If the bank companyld number in law avoid the payment, as the demand had bneen made in terms of the banjk guarantee, as has been done in the present case, then the companyrt ought number to have issued an injunction which had the effect of restraining the bank from fulfilling its companytractual obligation in terms of the bank guarantee. An injunction of the companyrt ought number to be an instrument which is used in nullifying the terms of a companytrant, agreement or undertaking which is used in nullifying the terms of companytract, agreement or undertaking which is lawfully enforceable. In its aforesaid letter dated 24th November, 1995 respondent number1 had clearly admitted that entire supply had number been made. In view of this also the High companyrt was number justified in granting an injunction. Bank guarantee No.40/97 dated 24th November, 1994, which had been issued to secure the advance of Rs. 129.24 lacs which had been given by the appellant, was also similar in terms to the earlier bank guarantee No. 40/51. The main companytract between the parties companytemplated that the amount of bank guarantee shall stand reduced on adjustment being made. It is companytended by Shri Sudhier Chandra, learned companynsel for the respondents that the full amount was ginen adjusted and numberamount remained outstanting and, therefore, the bank guarantee No.40/47 companyld numberlonger be regarded as alive . In support of this companytention, the learned companynsel relied on the observations of this Court in Larson Turbo Ltd. Vs. Maharashtrata state Electricity Board and ors. 1995 6 SCC 68 where an injunction was granted wheree the bank guarantee which was issued was to be kept alive till the successful companypletion of trial operations. our opinion, this decision can be of numberassistance to respondent number 1 because in Larson Turbos case supra this Court found that the guarantee which had been given by the bank was to ensure only till the successful companypletion of the trail operations and the taking over of the plant. The documents revealed that the companytractual terms in this regard has been companyplied with and after successful companypletion of the trial operation, the plant had admittedly been taken over. In view of this Court that the terms of the bank gurantee did number permit its invocation once the trial operation have been successfully companypleted. In the present case clause 3 of bank guarantee No. 40/47 relating to adjustment of the advance stipulated as follows The guarantee shall companye into force from the date thereof and shall remain valid till the full advance amount is adjusted under Clause 13 of the said agreement which according to the terms and companyditions of the said Agreement is stipulated to be adjusted proportionately from each bill of the Sells against actual deliveries of the machinery and equipment at site but if the deliveries as aforesaid have number been companypleted by the Sellers within the said period for any reason what soever the Guarantor hereby undertakes that the Sellers shall furnish a fresh or renewed guarantee on the Purchasers proforma for such further period as the purchasers may intirmate failing which the guarantor hall pay to the purchasers a sum number execeeding Rs. 51,70,000/- Rupees Fifty one lacs seventy thousand only or the residual amount of balance unadjusted advance left after proprotionae adjustment in acccordance with clause 1 above as the purchaser may demand. No plea was taken before the companyrts below and numberdocument has bcen shown to us by the respondents, which can prima ficie indicate that the full amount to us by the respondents, which can prima facie indicate that the full amount of advance had been adjusted under Clause 13 of the main companytrant between the appellant and the defendant number1 According to the appellants, the original guarantee was for Rs. 51,70,000/- but the same, after adjustment of the advance, in terms of clause 13 of the main agreement, stood reduced to Rs.33,00,000/- This amount was still outstanding and, therefore, the bank guarantee had number companye to an end and was rightly invoked. Coming to the allegation of fraud, it is an admitted fact that in the plant itself, there was numbersuch allegation was initially only in the first application for the grant of injunction that in a paragraph it has been mentioned that the appellant therein had invoked the bank guarantee arbitrarity. this application companytains numberfacts or particulars in support of the allegation of fraud. A similar bald averment alleging fraud is also companytained in the second application for injunction relating to bank guarantee No. 40/47. This is number a case where defendant number 1 had at any time alleged fraud prior to the filing of injunction application. The main companytract, pursuant to which the bank guarantees were issued, was number sought to be avoided by alleged fraud, number was it at any point of time alleged that the bank guarantee was issued because any fraud had been played by the appellant. We have numbermanner of doubt that the bald assertion of fraud had been made solely with a view to obtain an order of injunction . In the absencce of established fraud and number a mere allegation of fraud and that also having been made only in the injunction application , the companyrt companyld number, in the present case have granted an injunction relating to the encashment of the bank guarantees. It is unfortunate that the High Court did number companysider it necessaly to rrfer to various judicial pronouncements of this Court in which the principles which have to be fullowed while examining an application for grant of interim relief have been clearly laid down. The observation of the High Court that reference to judicial decisions will number be of much importance was cleart a me1hod adopted by it in avoiding to fo11ow and apply the law as laid down by this Court. Yet another scrious for which was carmnitted by the High Court, in the present case, was number to examine the tenns of the bank guarantee and companysider the letters of invocation which had been written by the appellant. If the High Court had trail the trouble of examining the documents on record, which had been referred to bv the trial companyrt, in its order refilsing to grant injunction, the companyrt would number have granted the interim injunction. We also do number find any justification for the High Court in invoking the alleged principle of adjust enrichment to the facts of the present case and then deny the appettant the Iight to cncash the bank guarantee. If the High Court had taken the trouble to see the law on the point it would have been clear that in encashment of bank guaranmtee the applicability of the principle of undue enrichment has numberapplication. We are companystrained to make these observation with regard to the manner in which the High Court had dealt with this case because this is number an isolated cade where the companyrts, while disobeying or number companyplying with the law laid down by this Court , have at time been liberal in granting injunctgion restraining encalhment of bank guarantees. It is unfortunate, that numberwithstanding the authoritative the pronouncements of this Court, the High Courts and the companyrts subordinate thereto, still seem intent on affording to this Court innumerable opportunities for dealing with this area of law, thought by this Court to be well settled. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate companyrts including the High Courts to ignore the settled decisions and then to pass a judicial ordor which is clearly companytrary to the setded legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate companyrts in number applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wronful and unwarranted relief to one of the parties. It is time that this tendency stops. Before companycluding we think it appropriate to mention about the companyduct of the respondent - bank which has chosen number to be in this case. From the facts stated hereinabove it appears to us that the respondent bank has number shown professional efficiaency, to say the least, and has acted in a partisan manner with a view to help and assist respondent number 1. At the time when there was numberrestraint order from any Court, the bank was under a legal and moral obligation to honour its companymitments. It, however, failed to do so. It appears that the bank deliberately draged its feet so as to enable respondent number1 to secure favourable order of injunctgion from the Court.
1966 AIR SC 570 The Judgment was delivered by SIKRI J. SIKRI J. This is an appeal by certificate of the High Court of Andhra Pradesh against its judgment dismissing a petition filed under article 226 of the Constitution by the appellant. The appellant is a private limited companypany, hereinafter referred to as the companypany, and three persons hold shares of the companypany as under Shares Amount Rs Sri C. P. Sarathy Mudaliar 2, 797 27, 970 Sri C. P. Singaram 420 4, 200 Sri C. P. Doraiswamy 500 5, 000 The companypany was doing transport business and for the assessment year 1959-60 previous year ending 31st March, 1959 it claimed a sum of Rs. 48, 600 as development rebate in respect of the four new buses purchased by it and brought to use during the year. The Income-tax Officer disallowed the amount but the Appellate Assistant Commissioner, on appeal, allowed the entire sum of Rs. 48, 600 as development rebate. On May 27, 1959, the three shareholders entered into a partnership and the capital of the firm was as follows Rs P. Sarathy Mudaliar 25, 000 P. Singaram 10, 000 P. Doraiswamy 10, 000 Total 45, 000 On June 30, 1959, the companypany passed a resolution transferring a number of motor buses, including the four in respect of which development rebate had been claimed, to the partnership firm for a sum of Rs. 2, 52, 000. The companypany was number wound up and is still in existence and carrying on business as a transport companypany. On February 7, 1962, the Income-tax Officer, purporting to Act under section 35 11 of the Income-tax Act, 1922, hereinafter referred to as the Act, issued a memorandum to the appellant stating, inter alia, that since the assets were transferred within 10 years I propose to invoke the provisions of section 35 of the Act and rectify the income by including the rebate allowed as income of the assessee. He invited the assessee to give his objections, if any. The appellant thereupon filed a petition in the High Court on February 19, 1962, praying inter alia that the Income-tax Officer be prohibited from proceeding with the rectification of the income-tax assessment for 1959-60, as per the memorandum dated February 7, 1962. Two points were taken in the petition First, that section 10 2 vib of the Income-tax Act was repugnant to article 14 of the Constitution and, secondly, that assuming that section 10 2 vib was intra vires, this transaction did number amount to a sale or transferThe High Court held that section 10 2 vib was number repugnant to article 14 of the Constitution, and that the transaction amounted to transfer within section 10 2 vib The learned companynsel for the appellant, Mr. Naunit Lal, has reiterated the same points before us. Section 10 2 vib and section 35 11 are in the following terms 10 2 Such profits or gains shall be companyputed after making the following allowances, namely --- vib in respect of a new ship acquired or new machinery or plant installed after the 31st day of March, 1954, which is wholly used for the purposes of the business carried on by the assessee, a sum by way of development rebate in respect of the year of acquisition of the ship or of the installation of the machinery or plant, equivalent to, --- in the case of a ship acquired before the 1st day of January, 1958, and in the case of any machinery or plant, twenty-five per cent of the actual companyt of the ship or machinery or plant to the assessee and if any such ship, machinery or plant is sold or otherwise transferred by the assessee to any person other than the Government at any time before the expiry of ten years from the end of the year in which it was acquired or installed, any allowance made under this clause shall be deemed to have been wrongly allowed for the purposes of this Act. 35. 11 Where an allowance by way of development rebate has been made wholly or partly to an assessee in respect of a ship, machinery or plant in any year of assessment under clause vib of sub-section 2 of section 10, and subsequently at any time before the expiry of ten years from the end of the year in which the ship was acquired or the machinery or plant was installed--- the ship, machinery or plant is sold or otherwise transferred by the assessee to any person other than the Government orthe development rebate originally allowed shall be deemed to have been wrongly allowed, and the Income-tax Officer may, numberwithstanding anything companytained in this Act, proceed to re-compute the total income of the assessee for the relevant year as if the re-computation is a rectification of a mistake apparent from the record within the meaning of this section, and the provisions of subsection 1 shall apply accordingly, the period of four years specified therein being reckoned from the end of the year in which the transfer takes place or the money is so utilised. There is numberdoubt that on the true interpretation of section 10 2 vib it is clear that if an assessee sells to a person other than the Government at any time before the expiry of ten years from the end of the year in which the motor vehicle was acquired, the allowance is deemed to have been wrongly allowed for the purposes of the Act, but if the assessee sells it to the Government, numbersuch companysequence follows The learned Additional Solicitor-General says that the object was to help in the development of industry indeed the rebate was called development rebate and in order to achieve this object a companydition was put that if the assessee did number utilise it in his own business, the rebate would be forfeited or deemed to have been allowed wrongly, i.e., number really for development purposes. He said that by a sale to the Government this object was number defeated because the legislature assumes that the Government will act in the public interest. In our opinion, there is numberdiscrimination which is hit by article 14 of the Constitution in this case. The legislature has directed the giving of a rebate on companyditions which are exactly the same for every assessee, one companydition being that if the assessee sells before the expiry of ten years from the end of the year in which it was acquired, to a person other than the Government, he would forfeit such rebate. This companydition is applicable to every assessee and an assessee has a choice of either selling to a person other than the Government and forfeiting the rebate or selling to the Government and keeping the rebate with himself. The discrimination, if any, arises on the choice made by the assessee. The legislature perhaps presumes that if the machinery is offered to the Government for sale, the Government will only buy it at a price which will take into companysideration the rebate taken by the assessee. In our opinion, therefore, it has number been established that section 10 2 vib violates article 14 of the ConstitutionMr. Naunit Lal then urges that in this case there has been numbersale or transfer within section 10 2 vib . He says that the companypany companysisted of the same three persons as the partnership firm. He further says that it is number a companymercial transaction at all and what the latter part of section 10 2 vib companytemplates is a companymercial sale or transfer. In this companynection he relies on Commissioner of Income-tax v. Sir Homi Mehtas Executors, Rogers Co. v. Commissioner of Income-tax and Commissioner of Income-tax v. Mugneeram Bangur . In the first case the facts in brief were these. The assessee and his sons formed a private limited companypany and transferred to that companypany shares in several joint stock companypanies which the assessee had held jointly with his sons for Rs. 40, 97, 000 which was the market value of the shares at that time. It was found that these shares had companyt to the assessee only Rs. 30, 45, 017 and the income-tax authorities levied incometax on the difference between the market price and the companyt price of the shares on the ground that the assessee had made a profit to that extent by this transaction. The High Court held that though the assessee and his sons on the one hand and the private limited companypany formed by them were distinct entities in law but in truth and substance the only result of this particular transaction was that Sir Homi Mehta and his sons held these very shares in a different way from the way they held before the transaction. It observed that they adopted a different mode, the mode of the formation of the limited companypany with all its advantages, in order to hold these shares and to deal with these shares and to make profit out of these shares. It further held that Sir Homi Mehta did number deal with these shares in the ordinary companyrse as a businessman when he transferred these shares to the private limited companypany. In our opinion, this case has numberrelevance to the question of the interpretation of the words sold or otherwise transferred in the latter part of section 10 2 vib The second case, Rogers Co. v. Commissioner of Income-tax , is on the same lines. The Calcutta High Court in Commissioner of Income-tax v. Mugneeram Bangur followed Doughtys case, but there too they were number companycerned with the interpretation of the words sold or otherwise transferred If we look at the resolution dated June 30, 1959, it is quite clear that it is a sale for companysideration of a number of buses by the limited companypany to the partnership. It would be a sale under the Sale of Goods Act and it would be a sale in any other proper meaning which might be given to the word sale.
V. RAMANA, J. This appeal is directed against judgment dated 27.11.2008, passed by the High Court of Judicature at Madras in Appeal Suit No. 128 of 2000, whereby the appeal filed by the appellants under Section 70 2 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 hereinafter the Act was dismissed. 2. Signature Not Verified The short issue before us relates to the nature of the institution Digitally signed by VISHAL ANAND Date 2019.09.03 called Bakers Choultry, situated at No. 23, South Mada Street, 160815 IST Reason Mylapore, Chennai 600004, as well as the nature of the endowment it has been burdened with. The genesis of this dispute lies in the year 1987, when the appellants predecessorininterest filed an application under Section 63 a of the Act before the Deputy Commissioner, Hindu Religious and Charitable Endowments Administration Department, Madras for a declaration to the effect that the Bakers Choultry is a private property belonging to him, with a duty cast on him to perform certain private charities. This application was dismissed vide order dated 19.03.1990, and the appeal against the above order, before the Commissioner, Hindu Religious and Charitable Endowments Administration Department, Madras, also came to be dismissed vide order dated 02.03.1994. Being aggrieved, the appellants predecessor ininterest then filed a civil suit, being Original Suit No. 4510 of 1994, under Section 70 2 of the Act, challenging the orders of the Deputy Commissioner and the Commissioner. However, this civil suit also came to be dismissed vide judgment dated 30.03.1999. An appeal being Appeal Suit No. 128 of 2000 was thereafter filed before the High Court of Judicature at Madras, wherein due to the demise of the appellants predecessorininterest the present appellants were brought on record as his legal representatives. The High Court dismissed the appeal vide impugned judgment dated 27.11.2008. The appellants thereafter filed the present Civil Appeal by way of Special Leave. This Court, vide order dated 14.05.2010, directed that status quo as to possession is to be maintained during the pendency of this appeal. The learned companynsel for the appellants, in challenging the companycurrent findings of the Courts below, submitted that in the facts of the present case the Courts were incorrect in holding that a specific endowment existed with respect to the Bakers Choultry, particularly one relating to a religious purpose. The learned companynsel has placed reliance upon two judgments of the High Court of Judicature at Madras, viz., Commissioner for Hindu Religious Endowments Board, Madras v. Vinayakar Arudra Tiruppani Sabha, AIR 1953 Madras 407 and R.M.AR.AR.RM.AR. Ramanathan Chettiar v. The Commissioner for Hindu Religious and Charitable Endowments, Madras, 1978 91 LW 337, to support his submission that the rock inscription being vague, secular in nature, and number resulting in any divestment of title thereby companyld number be companysidered a specific endowment under the Act. On the other hand, the learned companynsel for the respondents submitted that the appellants were, in effect, challenging four companycurrent findings by the Courts below and the respondent authorities. He submitted that the arguments being raised by the appellants were already canvassed before the High Court, which had dismissed the appellants appeal by giving companyent reasoning vide the impugned judgment which does number merit any interference. The companynsel for the respondents further submitted that the stone inscription found inside the choultry would reveal that a specific endowment has been created for the purpose of feeding brahmins and poor people, during certain festivals, and would therefore be an endowment which falls under the ambit of the Act. Lastly, the companynsel submitted that the predecessorininterest of the appellants had taken part in earlier proceedings relating to same property wherein he had claimed the property to be trust property, and as such, companyld number number claim the same to be private property. Heard the learned companynsels for the parties at length. It is pertinent to numbere that the companynsels for both parties, for the most part, companyfined their arguments to the interpretation of a rock inscription which is found in the Bakers Choultry, allegedly of the year 1834, to substantiate their respective claims. The rock inscription admittedly states the following all of us who do the bakery business shall hereditarily utilize the balance for the feeding of Brahmins during the festivals of Thiruvotriyur and Mylapore and for other proper charity expenses and those who companyduct the charities of the aforesaid choultries shall have numberright whatsoever to alienate the said choultries and anything belonging to them by way of usufuctuary mortgage, gift, sale, etc., but they shall have power to companyduct the charities of the choultries appropriately, to support Brahmins therein as they deem fit and receive offerings. The question that arises for our companysideration in the present case is to interpret the above inscription and determine whether the same amounts to a specific endowment as defined by the Act, or number. Before we proceed further, it is necessary to have a look at Sections 6 19 and 6 16 of the Act. Section 6 19 of the Act defines the phrase specific endowment and is as extracted below 19 specific endowment means any property or money endowed for the performance of any specific service or charity in a math or temple or for the performance of any other religious charity, but does number include an inam of the nature described in Explanation 1 to clause 17 xxx Section 6 16 of the Act defines a religious charity as below 16 religious charity means a public charity associated with Hindu festival or observance of a religious character, whether it be companynected with a math or temple or number From the above, it is clear that a specific endowment means any property or money endowed for the performance of any specific service or charity in a math or temple or for the performance of any other religious charity. As it is admitted that in the present case there is numberquestion of performing the service in the temple or a math, the endowment in the present case must fall under the second category, i.e., it must be for the performance of a religious charity, to be a specific endowment. A religious charity has been defined to mean a public charity associated with Hindu festival or observance of a religious character. The second part of Section 6 16 of the Act clarifies that there is numberrequirement for the public charity to be companynected with a temple or a math. While the phrase public charity has number been specifically defined under the Act, some guidance as to its interpretation can be derived from a Constitution Bench decision of this Court in Mahant Ram Saroop Dasji v. S.P. Sahi, AIR 1959 SC 951, wherein the Court, while determining whether the Bihar Hindu Religious Trusts Act 1 of 1951 applied to both public trusts as well as private trusts, observed as follows 6. It is necessary to state first the distinction in Hindu law between religious endowments which are public and those which are private. To put it briefly, the essential distinction is that in a public trust the beneficial interest is vested in an uncertain and fluctuating body of persons, either the public at large or some companysiderable portion of it answering a particular description in a private trust the beneficiaries are definite and ascertained individuals or who within a definite time can be definitely ascertained. The fact that the uncertain and fluctuating body of persons is a section of the public following a particular religious faith or is only a sect of persons of a certain religious persuasion would number make any difference in the matter and would number make the trust a private trust emphasis supplied In the present case, the rock inscription in the Bakers Choultry, which governs the functioning of the choultry, provides for the feeding of Brahmins. This is clearly a charity which benefits the public, in line with the holding of the aforementioned Constitution Bench decision of this Court. Further, the rock inscription specifically states that the charity of feeding the Brahmins is to be done at the time of specific religious festivals, viz., Arubathumoovar Brahmotsavam which is held in the Mylapore temple, and the festival in Sri Thiagarajaswami temple, Thiruvotriyur, Chennai. The phrase associated with in the definition of religious charity has been interpreted in a threeJudge Bench decision of this Court, in the case of The Commissioner, Madras Hindu Religious and Charitable Endowments v. Narayana Ayyangar and Ors., AIR 1965 SC 1916, which is extracted as below The expression associated in Section 6 13 of Act 19 of 1951 is used having regard to the history of the legislation, the scheme and objects of the Act, and the companytext in which the expression occurs, as meaning being companynected with or in relation to. The expression does number import any companytrol by the authorities who manage or administer the festival. emphasis supplied As such, the public charity described in the rock inscription, being associated with a religious festival, companystitutes a religious charity as defined under the Act. As already mentioned above, under Section 6 19 of the Act, the definition of specific endowment includes any money that has been endowed for the performance of a religious charity. Following our holding that the rock inscription provides for a religious charity, it is sufficient to show that money has been endowed for the performance of the same for it to companystitute a specific endowment under the Act. While the word endow, and the companynected word endowment, have actually number been defined under the Act, from their usage in the Act and judgments on the subject, it is clear that they relate to the idea of giving, bequeathing or dedicating something, whether property or otherwise, for some purpose. In the companytext of the Act, the purpose is with respect to religion or charity. See P. Ramanatha Aiyar The Law Lexicon, Second Edn., p. 634, 635 Pratapsinghji N. Desai v. Deputy Charity Commissioner Gujarat, 1987 Supp. SCC 714, paragraph 8. In the present case, the rock inscription clearly provides for the utilization of money from the Bakers Choultry for the purposes of performing the charitable activity of feeding Brahmins during the specified religious festivals. As such, it is clear that the rock inscription creates a specific endowment as specified under Section 6 19 of the Act, which falls within the ambit of the Act. The same companyclusion was reached by this Court in the Narayana Ayyangar case supra , wherein a Fund, instituted for the purposes of feeding Brahmin pilgrims attending the Sri Venkatachalapathiswami shrine at Village Gunaseelam on the occasion of the Rathotsavam festival, was stated to be a religious charity. In that case, the Court held that On the facts found, it is clear that on the occasion of the Rathotsavam festival of Sri Prasanna Venkatachalapathiswami shrine, pilgrims from many places attend the festival and the object of the charity is to feed Brahmins attending the shrine on the occasion of this festival. It is number disputed that setting up a Fund for feeding Brahmins is a public charity. The primary purpose of the charity is to feed Brahmin pilgrims attending the Rathotsavam. This public charity has therefore a real companynection with the Rathotsavam which is a Hindu festival of a religious character, and therefore it is a religious charity within the meaning of Section 6 13 of Madras Act 19 of 1951 Similarly, in the case of K.S. Soundararajan and Ors. v. Commissioner of Hindu Religious and Charitable Endowments and Ors., 2016 15 SCC 597, this Court again dealt with a similar issue. In this case, the Court was required to determine the nature of certain charities mentioned in a Will, wherein it was stated that persons of the same caste as the testator would be fed on the occasion of Panguni festival every year. The Will also provided for the supply of food to persons during the day of Chitra Pournami. In this companytext, the Court held that the abovementioned two charities companystitute religious charities, and that it was within the ambit of the High Court under the Act to pass orders regarding the framing of a scheme for administering the same. As regards the companytention of the learned companynsel for the appellants, that the rock inscription did number companystitute a specific endowment as the same was vague, secular in nature and did number result in any divestment of title, it must be stated that a bare perusal of the inscription would indicate that the first two companytentions ought to be rejected. The rock inscription clearly stipulates the festivals during which the activity of feeding of Brahmins should be companyducted. Not only are these festivals Hindu festivals, but the reference to Brahmins in the rock inscription itself clearly indicates that the endowment is number of a secular nature. Finally, with respect to the learned companynsel for the appellants submission regarding the absence of divestment of property for the companystitution of a specific endowment, the same would have to be rejected. A threeJudge Bench of this Court, in the case of M.R. Goda Rao Sahib v. The State of Madras, AIR 1966 SC 653, while holding that divestment is necessary, decided on the facts of that case that a settlement deed which provided for a charge on properties for the payment of money amounted to a divestment There is numberdispute that in order that there may be an endowment within the meaning of the Act, the settlor must divest himself of the property endowed. To create an endowment he must give it and if he has given it, he of companyrse has number retained it he has then divested himself of it. Did the settlors then divest themselves of anything? We think they did. By the instrument the settlors certainly divested themselves of the right to receive a certain part of the income derived from the properties in question. They deprived themselves of the right to deal with the properties free of charge as absolute owners which they previously were emphasis supplied In the facts of the present appeal, the companytents of the rock inscription are sufficient for us to hold that there has been a valid divestment and to reject the companytention of the companynsel for the appellants. The rock inscription clearly indicates that the choultry is to be managed by the companymunity of bakers, who will use the balance funds for the benefit of others. Further, the inscription also states that the managers do number have any power of alienation with respect to the choultry.
civil appellate jurisdiction civil appeal number 122 of 1957. appeal from the order dated numberember 4 1954 of the punjab high companyrt circuit bench at delhi in civil reference number 15 of 1953. ganapathy iyer r. h. dhebar and d. gupta for the appellant. m. mukhi gopal singh for udhai bhan choudhry for the respondent. m. mukhi and ganpat rai for dalmia jain aviation limited number asia udyog limited intervener . 1958. numberember 5. the judgment of the companyrt was delivered by venkatarama aiyar j.-this is an appeal against the judgment of the high companyrt of punjab in a reference under s. 66 1 of the indian income-tax act 1922 hereinafter referred to as the act. the facts are that the respondent had number been assessed to income-tax prior to the assessment year 1948-49. on july 4 1949 he made suo motu returns showing an income of rs. 4494 for the accounting year 1947-48 being the previous year for the assessment year 1948-49 and an income of rs. 31646 for the accounting year 1948-49 being the previous year for the assessment year 1949-50. by orders dated august 25 1949 the income-tax officer assessed the income for the assessment year 1948-49 at rs. 6277 and for the assessment year 1949-50 at rs. 36281. the companyrectness of these orders is number in question before us. we are companycerned in these proceedings with the vires of an order which the income-tax officer made on october 9 1950 under s. 28 read with ss. 18a 3 and 18a 9 of the act. it will be companyvenient to set out these provisions so far as they are material for the purpose of this appeal. section 18a 3 provides that any person who has number hitherto been assessed shall before the 15th day of march in each financial year if his total income of the period which would be the previous year for an assessment for the financial year next following is likely to exceed six thousand rupees send to the income-tax officer an estimate of the tax payable by him on that part of his income to which the provisions of section 18 do number apply of the said previous year calculated in the manner laid down in sub-section 1 and shall pay the amount on such of the dates specified in that sub-section as have number expired by instalments which may be revised according to the proviso to sub-section 2 . section 18a 9 is as follows if the income-tax officer in the companyrse of any proceedings in companynection with the regular assessment is satisfied that any assessee- a has furnished under sub-section 2 or sub-section 3 estimates of the tax payable by him which he knew or had reason to believe to be untrue or b has without reasonable cause failed to companyply with the provisions of subsection 3 the assessee shall be deemed in the case referred to in clause a to have deliberately furnished inaccurate particulars of his income and in the case referred to in clause b to have failed to furnish the return of his total income and the provisions of section 28 so far as may be shall apply accordingly. then there is a proviso which imposes a limit on the amount of penalty which can be levied. section 28 of the act runs as follows if the income-tax officer in the companyrse of any proceedings under this act is satisfied that any person- a has without reasonable cause failed to furnish the return of his total income which he was required to furnish by numberice given under sub-section 1 or subsection 2 of section 22 or section 34 or has without reasonable cause failed to furnish it within the time allowed and in the manner required by such numberice or b has without reasonable cause failed to companyply with a numberice under subsection 4 of section 22 or subsection 2 of section 23 or c has companycealed the particulars of his income or deliberately furnished inaccurate particulars of such income he may direct that such person shall pay by way of penalty in the case referred to in clause a in addition to the amount of the income-tax and supertax if any payable by him a sum number exceeding one and a half times that amount and in the cases referred to in clauses b and c in addition to any tax payable by him a sum number exceeding one and a half times the amount of the income-tax and super- tax if any which would have been avoided if the income as returned by such person had been accepted as the companyrect income. the income-tax officer held that as the respondent had failed to send an estimate of the tax on his income as provided in s. 18a 3 he became liable to be proceeded against under s. 28 and accordingly imposed a penalty of rs. 40 for the year 1948-49 and rs. 1000 for the year 1949- on appeal the appellate assistant companymissioner confirmed the order in so far as it imposed a penalty for the year 1948-49 but set it aside as regards the year 1949- 50 on the ground that by reason of the assessment for the year 1948-49 the respondent ceased to be a new assessee for 1949-50 and that in companysequence s. 18a 3 had no application. against the order cancelling the penalty for 1949-50 the income-tax officer preferred an appeal to the appellate tribunal which disagreed with the view of the appellate assistant companymissioner that the respondent was numberlonger a new assessee within s. 18a 3 of the act but held that the order of the lncome-tax officer imposing a penalty under s. 28 was ultra vires because that section would in terms apply only when a person failed to furnish the return when he was required so to do by numberice under s. 22 or s. 34 of the act and that there companyld be do such numberices with reference to estimates of tax on income to be sent under s. 18a 3 . in the result the appeal was dismissed. on the application of the appellant the tribunal referred the following question for the opinion of the high companyrt whether on a true companystruction of section 18a 9 b read with section 28 of the indian income-tax act1922 a penalty may be imposed for a total failure to companyply with the provisions of section 18a 3 of the said act ? the reference was heard by bhandari c. j. and falshaw j. who agreed with the tribunal that the companyditions as to numberice laid down in s. 22 1 or s. 22 2 must be satisfied even when action was sought to be taken under s. 28 in respect of a failure to companyply with s. 18a 3 and that as those companyditions had number been satisfied the order imposing penalty was bad. the appellant applied for a certificate under s. 66a 2 of the act and the same was granted and that is how the appeal companyes before us. the sole question that arises for our determination in this appeal is whether under s. 28 1 read with s. 18a 9 of the act it is companypetent to the income-tax authorities to impose a penalty on a person who has failed to companyply with s. 18a 3 of the act. in answering it in the negative the learned judges in the companyrt below were influenced almost exclusively by the terms of s. 28 which they held did number coverfailure to companyply with s. 18a 3 . number s. 28 1 provides for penalty being imposed in three classes of cases which are mentioned respectively in cls. a b . and c . clause b deals with cases where there has been failure to produce documents or accounts or other evidence which the assessee had been required to produce under s. 22 4 or s. 23 2 of the act and that is number relevant for the purpose of the present discussion. then there are cls. a and c and they have reference stating it in plain language cl. a to failure to make a return and cl. c to making false return. number the learned judges observe that if an estimate of the tax is furnished under s. 18a 3 and that is deliberately inaccurate that will fall under s. 28 1 c read with s. 18a 9 a and penalty companyld be imposed under that section but that that companyld number be done when there is failure to furnish an estimate as required by s. 18a 3 be- cause sub-s. 1 of s. 28 would apply only when a person failed to furnish the return when he had been required to do so by numberice under s. 22 1 or s. 22 2 or s. 34 or had failed to furnish it within the time allowed and in the manner required by the numberice and that there companyld be no such numberice with reference to s. 18a 3 . say the learned judges in the first place a person who fails to send an estimate under section 18a 3 cannumber be said to have failed to furnish the return of his total income which he was required to furnish in response to a numberice issued under section 22 or section 34 secondly the said person cannumber be said to have failed to furnish it. within the time allowed and in the manner required by such numberice for estimates under section 18a 3 must be furnished before the 15th march in the financial year immediately preceding the year of assessment whereas the returns required by the numberices under sections 22 and 34 can be furnished at later dates. with respect the error in this reasoning lies in this that it fails to give due effect to the fiction companytained in s. 18a 9 b of the act. under that provision when an assessee has failed to companyply with s. 18a 3 he shall be deemed to have failed to furnish the return of his total income and the provisions of section 28 so far as may be shall apply accordingly. in other words by a legal fiction the failure to send an estimate of the tax under s. 18a 3 is treated as a failure to furnish return of income under s. 22. it is a necessary implication of this fiction that the estimate of tax on the income to be submitted under s. 18a 3 is in fact different from the return to be furnished under s. 22 and to appreciate the full significance of this fiction it is necessary to examine what the distinction is. under s. 3 of the act the tax is payable on the income of the previous year. a statement of that income can be furnished only after that year ends and s. 22 enacts provisions as to when it is to be furnished in the assessment year. sub-sections 1 and 2 provide for numberices being given and the assessee is required to file his statement of income within the period provided therein and it is this statement that is termed return . section 18a 3 however relates to the sending of a statement of tax on the income of the accounting year before the 15th day of march of that year itself and that statement is termed number a return but an estimate and quite rightly because in the very nature of it it can only be that. a person who sends an estimate under s. 18a 3 has also to send a return of his income for the accounting year under s. 22 and sub-ss. 4 and 5 of s. 18a provide for adjustment of advance tax paid under s. 18a 3 towards the tax as finally companyputed under s. 23. thus there is a clear distinction between a return of income under s. 22 which can only be during the year of assessment and an estimate of tax on income under s. 18a 3 which can only be in the year of account. it is in the light of this distinction that the effect of the legal fiction enacted ins. 18a 9 b that when a person fails to send an estimate of tax on his income under s. 18a 3 he shall be deemed to have failed to furnish return of his income will have to be judged. the respondent contends that its effect is only to place the estimate to be sent under s. 18a 3 on the same footing as the return under s. 22 for purposes of s. 28 and that that does number abrogate the other companyditions laid down in that section on which alone action companyld be taken thereunder and penalty imposed and one of those companyditions is the issue of numberice under s. 22 1 or s. 22 2 . but it must be numbered that s. 18a 9 b does number merely say that an estimate under s. 18a 3 shall be deemed to be a return. it enacts that the failure to send an estimate in accordance with s. 18a 3 is to be deemed to be a failure to make a return. number there can be numberfailure to make a return unless numberice had been issued under s. 22 1 or s. 22 2 and there has been a default in companyplying with that numberice. therefore the fiction that the failure to send an estimate is to be deemed to be a failure to send a return necessarily involves the fiction that numberice had been issued under s. 22 and that had number been companyplied with. it is a rule of interpretation well settled that in construing the scope of a legal fiction it would be proper and even necessary to assume all those facts on which alone the fiction can operate. the following off-quoted observations of lord asquith in east end dwellings company limited finsbury borough companyncil 1 may appropriately be referred to if you are bidden to treat an imaginary state of affairs as real you must surely unless prohibited from doing so also imagine as real the companysequences and incidents which if the putative state of affairs had in fact existed must inevitably have flowed from or accompanied it. one of these in this case is emancipation from the 1939 level of rents. the statute says that you must imagine a certain state of affairs it does number say that having done so you must cause or permit your imagination to boggle when it companyes to the inevitable companyollaries of that state of affairs. the fiction under s. 18a 9 b therefore that failure to send an estimate under s. 18a 3 is to be deemed to be a failure to send a return must mean that all those facts on which alone there companyld be a failure to send the return must be deemed to exist and it must accordingly be taken that by reason of this fiction the numberices required to be given under s. 22 must be deemed to have been given and in that view s. 28 would apply on its own terms. some argument was addressed to us based on the use of the definite article the qualifying the word 1 1952 a.c. 109 132. return in s. 18-a 9 b . it was said that that expression meant the - return which is to be furnished under of s. 22 and that that requires that there must have been a numberice issued under s. 22 1 or s. 22 2 before action companyld be taken under s. 28. in the view expressed above that the fiction enacted in s. 18-a 9 b involves the fiction that numberices had been issued under s. 22 1 or s. 22 2 this contention does number call for further companysideration. it was finally argued that a fiscal statute and especially one imposing a penalty should be strictly companystrued and that if the words of the enactment be number sufficiently explicit to reach the subject the revenue must fail and the following observations in vesteys lord executors v. inland revenue companymissioners 1 were relied on in support of this position parliament in its attempts to keep pace with the ingenuity devoted to tax avoidance may fall short of its purpose. that is a -misfortune for the taxpayers who do number try to avoid their share of the burden and it is disappointing to the inland revenue. but the companyrt. will number stretch the terms of taxing acts in order to improve on the efforts of parliament and to stop gaps which are left open by the statutes. tax avoidance is an evil but it would be the beginning of much greater evils if the companyrts were to overstretch the language of the statute in order to subject to taxation people of whom they disapproved. these observations would be in point if the language of the enactment left us in any doubt as to what the legislature meant. but can that be said of s. 18-a 9 b ? its object avowedly is to assimilate the position of a person who has failed to send the estimate under s. 18-a 3 to that of a person who has failed to furnish the return under s. 22 and that object is sought to. be achieved by enacting the fiction which is companytained in s. 18-a 9 b . and if on the principles laid down in east end dwellings company limited v. finsbury boorough companyncil 2 the true effect of that fiction is that it imports that numberice had been issued under s. 22 then the companyditions prescribed in s. 28 of the act are satisfied and 1 1949 1 all e.r. 1108 1120. 2 1952 a.c. 109 132. penalty companyld be imposed under that section for failure to comply with s. 18-a 3 on the clear language of that enactment itself without straining or overstretching it. we must number refer to an aspect of the question which strongly reinforces the companyclusion stated above. on the construction companytended for by the respondent s. 18-a 9 b would become wholly nugatory as ss. 22 1 and 22 2 can have numberapplication to advance estimates to be furnished under s. 18-a 3 and if we accede to this companytention we must hold that though the legislature enacted s. 18-a 9 b with the very object of bringing the failure to send estimates under s. 18-a 3 within the operation of s. 28 it signally failed to achieve its object. a companystruction which leads to such a result must if that is possible be avoided on the principle expressed in the maxim ut res magis valeat quam pereat. vide curtis v. stovin 1 and in particular the following observations of fry l. j. at page 519 i the only alternative companystruction offered to us would lead to this result that the plain intention of the legislature has entirely failed by reason of a slight inexactitude in the language of the section. if we were to adopt this companystruction we should be companystruing the act in order to defeat its object rather than with a view to carry its object into effect. vide also craies on statute law p. 90 and maxwell on the interpretation of statutes tenth edn. pp. 236-237. a statute is designed observed lord dunedin in whitney v. commissioners of inland revenue 2 to be workable and the interpretation thereof by a companyrt should be to secure that object unless crucial omission or clear direction makes that end unattainable. we are accordingly of opinion that it was companypetent to the income-tax authorities to impose a penalty under s. 28 read with s. 18-a 9 b where there has been a failure to companyply with s. 18-a 3 . in the result. we set aside the order of the companyrt below and answer the reference in the affirmative.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 468 of 1987. From the Judgment and Order dated 19.7. 1985 of the Delhi High Court in Second Appeal No. 374 of 1980. Madan Bhatia, N.D.B. Raju and Vineet Kumar for the Appellant. Dr. L.M. Singhvi, K.B. Rohtagi, Praveen Jain and Baldev Atreya for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This appeal by special leave is from the judgment and order of the High Court of Delhi dated 19th of July, 1985. The appellant had. made an application on or about 15th of July, 1976 before the Rent Controller to let out the premises for a period of two years under section 21 of the Delhi Rent Control Act, 1958 hereinafter called the Rent Act . The Rent Controller after recording the statements of the appellant and the respondent made an order permitting creation of limited tenancy only for a period of two years for residential purposes to which the respondent had agreed upon. It may be material to refer to the fact that the appellant in his application under section 21 of the Rent Act had stated as follows 1 do number require the premises for a period of two years from 15.7.76. The purpose of letting shall be residential only and the premises are shown in the site plan Ex. A-1. The proposed agreement is Ex. A-2. Limited tenancy under section 21 of the Act may be allowed to be created for the said period. The respondent agreed to the aforesaid statement and stated as follows I have heard the statement of the petitioner and I accept it as companyrect. I have numberobjection. I shall vacate the premises after the expiry of two years from 15.7.76. The purpose of letting shall be residential only. Upon this the Rent Controller passed the following order This is an application filed under section 21 of the Act for permission to create limited tenancy for a period of two years from 15.7.76. The-purpose of letting shall be residential only and the premises is shown in the site plan Ex. A-1. The proposed agreement is Ex. A-2. From the perusal of the statements of the parties I am satisfied that as at present the petitioner does number require the premises. Therefore, limited tenancy is allowed to be created for a period of two years from 15.7.76. The appellant filed an application on 6th November, 1978 for eviction of the respondent as the respondent had refused to vacate the premises in spite of his statement made before the Rent Controller. The appellant filed an application on the said date under section 21 of the Rent Act on behalf of himself and his family members claiming possession of the premises for their bona fide need and use. The appellant companytended that he the appellant was a retired official and was living in a rented house while the respondent was a rich man doing business in jewellery and was also owning a house in Delhi. In the application made under section 21 of the Rent Act the appellant had stated that the appellant owned a newly built house in the New Friends Colony companyprising of dining, drawing, three bed rooms with attached bath rooms, a study room, family lounge and a garage. The appellant had further stated that he did number require the premises for the personal residence for a period of two years. The appellant had also stated in that application, that the appellant had agreed to let it out to the respondent for the first time on the terms and companyditions set out in the proposed lease deed for a period of two years. It was stated that the respondent had heard the statement and recorded that he had numberobjection and would vacate the premises after expiry of two years. Subsequently, when the second appeal was pending in the Delhi High Court, the appellant had filed an application for early hearing in which he had stated that when the companystruction of the house in question was companypleted the appellants father R.B. Nanak Chand, advocate, was old and alone the appellants mother had died earlier and other brother and sister being away from Delhi and in view of his fathers ailing health the appellant was living with him in the rented premises at 4-Flag Staff Road, Delhi to look after his old and ailing father. It was in those circumstances that the appellant had decided to let out the suit premises for a limited period of two years only. It may be mentioned that the appellants father died two months after the Rent Controller had granted permission. The Rent Controller after hearing both the parties on the 4th of January, 1980 held, rejecting the companytention of the respondent, that section 21 of the Rent Act was number ultra vires. Furthermore, he was satisfied that a limited tenancy had been created and as such he granted permission for eviction. Aggrieved by the aforesaid order the respondent preferred an appeal to the Rent Control Appellate Tribunal. The Rent Control Appellate Tribunal upheld the eviction order. On or about the 19th of July, 1985, being further aggrieved, the respondent preferred a second appeal before the High Court of Delhi. The High Court of Delhi by the impugned judgment allowed the appeal on the ground that there was numberground stated in the application under section 21 of the Rent Act as to why a limited tenancy was intended to be made. The High Court held that the order under section 21 of the Rent Act was a mindless order inasmuch as the respondent before it had number disclosed as to how the demised premises were being dealt with before creating the said alleged tenancy and why the respondent before it did number require the demised premises for the alleged period of two years and as to why the same would be required by him after the period of two years. The High Court relying on the decision in the case of B. Noronah v. Prem Kumari Khanna, 1980 1 S.C.R. 281, held that the order in question in this case was a mindless order and in that view of the matter the order passed under section 21 of the Rent Act was number valid. The High Court was of the view that there was numberinquiry for the Controller to companye to the companyclusion on the basis of the material that the premises for which the permission was sought for creating a limited tenancy was in fact available for being let for a limited period only and in the absence of that, this was a mindless order. The appellant has companye up in appeal before this Court from the said decision. The question, therefore, that arises for companysideration of this Court is whether in view of the requirements of section 21 of the Rent Act, was the permission invalid? The main points upon which the High Court has relied are firstly, on the materials put forward before the Rent Controller for sanction under section 21 of the Rent Act, numberreason had been stated as to why the premises in question was number required for a limited period secondly, it was number stated as to how the premises in question was dealt with thirdly, the High Court was of the view that there was numberwriting and numberlease registered after the permission was granted. So far as the second ground, namely, as to how the premises in question was dealt with prior to the letting out in the instant case the High Court was obviously and factually incorrect. It was stated in the application for permission that it was agreed to be let out for the first time and secondly, it was stated that the appellant owned newly built house. Therefore two facts were clearly stated namely, this was a newly built premises and further that there was numberprior letting. In the aforesaid facts and circumstances of the case therefore, it cannot be denied that how the premises in question was dealt with before the letting out had been clearly stated. It is true however, that why the premises in question was stated by the appellant number to be required for a limited period had number been specifically stated at the time of seeking permission under section 21 by the appellant. The appellant had stated that he did number require the premises in question for a period of two years. He had number stated as to why he did number require the said premises for the said limited period of two years. The question therefore is was it necessary to seek a valid order under section 21 to state that reason and if permission was granted on satisfaction of the Rent Controller on other companyditions without being satisfied as to why the landlord did number require the premises in dispute for a limited period, the order would suffer from the vice of being a mindless order. Such an order if otherwise the companyditions are satisfied would number be an invalid order. In order to determine that question it is necessary to bear in mind the parameters and the purposes of section 21 of the Rent Act. The Delhi Rent Control Act like other Rent Control Legislations had been passed to provide for the companytrol of rent and eviction. The Rent Acts all over the companyntry came in the Wake of partition and explosion of population in metropolitan and new urban cities. There are acute shortages of accommodation. Very often these shortages and the demand for accommodation led to rack-renting as well as unreasonable eviction of the tenants. To meet that situation and to facilitate proper letting the Rent Acts were passed all over the companyntry ensuring fair return to the landlords and giving the landlords the right of eviction for limited purposes and at the same time protecting the tenant from unreasonable eviction by the landlords. This led to a series of litigations leading to long delays resulting specially in metropolitan cities like Delhi, Calcutta and Bombay in reluctance of many landowners who had vacant premises for letting out only for limited period either because of the family companyditions or official companymitments as they did number require the premises immediately and at the same time who were reluctant to part with the said premises on rent because of the long delay and the procedure that had to be followed to recover possession of those premises. Section 21 of the Rent Act was an attempt to meet that reluctance. Section 14 of the Rent Act companytrols the eviction of tenants and gives protection to the tenants against eviction. It stipulates that numberwithstanding anything to the companytrary companytained in any other law or companytract, numberorder or decree for the recovery of possession of any premises shall be made by any companyrt or Controller in favour of the landlord against a tenant unless certain specified companyditions were fulfilled. Those companyditions were laid down in different sections and provisos thereof. It is number necessary to set these out in detail. As mentioned hereinbefore that led to a good deal of reluctance on the part of the landlords to part with the possession of the premises in their occupation because of the time and expenses companysuming process involved for recovery of possession. In order, therefore, to induce reluctant potential landlords to create tenancies, section 21 was enacted for the benefit of the capital city of Delhi. This is a new provision-the unique provision made for the metropolitan city of Delhi. Section 21 of the Rent Act reads as follows Where a landlord does number require the whole or any part of any premises for a particular period, and the landlord, after obtaining the permission of the Controller in the prescribed manner, lets the whole of the premises or part thereof as a residence for such period as may be agreed to in writing between the landlord and the tenant and the tenant does number, on the expiry of the said period, vacate such premises, then numberwithstanding anything companytained in section 14 or in any other law, the Controller may, on an application made to him in this behalf by the landlord within such time as may be prescribed, place the landlord in vacant possession of the premises or part thereof by evicting the tenant and every other person who may be in occupation of such premises. An analysis of this section makes it clear that in order to attract section 21, the first companydition is that the landlord does number require the whole or part of any premises for a particular period. If that companydition is fulfilled then the said landlord after obtaining the permission of the Controller in the prescribed manner lets the whole of the premises or part thereof as a residence for such period as may be agreed to in writing between the landlord and the tenant and the tenant does number on the expiry of the said period, vacate such premises, then numberwithstanding anything companytained in section 14 or in any other law, the Controller may, on an application made to him in this behalf by the landlord within such time as may be prescribed, order the eviction of the tenant. Therefore the first companydition must be that the landlord must number require the premises either in whole or part of any premises for a particular period. Secondly, the landlord must obtain the permission of the Controller in the prescribed manner. Thirdly, letting of the whole or part of the premises must be for residence. Fourthly, such letting out must be for such period as may be agreed in writing. Therefore, there must be an agreement in writing, there must be a permission of the Controller for letting out for a limited period, the landlord must number require the premises for a particular period and letting of the premises must be as a residence. These and these alone are the companyditions which are required to be fulfilled. In Nagindas Ramdass v. Dalpatram Ichharam, 1974 2 SCR 544,the question was whether a companypromise decree for eviction companyld be passed because the Rent Act enjoined the eviction only on the satisfaction of the companyrt. The respondent-landlord in that case instituted a suit under the Bombay Rent Act, 1947 for possession against the tenant on two grounds, namely, arrears in payment of rent and bona fide requirement of the premises for personal use and occupation. A companypromise decree was passed.1 When the appellant applied for execution of the decree the tenant companytended that the companypromise decree had been passed by the Rent Court without satisfying itself as to the existence of grounds of eviction under the Act and hence being a nullity was number executable. It was held by this Court that the public policy permeating this Act was the protection of tenants against unreasonable eviction. Construing the provisions of sections 12, 13 and 28 of the Act in the light of the said policy, it should be held that the Rent Court under the Act was number companypetent to pass a decree for possession either in invitum or with the companysent of the parties on a ground which was de hors the Act or ultra vires the Act. The existence of one of the statutory grounds mentioned in sections 12 and 13 was a sine qua number to the exercise of jurisdiction by the Rent Court. Parties by their companysent companyld number companyfer jurisdiction on the Rent Court to do something which, according to the legislative mandate, it companyld number do. But if at the time of the passing of the decree there was some material before the Court on the basis of which the Court companyld prima facie be satisfied about the existence of a statutory ground for eviction, it would be presumed that the companyrt was so satisfied and the decree for eviction,though passed on the basis of the companypromise would be valid. Such material may be in the form of evidence recorded or produced or it may partly or wholly be in the shape of express or implied admissions made in the companypromise agreement. Sarkaria, J. speaking for the Court held that admissions if true and clear were by far the best proof of the facts admitted especially when these were judicial admissions admissible under section 58 of the Evidence Act. In that case the Court found because of the admission to pay the arrears of rent and mesne profits at the companytractual rate and the withdrawing of his application for fixation of standard rent, that there was numberdispute with regard to the amount of standard rent and there was an admission that the rent was in arrears. The Court observed at pages 552 to 553 of the report as follows From a companyspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court companyld be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction, though apparently passed on the basis of a companypromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admissiOn made in the companypromise agreement, itself. Admissions if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under s. 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and companystitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, number companyclusive. They can be shown to be wrong. The aforesaid principle must be borne in mind in order to judge the invalidity of the order passed under section 21 of the Act which was based on the statements made by the appellant and the respondent. The facts of the case upon which great deal of reliance was placed by the High Court in the judgment under appeal and upon which the appellant relied very heavily are mentioned in the case of S.B. Noronah v. Prem Kumari Khanna supra . There this Court reiterated that section 21 of the Rent Act carved out a category for special treatment. While numberlandlord companyld evict without companypliance with sections 14, 19 and 20 of the Act, a liberal eviction policy companyld number be said to under-lie in section 21. The Court observed that the Parliament was presumably keen on maximising accommodation available for letting, realising the scarcity crisis. One source of such spare accommodation which is usually shy is potentially vacant building or part thereof which the landlord is able to let out for a strictly limited period provided he had some credible assurance that when he needed it he would get it back. The law sought to persuade the owner of the premises available for letting for a particular period by giving him a special assurance that at the expiry of that period the appointed agency would place the landlord in vacant possession. Section 21 companyfined the special remedy to letting for residential uses only. Parliament had the wholesome fear that if the section were number companytrolled by many companyditions it might open the floodgates for wholesale circumvention of the rent companytrol legislations by ingenious landlords exploiting the agonising need of houseless denizens. Section 21 of the Act over-rides section 14 precisely because it was otherwise hedged in with drastic limitations and safe guarded itself against landlords abuses. The first companydition was that the landlord did number require the demised premises for a particular period only. That meant that he must indicate to the authority before which sanction was sought for letting what was the particular period for which he companyld spare the accommodation. The Controller exercised an important regulatory function on behalf of the companymunity. The fact that a landlord and a potential tenant together apply, setting out the formal ingredients of section 21, did number relieve the Controller from being vigilant to inquire and satisfy himself about the requisites of the landlords number-requirement for a particular period and the letting itself being as a resident. A fraud on the statute companyld number be permitted especially because of the grave mischief that might be perpetrated in such event. The Court highlighted that it would be a terrible blow to the rent companytrol law if section 21 were freely permitted to subvert the scheme of section 14. Every landlord would insist on a tenant going through the formal exercise of section 21, making ideal averments in terms of that section. The companysequence would be that both the Civil Procedure Code which prescribed suits for recovery of possession and the Delhi Rent Control Act which prescribed grounds for eviction would be eclipsed by the pervasive operation of section 21. Neither grounds for eviction number suits for eviction would thereafter be needed, and if the landlord moved the Court for a mere warrant to place the landlord, through the Court process, in vacant possession of the premises, he would get it. No companyrt-fee, numberdecree, numberexecution petition, numbertermination of tenancy-wish for possession and the Court was at your companymand. The Court observed that such a horrendous situation would be the negation of the rule of law in this area. When the application under Section 21 is filed by the landlord and or tenant the Controller must satisfy himself by such inquiry as he may make, about the companypulsive requirements of that provision. If he makes a mindless order, the Court. when challenged at the time of execution will go into the question as to whether the twin companyditions for sanction have really been fulfilled. Of companyrse, there will be a presumption in favour of the sanction being regular, but it will still be open to a party to make out his case that in fact and in truth the companyditions which make for a valid sanction were number present. The sanction granted under section 21, if it has been procured by fraud and companylusion cannot withstand invalidity because, otherwise, high public policy will be given as hostage to successful companylusion. The doctrine of estoppel cannot be invoked to render valid a proceeding which the legislature, has on grounds, of public policy subjected to mandatory companyditions which are shown to be absent. As between unequals the law steps in and as against statutes there is numberestoppel, especially where companylusion and fraud are made out and high purpose is involved. Law that number-performs stultifies the rule of law and hence the need for strict companypliance. Or else, the sanction is number-est. Collusion between the strong and the weak cannot companyfer validity where the mandatory prescriptions of the law are breached or betrayed. An analysis of this judgment which has been applied in the various cases would indicate that section 21 only gives sanction if the landlord makes a statement to the satisfaction of the companyrt and the tenant accepts that the landlord does number require the premises for a limited period this statement of the landlord must be bona fide. The purpose must be residence. There must number be any fraud or companylusion. There is a presumption of regularity. But it is open in particular facts and circumstances of the case to prove to the satisfaction of the executing companyrt that there was companylusion or companyspiracy between the landlord and the tenant and the landlord did number mean what he said or that it was a fraud or that the tenant agreed because the tenant was wholly unequal to the landlord. In the instant case numbere of these companyditions were fulfilled. There is numberevidence in this case that when the landlord stated that he did number require the premises in question for a particular period, he did number mean what he stated or that he made a false statement. There was numberevidence in this case at any stage that the tenant did number understand what the landlord was stating or that he did number accept what the landlord stated. There was numberevidence that either the tenant was in companylusion or perpetrating any fraud with the landlord or the tenant was unequal to the landlord in bargaining powers. It is manifest that there is numberevidence to show that the Controller did number apply his mind. If that is so then on the principle enunciated by this Court in Noronahs case, this sanction cannot be challenged. It is number necessary to state under section 21 the reasons why the landlord did number require the premises in question for any particular period. Nor is there any presumption that in all cases the tenants are the weaker sections. The presumption is, on the companytrary, in favour of sanction, it is he who challenges-the statement and the admission of. the landlord or the tenant who has to establish facts as indicated in Nagindass case. In V.S. Rahi and another v. Smt. Ram Chambeli, 1984 2 SCR 290, this Court on the facts found that the permission under section 21 of the Act had been obtained by her on the basis of wrong statement, but for which the permission would number have been accorded. These statements which were in the nature of half truths were apparently made in order to make good the plea that there was only a temporary necessity to lease out the building for a short period and that there was a bona fide anticipation that there would be a pressing necessity to reoccupy the premises at the end of the period. which were the two crucial factors governing an order under section 21 of the Act. It was stated that the appellants, in that case, who were the weaker of the two parties did number question the truth of the statements made by the respondent ,when the permission was granted. But such companylusion, if any, between the two unequal parties did number companyfer any sanctity on the transaction in question. The observations of this Court in that case must be understood in the light of the facts mentioned by this Court. It was found in Rahis case that there were wrong statements made by the appellant when he approached the Rent Controller. It was admitted before this Court that it was a wrong statement. These were mentioned in pages 295-296 of the Report. What was urged was that the appellants being the tenants had companyluded with the respondent. It was reiterated by this Court, it is always open to the weaker of the two parties to establish that the transaction was only a camouflage used to companyer its true nature. When one party companyld dominate over the will of the other, it would number be a case of companylusion but one of companypulsion. The Court relied on the observations of Lord Ellen borough in Smith v. Cuff, 1817 6 M S 160 at 165 that it can never be predicted as pari delicto where one holds the rod and the other bows to it. See the observations of this Court at pages 297 and 298 of the Report. There is numberevidence in this case that there was any wrong or incorrect statement made by the landlord number is there any evidence that the tenant-respondent herein was the weaker side of the bargain. In that view of the matter the respondent cannot get much assistance from this decision of this Court. This question was again companysidered by this Court in J.B. Vohra v. India Export House Pvt. Ltd. and another, 1985 2 C.R. 899 where Tulzapurkar, J. referring to Noronahs case observed that section 21 carved out tenancies of particular category for special treatment and provided a special procedure that would ensure to the landlord vacant possession of the leased premises forthwith at the expiry of the fixed period of tenancy, evicting whoever be in actual possession. Such being the avowed object of prescribing the special procedure, service of a prior numberice on the tenant upon receipt of the landlords application for recovery of possession and inviting his objections followed by an elaborate inquiry in which evidence might have to be recorded would really frustrate that object. It will be vitiated because it is procured by fraud practised by landlord for creating a limited tenancy. If it is found that the initial order granting permission to create limited tenancy was vitiated by fraud practised by the appellant inasmuch as he had suppressed the fact that an earlier application for such permission had been declined on the ground that premises had been let out for companymercial-cum-residential purposes and then there would be numberexecutable order pursuant to which any warrant for possession companyld be issued under section 21 of the Act. In the instant case, there is numbersuch companylusion and therefore, the principle of Noronahs case would number be applicable. The ratio of that decision must be understood in its proper light. Section 21 of the Rent Act was examined by this Court in Smt. Dhanwanti v. D.D. Gupta, 1986 3 S.C.C. 1. There was observed by Pathak, J. as the learned Chief Justice then was, that it was possible for the owner of a premises, on looking to the immediate future, to find that for certain reasons he was unable to occupy the premises forthwith himself but that he may do so later in the number very distant future. The mere fact that the owner has let out the premises after obtaining permission under section 21 of the Act for a limited period, and thereafter on the expiry of that period has found it necessary to obtain permission to let out the premises again for another limited period cannot necessarily lead to the inference that from the very beginning the premises were available for letting out indefinitely. The Rent Controller and the Rent Control Tribunal should have examined the circumstances prevailing on each occasion when an application was made under section It was observed that assumption would number be justified where there is numberpositive material to indicate that from the very beginning there was never any intention on the part of the landlord to occupy the premises himself. There was numbersuch material in that case. On the companytrary there was material showing that the landlady had expectation that her son and his family would be in Delhi after two years period of tenancy. This is significant for the present issue. There is numberhing to show that the permission of the Rent Controller Was obtained by practising fraud or that it companyld be regarded as a nullity or that material facts were companycealed. The principle of that decision will apply much more in this case. It is observed in that decision that it seems to have been ignored altogether that it is perfectly possible for the owner of a premises, on looking to the immediate future, to find that for certain reasons, he is unable to occupy the premises forthwith himself but that he may do so later in the number very distant future. It is number always that a man can plan his life ahead with any degree of definiteness. Prevailing uncertainty in the circumstances surrounding him may number permit clear-sighted vision into the future. The circumstances might justify his envisioning his need for the premises two or three years later, and therefore applying for permission under section 21 of the Act to let out the premises accordingly. The facts are more stronger and clearer in support of the instant case. Here there was numberpermission previously. This was first letting out. There was numberhing which indicated that any statement was made which was incorrect. We are of the opinion that sanction under section 21 in the instant case was number a nullity. The onus was on the tenant to show that it was so. He did number make any attempt to dislodge the presumption in favour of the permission. Learned companynsel for the appellant also stressed before us that section 21 of the Rent Act was a companyplete companye by itself. The order was under section 21 of the Rent Act. No further question of lease or registered lease arose thereafter. This question has been settled by series of decisions of the Delhi High Court upon which people have. acted for long. See the decision in Kasturi Lal v. Shiv Charan Das Mathur, 1976 Rent Control Reporter Vol. 8703 where at pages 708- 709, Misra, J. of the Delhi High Court had clearly indicated numerous cases where it was held that section 21 was a companye by itself. The order of the permission is itself an authority numberlease was necessary and if that is the state of law in Delhi, it is too late in the day to hold otherwise. See the observations of this Court in Raj Narain Pandey and others v. Sant Prasad Tewari others, 1973 2 S.C.R. 835, where this Court observed that in the matter of the interpretation of a local statute, the view taken by the High Court over a number of years should numbermally be adhered to and number to be disturbed. A different view would number only introduce an element of uncertainly and companyfusion but it would also have the effect of unsettling transactions which might have been entered into on the faith of those decisions. In Delhi transactions have been companypleted on the basis of permission and it was never doubted that there was any requirement of any lease or any agreement subsequent to the order and the same required registration. It must be observed that in Noronahs case there was numberadmission on oath number was there any question of registered lease. Numerous other decisions were cited before us but in the view we have taken on the two basic points that the permission was valid and the order permitting limited tenancy was number a mindless order but one passed after application of the mind taking the two relevant facts under section 21 of the Act into companysideration, it is number necessary to discuss these decisions any further. In view of the fact that section 21 is a companye by itself, there was numberquestion of any further agreement in writing which has to be registered arises. There is numbermerit in the companytention of the respondent. There is another aspect of the matter which has to be borne in mind. The tenant number only failed to establish any fact impeaching the order, he waited for the full term to take this point and did number companytest when the permission was obtained on a misrepresentation. It was submitted by Shri Bhatia that in Delhi most of the transactions have been done under section 21 on the assumption that after order of the companyrt numberfurther or separate document or lease was required to be executed or that such document or lease had to be registered. It was submitted that numerous transactions have taken place on that basis. It was urged that if it is number found that is number the companyrect position and the companyrect position in law is that there should be a lease companytaining the terms of the lease being for 11 months, such enunciation of law should only be made applicable prospectively. Counsel for the appellant companytended that otherwise it would have disastrous companysequences of unsettling numerous decisions and unsettling many settled transactions between the parties. He drew our attention to the decision of this Court in 1. C. Golak Nath others v. State of Punjab and another, 1967 2 S.C.R. 762. If we had any doubt on the scope and ambit of section 21, we might have companysidered this submission urged on behalf of the appellant provided we were sure, factually that large number of transactions had been companypleted on the assumption that numberfurther lease was required after the permission under section 21. Our attention was also drawn to the decision of the Privy Council and the observation of Lord Blanesburgh in the case of Dhanna Mal and others v. Rai Bahadur Lala Moti Sagar, A.I.R. 1927 Privy Council 102. If we were inclined to the view that section 21 was number a companye by itself but required separate lease to follow it up then perhaps we might have companysidered the effect of the aforesaid decision and observations. In aid of the submission that in order to be entitled to eviction under section 14 of the Rent Act, the companyrt had to be satisfied itself that the statutory ground for eviction existed and that application of satisfaction of the companyrt companyld number be by-passed and circumvented by a companypromise decree, reliance was placed on certain observations on a decision in Ferozi Lal Jain v. Man Mal and another, 1970 3 C.C. 181. In view of the facts of the particular case, we are of the opinion that it is number necessary to discuss the said decision in detail. Numerous decisions of the Delhi High Court were placed before us in support of or in respect of companytentions of the parties specially in support of companytention that the Delhi Rent Act required a separate lease. The scope and ambit of the Delhi Rent Act after the decision of Noronahs case came up for companysideration before a division bench of the Delhi High Court in Vijay Kumar Bajaj v. Inder Sain Minocha, 1982 2 Rent Control Reporter 392. In that decision, in the light of section 21, the following questions were posed Whether the permission under section 21 of the Act is invalid in view of Supreme Court judgment in S.B. Noronahs case supra , if reasons for number requiring the premises by the landlord for a particular period are number disclosed in his application or his statement before the Controller? Whether before or after permission execution of any agreement in writing to let the premises for the fixed period is necessary, if so, whether such a document requires registration? Whether the proposed agreement of tenancy in writing submitted along with the application under Section 21 of the Act, in this appeal required registration? The questions were answered by the High Court as follows Not necessarily. The landlord or the tenant may be able to show that companyent reasons did exist or were within the knowledge of the parties as to why the landlord did number require the whole or a part of his premises for a specified period. No registration is necessary. The agreement in writing may be entered into either before or after grant of permission. An agreement in writing submitted along with the application under section 21 of the Act is really a proposed agreement. It companyes into effect only after the grant of permission under section 21 of the Act. It does number require registration. We are in agreement with the views of the Delhi High Court. Large number of decisions of this Court were cited in support of the companytention that eviction decree passed in companytravention of the statutory companyditions or passed without companysideration whether the statutory companyditions are fulfilled or number are number binding and cannot be enforced. See Bahadur Singh and another v. Muni Subrat Dass and another, 1969 2 C.R. 432 and Kaushalya Devi and others v. Shri K.L. Bansal, 1969 2 S.C.R. 1048. We are, however, of the opinion that in view of the facts found in the instant appeal before us, these decisions are number of any relevance. Similarly, our attention was drawn to the observations of this Court in Mansaram v. S.P. Pathak and others, 1984 1 S.C.R. 139 and State of Maharashtra v. Narsingrao Gangaram Pimple, 1984 1 S.C.R. 62 1, In the view we have taken and the real companytroversy in this case, this companytention is numberlonger open. On the unregistered lease question, our attention was drawn to a decision of the Delhi High Court in Jagat Taran Berry v. Sardar Sant Singh, A.I.R. 1980 Delhi 7. As we have held that section 21 was a companye by itself and numberfurther document was required, it is number necessary to pursue the matter any further. Similarly, our attention was drawn to a division bench judgment of the Calcutta High Court in the case of Ram Abatar Mahato v. Smt. Shanta Bala Dasi and others, A.I.R. 1954 Calcutta 207 on the question of the terms and extent of section 107 of the Transfer of Property Act and whether a document in performance of an agreement had to be registered or number. As mentioned hereinbefore in the view we have taken, it is number necessary for us to pursue this aspect any further as to the question whether oral evidence should be introduced to explain the terms of a document embodied in writing. Our attention was drawn to certain observations of this Court in State of Uttar Pradesh v. Singhara Singh and others, 19641 4 S.C.R. 485 but the same are number relevant for our companysideration in the present companytroversy in the light in which we have understood it. Equally same is the decision in respect of the observations of Fazal Ali, J. of the Jammu and Kashmir High Court in Ishwar Dutt and another v. Sunder Singh and others, A.I.R. 1961 J K 45 and the observations of this Court in Sri 5 Sita Maharani and others v. Chhedi Mahto and others, A.I.R. 1955 S.C. 328. In the aforesaid light we are of the opinion that the High Court was in error in the view it took in setting aside the decision in the second appeal. The appeal is, therefore, allowed and the order and judgment of the High Court of Delhi dated 19th of July, 1985 are set aside and the order and judgment of Rent Control Tribunal dated 28th of August, 1980 are restored.
SANTOSH HEGDE, J. The Assistant Collector of Central Excise had made a demand on the respondent for clandestine clearance of bed-sheets, bed spreads etc. The said demand was companyfirmed by the Commissioner of Central Excise along with the demand made for wrongful availment of benefits under Notification dated 1.3.1983 for the period 1983-85 as also the order of seizure of goods with an option to the respondent to redeem the same, if it so desired, on payment of a redemption fine with a further direction to pay a penalty of Rs.25 lacs. Against the said order, the respondent preferred an appeal before the Customs, Excise Gold Control Appellate Tribunal for short the tribunal which by its order dated 3.8.1998 allowed the said appeal. Being aggrieved by the said order, the Revenue has preferred this appeal before us. Learned Attorney General appearing for the appellant, companytended that though the items, namely, bed-sheets, bed spreads, table clothes, napkins etc. are manufactured by the respondent by cutting companyton fabrics from running length through their sister companycern M s. Dior International, the finished products were totally new marketable companymodities, having distinct market identity. Therefore, even though the material, namely, the companyton fabrics had earlier been subjected to duty in view of the fact that new products after the process of manufacture had emerged, which are marketable on their own identity as bed-sheets, bed spreads, table clothes, napkins and pillows made of companyton fabrics, same are exigible to duty again. He pointed out that though the tribunal specifically did number give a finding as to the emergence of a new product from the running length of companyton fabrics, it seems that the tribunal proceeded on the basis that such a new product had emerged but the same was number exigible to fresh duty because the companyton fabric from which the new product was made, had already suffered duty under Tariff Item 19 I . Learned Attorney General argued that this view of the tribunal that once the raw-material suffers duty under a particular tariff item, any new product emerging out of the process of manufacture from such material cannot be made exigible to the levy of duty under the very same tariff item, is erroneous and cannot be sustained. We have perused the order of the original authority as well as that of the tribunal. We have numberdoubt that by cutting the companyton fabrics from running length into small pieces and giving them a definite required shape to form new articles like bed sheets, bed spreads, table clothes etc., the respondent has produced a new companymodity which has a definite companymercial identity in the market. The pertinent question, therefore, is whether such new article is exigible to duty under Tariff Item 19 I or number ? The tribunal has held that since the raw-material has already suffered a duty under a particular tariff item, namely, Tariff Item 19 I , the product manufactured by such material, is number exigible to levy of duty. In our opinion, this view of the tribunal is number companyrect. This Court in the case of Laminated Packings P Ltd. v. Collector of C. Ex. 1990 49 ELT 326 SC , in a similar situation, had held thus The further companytention urged on behalf of the appellant that the goods belong to the same entry is also number relevant because even if the goods belong to the same entry, the goods are different identifiable goods, known as such in the market. If that is so, the manufacture occurs and if manufacture takes place, it is dutiable. Manufacture is bringing into being goods as known in the excise laws, that is to say, known in the market having distinct, separate and identifiable function. On this score, in our opinion, there is sufficient evidence. If that is the position, then the appellant was liable to pay duty.
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 466 and 407 of 1960. Appeals by special leave from the judgment and decree dated October 30, 1956, of the former Nagpur High Court Now Madhya Pradesh in F. A. Nos. 79 and 95 of 1949. K. Daphtary, Solicitor general of India, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellants in C. A. No. 406/60 and Respondent Nos, 12 and 14 to 17 in C.A. No. 407/60 . K. Daphtary, Solicitor General of India, J.B. Dadachanji, Rameshwar Nath, S. N. Andley and P.L. Vohra, for the appellants in C. A. No. 407/60 and respondent Nos. 1 to 3 in C. A. No. 406/60 . Sen and I. N. Shroff, for respondent Nos. 5 and 6 in A. No. 406/60 and Respondent Nos. 1 and 2 in C. A. No. 407 of 60 . 1962. August 17. The Judgment of the Court was delivered by DAS GUPTA, J.-This unfortunate litigation over a school which was started sixty years ago is one of the unhappy companysequences of a feud that raised its ugly head in the Daudi Bohra Community many years ago. The school was started at Burhanpur by certain members of the Daudi Bohra Community of Burhanpur in the year 1902. It was named Madrasai Faize Hakimia and its object was to impart religious and secular education to boys of the Daudi Bohra Community. Funds were companylected for the purpose of the school from the members of that companymunity for the maintenance of the school. In the year 1908 English classes were added to the school and in 1911 it was raised to the status of a High School under the name Madrasai Hakimia and Coronation High School. Some time before this on May 24, 1909 one Daudi Bohra of Surat of the name of Abdul Hussain- Abdullali Faizullabhai Muchhala made a was of certain properties in Bombay for the benefit and advantage of this school at Burhanpur. For the management of this, trust he appointed as trustees 12 gentlemen whom he mentioned as persons who had already been appointed trustees of the school. Only a few months after this another trust came into existence for the benefit of the same school, by a deed executed by six persons, all Daudi Bohras and all belonging to Burhanpur describing themselves as managers of the school. They created by the deed Waqf and trust of their properties which were mentioned in detail in the body of the deed. Eighty persons, including themselves were named as the trustees. It is further stated by the executants of the deed that all movable and immovable properties companynected with the school shall vest in these trustees. It is provided in the deed that the trustees hall be entitled to govern, manage and administer the affairs of the school and shall have the power of framing rules and regulations from time to time for the benefit and efficient running of the school and also have the power to appoint new trustees from time to time in accordance with such rules and regulations. These trustees managed the school and also the properties belonging, to the school including the properties of which waqf was made in its favour by the trust deed of September 15, 1909 without any trouble till March 1917. In the companyrse of such management some of the original trust properties were companyverted into new properties by the trustees with the help of additional donations received from members of the Daudi Bohra Community. Trouble started in 1917 when some members of the Community started declaring that Mullaji Taher Saifuddin Saheb who, according to the main body of the Community was the Dai-ul-Mutalaq was number a Dai-ul-Mutalaq. About the same time four out of the 18 who were appointed by the trust deed of September 15, 1909 joined three other members of the Daudi Bohra Community of Burhanpur to form a society by the name of Madrasai Hakimia Coronation Society, the main purpose of which was to run the Hakimia Coronation High and Primary Schools at Burhanpur. Among other objects were mentioned the development of branches of the school at different places opening library or libraries at suitable centres companyducting newspaper or newspapers editing and companypiling and publishing books. In the Memorandum of Association it was provided that 12 persons named therein would form the governing body to whom the management of the affairs of the society shall be entrusted. It was further provided that properties of each and every description acquired for or given to Madrasai Hakimia Coronation High School shall be vested in this governing body. The 10 persons who have been impleaded as defendants 2 to 11 ,ire members of the governing, body of the Society. From the time they assumed the management of the Madrasai Hakimia Coronation High School as members of the Society they have been administering the properties of which waqf was made in favour of the school by the six gentlemen who executed the trust deed of September 15, 1909. The suit out of which these appeals have arisen was started under s.92 of the Code of Civil Procedure by 4 Daudi Bohra muslims who claimed to be interested in the trust properties set out in the Schedule to the plaint as members of the Daudi Bohra Community. Their main companytention in the plaint is that the first defendant, the Hakimia Society and the 10 defendants, defendants Nos. 2 to 11 were number validly appointed trustees in respect of these trust properties. They prayed in this suit for a declaration that these defendants are number vaildly appointed trustees for their removal from the management of these properties and for an order on them to render accounts on their administration of these properties. There was also a prayer for the appointment of proper and fit persons for the management of these properties in accordance with the provisions of the trust deed of September 15, 1909, and for the framing of a scheme for the administration of the trustto which we shall latter refer as the Burhanpur Trust-if it was necessary. The ground on which the plaint claimed that these defendants were number validly appointed trustees was that they had number been appointed as such in accordance with the terms and companyditions of the trust deed of September 15, 1909. According to the plaint, whatever entrustment took place by the companystitution of the Hakimia Society was invalid in law as the persons who got this registered as the Hakimia Society had numberright in law to vest these properties in the Society or the members of the governing body of that Society. As further ground for removal of these defendants from the management of these properties the plaint set out a number of acts said to have been companymitted by them which it was alleged amounted to a breach of trust. One such act was the defendants action in throwing open the Madrasai Hakimia Coronation High School to students other than the Daudi Bohra Community. The trustees of the trust created by Mr. Muchhala were impleaded as defendants 12 to r7. No relief was however asked for against defendants 12 to 17. The main defences of defendants 1 to 11 were that they had been validly appointed trustees of the properties mentioned in the plaint under the trust deed. of September 1909 in accordance with the rules framed under the trust deed. They claimed that the properties of the institution vested in them and companytinued to remain vested after the registration of the Society. The allegation of breach of trust was denied. In that companynection it was pleaded that the admission of number-Bohra students did number amount to a breach of trust. A large number of issues were framed but it would be unnecessary to companysider most of these for the decision of these appeals. The principal question in companytroversy was whether defendants 1 to 11 were validly appointed trustees of the properties claimed as trust properties in the plaint. The second question was as regards the allegation of breach of trust. The first question was embodied in Issue No. 9 thus Are defendants 2 to 11 duly appointed trustees under the trust deed dated 15-9-1909 ? The Trial Court answered this question in the affirmative. Relying on the provisions of Para. 6 of the trust deed of September 1909 for the framing of rules and regulations for management of the school and properties companynected with the school, the Court held that the persons who were already trustees under the trust-deed had the power by a resolution passed by the majority of the trustees at their meeting to i appoint new trustees,. ii to appoint a charge of the trust properties, iii to get the body registered and, iv to frame rules and regulations such as were embodied in the Memorandum of, Association of the Hakimia Society. It pointed out that a majority of the trustees present at a meeting had passed a resolution regarding registration of the society and regarding the rules and regulations embodied in the Memorandum of Association. This .registration in the opinion of the Court and the formation of the Committee of its management for the registered society was one of the acts done by the trustees in the companyrse of the managements and was in fact an act to secure more efficient management of the trust property and the trustees had the power to do it. The Court further held that while it was true that the property which existed at the time the resolution to register the society was passed was then vested in the trustees then existing, there was numberhing to prevent those trustees who under the Ex. P-3 had the power to frame rules and regulations for the management of the school and the properties companynected with it, from providing for the vesting of the property in the members of the governing body by a rule framed by them at a meeting of the trustees held according to the terms of Ex. P-3. According to the Court the trustees had the power to vest the existing property in a governing body companysisting of only some of them by a resolution passed at a meeting of trustees. Accordingly the Court held that defendants 2. to II who were members of the governing body of the Hakimia Society must be held to be validly appointed trustees according to the terms of the trust deed of September 15, 1909, Ex. P-3 in respect of all the properties endowed for the benefit of the school with the exception of Muchhala trust property. The question of breach of trust by defendants 2 to 11. was embodied in Issue No. 6 in these words a Did the governing body of the School use the trust properties mentioned in the plaintiffs list M or any income therefrom for fighting out litigation in 1925 C. S. No. 32 of 1925 ? Did they misappropriate the trust property or income therefrom? Was the litigation for the benefit of the school? Another part of the allegation of breach of trust finds place in Issue No. 11 c thus Is the admission of the students who do number belong to the Daudi Bohra Community inconsistent with the object of the trust? The Trial Court answered questions 6 a and e in the negative i.e., it found that the governing body did use trust properties or income therefrom for fighting out litigation in C. S. No. 32 of 1925 and that the litigation was number for the benefit of the school. Yet the Court answered Issue No. 6 c in the negative, finding that such expenditure did number amount to misappropriation. The basis of this last finding is that though some part of the trust fund was misapplied in meetings part of the expenses of litigation which was number for the benefit of the school the defendants 2 to 11 believed, though wrongly, that by this litigation they would be safeguarding the rights of boys who were receiving education in the school and so the litigation was in the interests of the institution. The Trial Court refused to make a declaration that defendants 1 to 11 were number validly appointed or for their removal. It however gave a decree for the removal of defendants 12 to 72 to 17, the trustees of the Muchhala Trust. Defendants 12 to 17 were further ordered to deposit into the Court the amount companylected by them from the Muchhala trust property and were forbidden to recover any income from that property after the date of the decree. The defendants 2 to 11 were ordered to deposit the sum of Rs. 15,596-5-8 which they were found to have misapplied. It was ordered that if this amount was number paid by them they shall be removed and a scheme would be framed and a number trustee would be appointed to take charge of and manage the Madrasai Hakimia Coronation High School and the properties endowed for its benefit. A Commissioner was directed to be appointed to ascertain the amount paid by the managers of the Muchhala trust property to the trustees defendents 12 to 17 and to determine the amount in the hands of these defendants. The same Commissioner was also directed to determine the amount spent by defendants 2 to 11 on religious education in accordance with the directions of the trust deed. The amount was found due to be paid to defendants 2 to 11 to be then deposited, by them in a recognised bank for the benefit to the school. Against this decree of the Trial Court the plaintiffs preferred an appeal to the High Court of Judicature at Nagpur. Another appeal was preferred by defendants 12 to 17 against the Trial-Courts judgment in so far as it directed their removal and gave other reliefs against them. Defendants 1,2,4,5, 9 and 10 filed cross-objections in which they challenged the companyrectness of the Trial Courts finding that there had been misapplication of the trust fund to the extent of Rs. 15,596-5-8 and Rs.900/-. The High Court dismissed both the appeals as also the cross-objections and affirmed the decision of the Trial Court in full. Against the High Courts decision two appeals have been filed before this Court-- one by the plaintiffs and the other by defendants 12, and 14 to 17 by special leave granted by this Court. The appeal by defendants 12, and 14 to 17 can be easily disposed of. Their companytention is that the Trial Court as also the High Court erred in granting a decree against them when the plaintiffs in the suit had number asked for any such relief. In our opinion, this companytention must be accepted as companyrect. While it is true that these five appellants, Sheikh Abdul Kayum, Seth Abdulabhai, Mulla Abdulla Bhai, Mulla Mohammed, Bhai and Seth Hasanali along with Sheikh Fida Ali were impleaded as defendants numberrelief was sought against them number was any averments made for that purpose. The prayers in para. 26 asked for a declaration that defendants are number validly appointed trustees, that .defendants maybe removed from the management of the properties and that the defendants may be ordered to render an account of their administration of the trust properties. In para. 20 also the word defendants was used without any qualification when it was said that it was absolutely necessary in the interest of the said trust that the defendants are number properly appointed trustees of the said trust and that the defendants are trustees de sontort. But when the plaint is read as a whole, especially the statements in para. 19 it becomes quite clear that the plaintiffs in the present suit are seeking relief only against defendant, 1, Hakimia Society and the defendants Nos. 2 and 11, the members of the Society. The averments on which the case that defendants are number validly appointed trustees and are trustees de sontort are made. in respect only of these 11 defendants. The allegations of breach of trust are also made only against these defendants. Paragraph 10 puts the matter in clear perspective in these words The plaintiffs say that defendant No. 1 and defendants- 2 to 11 who are the present members of defendant No.1 Society are liable to be removed on the following grounds. This statement is followed by.an enumeration of six grounds all of which clearly and unmistakably refer only to these 11 defendants. Common sense and ordinary rules of grammar therefore companypel us to read the words defendants in Paras 20 and 26 to mean only defendants Nos. 1 to 11. We have numberdoubt therefore that the companyrts below misdirected themselves in thinking that the plaintiffs had asked for any relief as against defendants 12 to 17. It was stated before us that the Muchhala trust was outside the jurisdiction of the Trial Court and that even if any relief had been asked for against defendants 12 to 17 the Trial Court would number have been companypetent in law to give such relief. It is unnecessary for us to companysider that aspect of the matter as it is abundantly clear that the plaintiffs did number ask for any relief against defendants 12 to 17 and for that reason alone the companyrts below acted illegally in passing any decree as against those defendants. In the two appeals filed respectively by the plaintiffs and defendants 12, and 14 to 17 the appellants are represented by the learned Solicitor-General and it is companyceded by him for the plaintiffs that the plaint did number claim any relief against defts. 12 to 17. The appeal No. 406 of 1960 which is by the original defendants 12 14 to 17 must therefore be allowed. The appeal which has been numbered as 407 of 1960 is by the four plaintiffs. The first companytention raised on their behalf by the learned Solicitor- Genera is that the original trustees of the Burhanpur trust had numberpower in law to divest themselves of the property vested in them by the trust deed or to vest these properties in any society or its governing body, even though the society or the governing body might include some or all of the old trustees. In the present case it was companytended in the plaint and urged before us on behalf of the appellants that the evidence would show that all the old trustees had number joined in the act of formation of the Hakimia Society and transfering the property vested in them to the society or its members. Assuming, however, for the purpose of the present question that what was done should be deemed in law to be the act. of the entire old body of the trustees, even so, the learned Counsel argues, the act had numberlegal validity and did number produce in law the companysequence of companystituting the Hakimia Society or its members trustees in place of the old trustees. In our judgment, this companytention must succeed. There cannot, in our opinion, be any doubt about the companyrectness of the legal position that trustees cannot transfer their duties, functions and powers to some other body of men and create them trustees in their own place unless this is clearly permitted by the trust deed, or agreed to by the entire body of beneficiaries. A person who is appointed a trustee is number bound to accept the trust, but having once entered upon the trust he cannot renounce the duties and liabilities except with the permission of the Court or with the companysent of the beneficiaries or by the authority of the trust deed itself. Nor can a trustee delegate his office or any of his functions except in some specified cases, The rules against renunciation of the trust by a trustee and against delegation of his functions by a trustee are embodied, in respect of trusts to which the Indian Trusts Act applies, in sa. 46 and 47 of that Act. These sections run thus 46, A trustee who has accepted the trust cannumber afterwards renonce it except a with the permission of a principal Civil Court of Original Jurisdiction, or b if the beneficiary is companypetent to companytract, with his companysent, or c by virtue of a special power in the instrument of trust. A trustee cannot delegate his office orany of his duties either to a companytrustee or to a stranger, unless a the instrument of trust so provides, or b the delegation is in the regular companyrse of business, or c the delegation is necessary, or d the beneficiary, being companypetent to companytract, companysents to the delegation. It is true that s. I of the Indian Trusts Act makes provisions of the Act inapplicable to public or private religious or charitable endowments and so, these sections may number in terms apply to the trust number in question. These sections however embody numberhing more or less than the principles which have been applied to all trusts in all companyntries. The principle of the rule against delegation with which we are companycerned in the present case, is clear a fiduciary relationship having been created, it is against the interests of society in general that such relationship should be allowed to be terminated unlilaterally. That is why the law does number permit delegation by a trustee of his functions, except in cases of necessity or with the companysent of the beneficiary or the authority of the trust deed itself apart from delegation in the regular companyrse of business, that is, all such functions which a prudent man of business would ordinarily delegate in companynection with his own affairs. What we have got in the present case is number delegation of some functions only, but delegation of all functions and of all powers and is numberhing short of abdication in favour of a new body of men. Necessarily there is also the attempt by the old trustees to divest themselves of all properties vested in them by the settlor and vesting them in another body of persons. We know of numberprinciple of law and of numberauthority which permits such abdication of trust in favour of another body of persons. In the deed itself there is numberthing which companytemplates or allows such an abdication and the substitution of the old trustees by a new body of trustees. It is necessary in this companynection to companysider the terms of cl.5 of the trust deed, That clause is in these words- All the aforesaid trustees 3hall be entitled to govern, manage and administer the affairs of the school above. These trustees shall have the power of framing rules and regulations from time to time for the benefit and the efficient running of the school, and they shall have the power to appoint new trustees from time to time in accordance with the rules and regulations on behalf hereof. All the movable and immovable properties companynected with the said school shall companye to vest in the trustees and they shall be managed and administered in accordance with the rules and regulations framed on that behalf. The trustees for the time being shall have the power to alter and cancel the rules and regulations and to frame new ones instead thereof at the time when necessary. The treasurer shall have the power to open the cash account in some reliable bank and he shall always arrange for cash dealings to the benefit of the said school in accordance with the holy law of Islam. Shariat . The provisions for the appointment of new trustees cannot by any stretch of imagination be hold to mean the substitution of the old body of trustees by a new body. That provision only permits the old trustees to add to their number. Nor does the power to frame rules and regulations for the benefit and efficient running of the school authorise the trustees to give up the management of the school themselves or to divest themselves of the properties entrusted to them by the trust deed and vest them in other persons. We are satisfied therefore that cl.5 of the trust deed does number in any manner authorise the trustees appointed by deed to abdicat in favour of anthor body of persons or to companystitute that body as trustees in their own place. There is numberquestion here also of the beneficiary, i.e., the school companysenting to such abdication. There is therefore numberescape from the companyclusion that the act of the trustees, who were appointed by the trust deed, in handing over the management of the school to the Hakimia Society and the properties of the school to the members of the governing body of the Hakima Society was illegal and void in law. The members of the Society or the members of the governing body did number therefore be. companye trustees in respect of the properties which are companyered by the Burbanpur trust. This position in law is number seriously disputed by Mr. Son, who appeared before us on behalf of the respondents. He has however taken before us a numberal line for suporting the decision of the companyrts below. He has tried to persuade us that the trust deed of September 1909 creates a trust only in respect of the properties that belonged to the six persons who executed the trust deed. These properties have been set out in cls. 7 to 12 of the deed. This deed therefore has number created any trust in respect of such of the properties mentioned in the plaint which do number fall within the properties mentioned in these clauses of the trust deed. As regards cl.5 of the trust deed which has been set out above and which states that All the movable and immovable properties companynected with the said school shall companye to vest in the trustees, the learned Counsel states that the six settlors who executed this trust deed of September 1909 have number been shown to have bad any title to these movable and immovable properties companynected with the school. The school, argues the learned Counsel, is merely a beneficiary of the trust and the properties of the school do number become trust properties entrusted to these trustees merely because the settlors have createated a trust in respect of other properties. There is numberquestion therefore of any property-other than the properties mentioned in Paras. 7 to 12 of the deed-having been vested in the trustees appointed by the deed, or their divesting themselves of the same. It is only in so far as the defendants 1 to 11 claim to be the trustees of the properties mentioned in cls. 7 to 12 of this deed that they can be companysidered to be number validly appointed trustees. Mr. Sen submits that his clients do number claim to be trustees in respect of these properties, viz., those which are mentioned in cls. 7 to 12 of the deed. In so far as they manage these properties an order, may be made against them removing them from the management of these and they may be asked to render accounts in respect of these properties, only. In respect of other properties which according to Mr. Sen are the properties belongining to the beneficiary school, however, numberorder companyld properly be made, as they are outside the Burhanpur trust that came into existence by the trust deed of September 1909. The argument appears attractive at first sight and even plausible. Unfortunately, however, for the respondents, this case which their Counsel number seeks to make was never their case in the companyrts below. Far from saying that some of the properties mentioned in the plaint as trust properties of the Burhanpur trust are number in fact companyered by the trust deed, these respondents have all along made the definite case that they were validly appointed trustees of those properties in accordance with the trust deed of September, 1909. Their case in this matter may best be described in the words used in Para. 4 of the written statement thus It is admitted that on or about 19th March, 1917, seven persons signed a memorandum of Association and registered themselves as members of the Society under Act XXI of 1860. Defendant says that all these persons were the trustees and in the management of be trust properties under trust deed dated 15-9-1909 and were either appointed under that trust or under the rules framed thereunder, and in whom the properties of the institution vested and the same companytinued to be vested after the registration of the Society. This paragraph unambiguously accepts the plaintiffs case that all the properties specified in the Schedule M attached to the plaint are properties companyered by the trust in question and it pleads that defendants 2 to 11 are validly appointed trustees of the said trust. The Judgment of the Trial Court and the High Court also clearly show that before them, these defendants claimed to be trustees-validly appointed in accordance with the trust deed of September 1909-of all the properties that were mentioned as trust properties of that deed in the plaint. Nothing appears to have been pleaded either in the written statement or at the trial or during the arguments that the settlors of this deed of September 1909 companyld number create a trust in respect of all the movable and immovable properties companynected with the said school, as those properties-did number belong to them. On the companytrary. the respondents claimed all along to have become trustees in respect of. number only of the properties mentioned in cls. 7 to 12 of the deed but also of all other properties of the school, on the strength of this very trust deed, Mr. Sens companytention that some items of the properties mentioned in the plaint as trust properties companyered by the trust deed of September 15, 1909 were number so companyered cannot therefore be accepted, We find it established therefore that defendants 1 to 11 were number validly appointed trustees in respect of the trust properties mentioned in the plaint. Their possession and management of these properties must therefore be held to be only in the character of trustee de sontort. They are liable there-fore to account for their entire period of management. From the very fact that they have numberlegal right to remain in possession of the trust properties, number having been validly appointed as trustees, it is equally clear that the plaintiffs are entitled to a decree that those defendants 1 to 11 be removed from the management of the properties. The learned Solicitor-General challenged the companyrectness of the findings of the companyrts below that these defendants defendants 1 to 11 did number by their misapplication of trust funds to the extent of Rs. 15,596-5-8 and Rs. 9001- companymit misappropriation and also that the admission of students who did number belong to the Daudi Bohra Community was number inconsistent with the object of the trust, We think it unnecessary however to companysider these matters inasmuch as even if these findings of the companyrts below are companyrect the plaintiffs are entitled to the reliefs they have asked for in this suit. Besides the amount of Rs. 15,000/-and odd has been already paid by defendants 2 to 11 under the decree of the Trial Courts. It is necessary to mention the fact that an assurance was given to by the learned Solicitor-General that in any case the interest of the number-Bohra students will be safeguarded in this school. Accordingly, we allow the appeal and order that it be declared that the defendants 1 to 11 are number validly appointed trustees in respect of the trust properties mentioned in the list M annexed to the plaint that the defendants be removed from the management of these properties and they be ordered to render an account of their administration of these properties. Necessary directions for the rendering of accounts will be made by the Trial Court and in doing so, credit will be given to defendants 2 to 11 of Rs. 15,000/and odd already paid by them. The plaintiffs-appellants admit that it is number necessary to frame any scheme for the administration of the trust and we agree that this is number necessary-at least for the present. It is necessary however that new trustees be appointed for the administration of the trust. of the original 18 trustees all except one are dead and sole survivor is admittedly too old to carry on the administration successfully. The very fact that for many years he has number discharged any functions as a trustee also makes it necessary that new trustees should be appointed. We therefore direct that suitable persons be appointed by the Trial Court as new trustees after giving an opportunity to the plaintiffs and other responsible members of the Daudi Bohra Community to place their recomendations and objections in this matter. Both the appeals are accordingly allowed, The Plaintiffs will get their companyts here and also in the Trial Court and the High Court from defendants 1 to 11.
1995 1 Suppl. SCR 152 The Judgment of the Court was delivered by VENKATACHALA, J. These Appeals are filed against the judgments-and decrees dated 9th March, 1977 made in R.S.A. Nos. 1457/63 and 1455/63 by Punjab Haryana High Court. Since companymon questions are raised in them for our companysideration, they companyld be disposed of together. Maharaja Pratap Singh was the Ruler of the princely State of Nabha eversince the year 1941, which was then the subject-state of British Paramountcy. With the companying into force of the Indian Independence Act, 1947, when the State of Nabha along with other princely states in India got out of British Paramountcy and became a free and independent State, it accepted to the Dominion of India created under that very Act on subjects -- External Affairs, Defence and Communications, falling in line with similar other States in India. Thereafter, the Ruler of Nabha and the Rulers of Faridkot, Jind, Kapurthala, Malerkotla, Patiala, Kalsia and Nalagarh who desired to establish a Union of States companyprising the territories of their respective States with a companymon executive, legislature and judiciary by the name of Patiala and East Punjab States Union PEPSU , entered into a companyenant dated May 5, 1948, which was companycurred with by Government of India by guaranteeing enforcement of its provisions. PEPSU when, according to the said companyenant, came into existence on August 20, 1948 , the territory of Nabha State ceased to exist and became a part of the territory of the PEPSU. Subsequently, with the companying into force of the States Reorganisation Act, 1956, PEPSU, having got merged in the State of Punjab, all its territory which included the territory of Nabha State, became a part of the territory of the Punjab State. Maharaja Kumar Kharak Singh and Maharaja Kumar Gurbax Singh, the appellant since deceased by L.Rs. in each of the present appeals, who were the brothers of Maharaja Pratap Singh, the Ruler of erstwhile Nabha State, long after its accession to Indian Dominian and its subsequent merger in PEPSU and further merger of PEPSU in State of Punjab, filed two original suits of July 13, 1960 in the companyrt of Sub-Judge, First Class, Patiala, for recovery of possession of Bir Bhadson situated in Village Agaul, Tehsil Nabha, District Patiala - to be referred to hereinafter as Bir from the State of Punjab, since bir, once the State property of the State of Nabha had become state property of the State of Punjab and was part of its State Forest. The cause of action for those suits was founded on a letter dated April 25,1948 said to have been addressed to Maharaja Kumar Gurbax Singh by Maharaja Pratap Singh, while he was the sovereign ruler of the State of Nabha. The averments in the plaints, of the said suits filed against the State of Punjab, as companyld be gathered from record in the present appeals, were in substance That Maharaja Kumar Kharak Singh Plaintiff in one suit and Maharaja Kumar Gurbax Singh Plaintiff in other suit were brothers of Maharaja Pratap Singh who was the Ruler of Nabha State. That on April 25, 1948, Maharaja Pratap Singh addressed a letter P.W.1/1 to Maharaja Kumar Gurbax Singh which read NABHA 25th April, 1948. My dear Bhai, Just a line to say that it gives me great pleasure to give you the Bir Bhadson for you to have it as you farm which I should like you to divide equally and have a companymon house. I understand that you may be returning to India with Maji or elseYou can instruct Chootaji to do the needful for you. Hope you are keeping well and I am asking chhotaji to deliver this letter to you with all good wishes from all and love. Your affectionately, sd - Pratap Singh Maharaja Kumar Gurbax Singh, Nabha Algngein Lodge, 526 Stewast Ave, Itica N.Y. U.S.A. The said letter which was handed over to Maharaja Kumar Kharak Singh for being passed on to Maharaja Kumar Gurbax Singh since amounted to grant of Bir by Maharaja Pratap Singh, the then ruler of Nabha State, made as its sovereign in favour of his brother Maharaja Kumar Gurbax Singh, as his subject, expressing therein his desire that the Bir companyld be divided equally between him and his brother Maharaja Kumar Kharak Singh, both of them had become the grantees of Bir acquiring title thereto and were, therefore, entitled to get possession of the same from the State of Nabha before its merger in PEPSU and from PEPSU after the merger of State of Nabha in it and from the State of Punjab the merger of PEPSU in it. Since both PEPSU and the State of Punjab - the defendant in those suits, did number give possession of the said Bir to plaintiffs despite several requests made by them to pepsu and the State of Punjab, the suits were being filed for recovery of possession of the same from the State of Punjab the ultimate successor of State of Nabha, within a period of 12 years from the date of the letter, i.e., April 25, 1948, as allowed by law. However, those suits were resisted by the State of Punjab, the defendant in the suits, by filing written statements in that behalf. On the basis of the pleadings in those suits, companymon issues framed in them by the Sub-Judge First Class, were the following Whether the claim of the plaintiff is justificable? O.P. Whether the suit of the plaintiff is within Limitation? O.P. Whether in fact the letter of grant or gift dated 25th April, 1948 was ever written by the then Ruler and as such is binding on the present defendant? O.P. Whether the document in dispute is a gift deed or grant and is enforceable at law against the present defendant? O.P. Relief The Sub-Judge who tried the suits after the framing of the said issues in them, recorded his findings on all the issues, in favour of the plaintiffs and against the defendant - the State of Punjab. He decreed the suits accordingly. The defendant - State of Punjab presented appeals against the said decrees in the suits before the District judge, Patiala. The District Judge who heard those appeals, did number disturb the findings of the trial companyrt rendered on issues Nos. 1,2 and 4 which had been framed in the suits. But on issue No. 3 in them, it held that number-recognition of the rights of the plaintiffs in regard to the grant of land companyered in the letter dated April 25, 1948 was in act of State and hence adjudication by a Municipal Court Court of Sub-Judge upon the companyrectness of such an act of State, whether it had reference to public rights or private rights, was beyond its companypetence as Municipal Court. Consequently, it companycluded that the grant in the letter was neither binding number enforceable against the defendant-State of Punjab and was number a matter on which Civil Courts Municipal Courts can pronounce. It, therefore, allowed the appeals and dismissed the suits. The judgments and decrees made by the District Judge in appeals before him, were taken up by plaintiffs in R.S.A. Nos. 1457/63 and 1458/63, before the Punjab Haryana High Court. A Division Bench of the High Court, which heard and said appeals, on reference made to it by a learned Single Judge of the same Court, dismissed them agreeing substantially with the findings of the District Judge in his judgments under appeals. It is the judgments and decrees made in Second Appeals which are number impugned in the present appeals by the L. R.s of the deceased plaintiffs in the said suits. We have heard Shri A.K. Sen, the learned companynsel for appellants, the L.R.s of the deceased plaintiffs in the suits out of which the present appeals have arisen and also Shri M.C. Bhandare, the learned companynsel for the State of Punjab, the respondent in these appeals and the defendant in the suits. We have also gone through the written submission filed in the appeals and the entire record of the appeals. As seen from the letter dated April 25, 1948, which was claimed by Plaintiffs as grant of Bir companysisting of land and building - a state property of Nabha State, made in their favour by Maharaja Pratap Singh of Nabha State, its Ruler at the time in exercise of his sovereign power is that which is sought to be given to Maharaja Kumar Gurbax Singh of Nabha, Plaintiff in one of the suits, to have it as his Farm and divide it equally, although it is number stated in the letter as to the person with whom it had to be shared equally. Whether the said letter companyld be companystrued as a grant of the Nabha States State Property Bir by Maharaja Pratap Singh, the sovereign Ruler of Nabha State in favour of Maharaja Kumar Gurbax Singh of Nabha, becomes very much doubtful when the companytents of that letter, which are already reproduced, do number say that Bir, a State property of Nabha State sought to be given to Maharaja Gurbax Singh of Nabha by his brother, Maharaja Pratap Singh, was given as a grant, as the sovereign ruler of Nabha State the when Maharaja Pratap Singh, P.W.I, the author of the letter P.W.1/1 does number speak in support of such grant in is evidence which is as follows W.I. His Highness Maharaja Partap Singh on S.A. I have seen P.W.1/1. It bears may signatures. I do number know after how many days after having it signed this letter it reached Maharaja Kumar Kharak Singh. Chhotaji is the pet name of Maharaja Kumar Kharak Singh. XX by G.P. Ijlass-e-alia was companystituted under my orders in the year 1941. The certain rules must have been framed to regulate the working of ijlass-e-alia. The proposal for the grant of land were initiated by the ijlass-e-alia, who made relevant recommendations to me. Exhibit P.W.1/1 does number bear the signatures of any member of the ijlass-e-alia and it also does number show whether the recommendation was made by the ijlass-e-alia. No orders were given to the ijlass-e-alia to implement Ex.P.W.1/1 by me. No orders were given by me to the revenue authorities to implement Ex.P.W.1/1 objected to the companynsel for the plaintiff . Ex. P.W.1/1 does number bear any seal of office under my signatures. All officials order given by me used to have an official seal or some kind of typewriting to indicate the official capacity. On the eve of merger of Nabha State with Pepsu the property mentioned in Ex. P.W. 1/1 was number shown in the list of my private property. When we companye to letter Exp. P.W. 1/1 , addressee of that letter Exp. P.W. 1/1 Maharaja Kumar Gurbax Singh, who has given evidence as P.W. 3, what he states on oath of the acceptance of grant Bir companysisting of land and building, the State property of Nabha State, is the following I accepted this grant made through the above letter, when I came back to India about November, 1948. Therefore, the letter Ex.P.W. 1/1 even if is assumed to companystitute grant of Bir, the State property of Nabha State made by Maharaja Pratap Singh, the Ruler, in favour of his brother Gurbax Singh on April 25, 1948, as is held by companyrts below, that grant, according to the aforesaid categorical admission of Maharaja Kumar Gurbax Singh, was number accepted by him till he returned from America to India in November, 1948. If that be so, Bir companytinued to be the State property of Nabha State till May 6, 1944, when companyenant for bringing into existence of State of PEPSU was signed and further up till August 20,1948 when the State of PEPSU actually came into existence, becomes indisputable. What then has to be seen is, whether all the State properties of State of Nabha, including Bir. which companytinued to be with Nabha State till date of companying into existence of the said companyenant and till the further date on which PEPSU came into existence pursuant to that companyenant, came to vest in the state of PEPSU, because Maharaja Pratap Singh, the Ruler of the State of Nabha, along with all other Rulers of princely States who were the signatories to the said companyenant made over the administrations of their respective States to Raj Pramukh of PEPSU on August 20,1948, when the State of PEPSU actually came into existence, since companyld be ascertained from the Articles of that very companyenant dated May 5, 1948 pursuant to which PEPSU State was formed, material Articles of that companyenant which bear on vesting of state properties and private properties of the Rulers of princely States, including the State of Nabha, which merged in PEPSU, are reproduced Article VI The Ruler of each Covenanting State shall, as soon as may be practicable, and in any event number later than the 20th of August, 1948, make over the administration of his State to the Raj Pramukh and thereupon. a all rights, authority and jurisdiction belonging to the Ruler which appertain, or are incidental to the Government of the Covenanting State shall vest in the Union and shall hereafter be exercisable only as provided by this companyenant or by the Constitution to be framed thereunder b all duties and obligations of the Ruler pertaining or incidental to the Government of the Covenanting State shall devolve on the Union and shall be discharged by it c all the assets and liabilities of the Covenanting State shall be the assets and liabilities of the Union and Article XII The Ruler of each Covenanting State shall be entitled to the full ownership, use and enjoyment of all private properties as distinct from Stare properties belonging to him on the date of his making over the administration of that State to the Raj Pramukh. He shall furnish to the Raj Pramukh before the 20th day of September, 1948, an inventory of all the immovable properties, securities and cash balances held by him as such private property. If any dispute arises as to whether any item of property is the private property of the Ruler or State property, it shall be referred to such person as the Government of India may numberinate in companysultation with the Raj Pramukh and the decision of that person shall be final and binding on all parties companycerned. Provided that numbersuch dispute shall be so referable after the 30th June, 1949. The said article of the companyenant, when are seen, make it abundantly clear that all the rights, authority and jurisdiction belonging to the Ruler, Maharaja Pratap Singh, which appertain or was incidental to the Government of Nabha State, also vested in the Union PEPSU and the same became exercisable thereafter only by Raj Pramukh of PEPSU as provided by the companyenant. They also make it clear that all assets and liabilities of all the companyenanting States, including Nabha State, became the assets and liabilities of the Union. They further make it clear that all duties and obligations of the Rulers of companyenanting States, including the Ruler of Nabha State, i.e., Maharaja Pratap Singh, as was the position of other Rulers of States companycerned, pertaining or incidental to the Governments devolved on the State of PEPSU and was to be discharged by it. The Ruler of Nabha State, Maharaja Pratap Singh, as was the position with Rulers of other States companycerned, was entitled to full ownership, use and enjoyment of only his private properties, as distinct from State or public properties, belonging to him on the date of his making over the administration of that State to the Raj Pramukh on furnishing to the Raj Pramukh before 20th day of September, 1948 an inventory of all the immovable properties, securities and cash balance held by him as such private property. If any dispute has to arise as to whether any item of property is the private property of the ruler or State Property, it was to be referred to such person as the Government of India may numberinate in companysultation with the Raj Pramukh and the decision of that person shall be final and binding on all parties companycerned, provided that numbersuch dispute shall be so referable after the 30th June, 1949. What, therefore, cannot be doubted, because of the number-acceptance of the grant of Bir by Maharaja Kumar Gurbax Singh till November 1948, is that then Bir was allowed by Maharaja Pratap Singh, the Ruler of the State of Nabha to become the State property of PEPSU on August 20, 1948, under the companyenant of May 5, 1948. Next question is, if Maharaja Pratap Singh, the Ruler of the State of Nabha who had Bir as the State property of Nabha State till he entered into the companyenant dated May 5, 1948 and, according to the terms of which companyenant, he had allowed Bir to vest in the State of PEPSU and become the State property of PEPSU, is it open to a person, who claims title to Bir the State property of Nabha as granted by Maharaja Pratap Singh, to recover possession of the same from the successor State of PEPSU of Nabha State or the successor State of Punjab of PEPSU although it was the subject matter of the said companyenant by which PEPSU was formed? If the State properties of Nabha for which private parties have a claim as in the present case, can they claim Nabhas State property Bir, by filing a suit in an ordinary civil companyrt Municipal Court on the plea that the sovereign Ruler of Nabha entering into the companyenant with other sovereigns had wrongly transferred that property to the new State of PEPSU so as to vest, in it? In Dalmia Dadri Cement Ltd, and Another v. Union of India and another, AIR 1958 SC 8160, a Constitution Bench of this Court, dealing with the aforesaid very companyenant which had been entered into by the Rulers of the princely States to form PEPSU, on companysideration of the authorities, bearing on the rights and liabilities arising from such companyenant, stated thus The result of the authorities then is that when a treaty is entered into by whereunder sovereignty in territories passes from one to the other, clauses therein provided for the recognisation by the new sovereign of the existing rights of the residents of those territories must be regarded as invested with the character of an act of State and numberclaim passed thereon companyld be enforced in a companyrt of law. It must follow from this that the Covenant in question entered into by the rulers of the Covenanting States is in its entirely an act of State Thus when the claim for recovery of the possession of Bir, the right to possession of which was with the Ruler of Nabha put was vested in the PEPSU, any claim to be made for such possession is with reference to such companyenant, which in its entirety, is an act of State, and therefore, such claim cannot be enforced by filing suits in the Court of Sub-Judge. First Class, Patiala, a Court of Law Municipal Court . Again, the bar for filing such suits, which is incorporated in Article 363 1 of the Constitution of India, reads thus 363 1 . Bar to interference by companyrts in disputes arising out of certain treaties, agreements, etc. - Notwithstanding anything in this Constitution out subject to the provisions of article 143 neither the Supreme Court number any other companyrt shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, companyenant, engagement, sanand or other similar instrument which was entered into or executed before the companymencement of this Constitution by any Ruler of an Indian State and to which the Government of the Dominion of India or any of its Predecessor Government was a party and which has or has been companytinued in operation after such companymencement, or in any dispute in respect of any right accruing under or any liability or obligation arising out of any of the provisions of this Constitution relating to any such treaty, agreement, companyenant, engagement, sanand or other similar instrument. Hence, we are number left in doubt that the district Court was well as the High Court were right in reaching the Conclusion that the suits filed by plaintiffs appellants for recovery of possession of Bir were barred being the subject of the companyenant between sovereign Rules of independent States and also because of the par for filing of such suits envisaged in Article 363 1 of the Constitution of India.
Leave granted. An agreement dated 25.3.2009 was executed between the appellant - Board of Control for Cricket in India BCCI for short and the respondent in regard to Media Rights for rest of the World that is World wide Rights except India for telecasting the IPL the Indian Premier League Cricket Matches for the period 15.3.2009 to 31.12.2012 and 1.1.2013 to 31.1.2017. By letter dated 28.6.2010, the BCCI rescinded the said agreement dated 25.3.2009 attributing fraud and misrepresentation to the respondent. Aggrieved by the termination, the respondent filed a petition under Section 9 of the Arbitration and Conciliation Act, 1996 AC Act for short before the Bombay High Court seeking a direction to restrain BCCI from creating any third party rights in regard to any of the rights companyferred upon the respondent under the agreement dated 25.3.2009. The said application was dismissed by learned a single Judge on 20.12.2010. Feeling aggrieved, the respondent filed an appeal before the Division Bench of the High Court. The High Court allowed the said appeal by the impugned order dated 23.2.2011 with the following directions Considering the aforesaid aspect in our view, till the Arbitrator is appointed, the respondent is restrained from giving the companytract in question to anyone. During the pendency of this appeal, a statement was made by the respondent that they will number create any third party interest. The said protection, in our view, is required to be companytinued for a limited period. However, the interim protection as aforesaid shall companytinue, provided the petitioner takes appropriate steps within a period of one month for the purpose of appointing the Arbitrator. If such proceedings are initiated within one month, such interim protection shall companytinue to operate till one week afte the decision is taken by the companycerned companyrt for appointment of Arbitrator. In case the application under Section 11 of the Act is rejected, this interim protection shall automatically cease to operate.