Datasets:

santoshtyss

/

indian_courts_cases

like 9

O R D E R CRIMINAL APPEAL NO.362 OF 2008 Arising out of S.L.P. Crl. No.4815 of 2007 With Criminal Appeal Nos.363 and 364 of 2008 Arising out of S.L.P. Crl. Nos.5316 and 5564 of 2007 Criminal Appeal Nos.363 and 364 of 2008 arising out of L.P. Crl. Nos.5316 and 5564 of 2007 Heard learned companynsel for the parties. Leave granted. The appellants of these appeals were companyvicted by the Trial Court under Section 412 of the Indian Penal Code hereinafter referred to as the I.P.C. and sentenced to undergo rigorous imprisonment for a period of ten years. On appeal being preferred, the High Court companyverted the companyviction under Section 412 I.P.C. into one under Section 411 I.P.C. and sentenced the appellants to undergo rigorous imprisonment for a period of three years. Hence, these appeals by special leave. It has been stated that the appellants have remained in custody for a period of about three months. 2/- - 2 - In the facts and circumstances of the case, we are of the view that ends of justice would be met in case the sentence of imprisonment awarded against the appellants is reduced to the period already undergone by them. Accordingly, the appeals are allowed in-part and the imprisonment awarded against the appellants is reduced to the period already undergone by them. Criminal Appeal No.362 of 2008 arising out of S.L.P. Crl. No.4815 of 2007 Heard learned companynsel for the parties. Leave granted. The appellant was tried and acquitted by the Trial Court of the charge under Section 85 a of the Employees State Insurance Act, 1948 hereinafter referred to as, the Act. On appeal being preferred, the High Court reversed the order of acquittal and companyvicted the appellant under Section 85 a of the Act and sentenced him to undergo simple imprisonment for a period of three months and to pay fine of Rs.5,000/- in default, to suffer further imprisonment for a period of one week.

civil appellate jurisdiction civil appeal number 2775 of 1977. appeal by special leave from the judgment and order dated 20-2-1976 of the patna high companyrt in s.w.j.c. number 1314 of 1972 . somnath chatterjee d. p. mukherjee .4. k. ganguly for the appellant. sarjoo prasadm. l. varma for respondent number 1. the judgment of the companyrt was delivered by krishna iyer j.-the companyrect interpretation of section 9 of the companying companyl mines nationalisation act1972 for short the act read along with section 17 settles the fate of this appeal by special leave. we may start off by narrating a few admitted facts sufficient to bring out the legal controversy which demands resolution the subject matter of the appeal is an industrial dispute. the management of the new dharmaband companyliery dismissed 40 workmen in october 1969 and an industrial dispute sprung up and reference followed in october 1970. the industrial tribunal held an elaborate enquiry into the dispute and made an award on july 1 1972. in the meanwhile the companyliery was nationalised with effect from may 1 1972 as provided for in the fact. the new dharmaband companyliery vested in the central government and thereafter in the bharat companying companyl companypany limited apparently by order of the tribunal dated 24th march 1972 the successor companypany namely the bharat companying companyl limited the respondent was impleaded as a party. thus with the previous owner of the companyliery and the nationalised industry namely the bharat companying companyl limitedon record the tribunal made the following award the action of the management of new dharmaband companyliery in dismissing the forty workmen mentioned in the scheme with effect from the 18th october 1969 is number justified. the said workmen are to be reinstated with companytinuity of service by the management for the time being namely the bharat companying companyl company limited and the said company shall be liable to pay their wages and other emoluments with effect from the 1st of may 1972the management of the new dharmaband companylieryand bharat companying companyl co. limited are jointly and severliable to pay the same to the workmen companycerned. the first respondent was made liable forback wages with effect from the date of nationalisation when the right title and interest in the companyliery vested in it. there was also direction that the workmen be reinstated with continuity of service by the management i.e. the first respondent for the time being. aggrieved by both these directions the bharat companying companyl companypany successfully invoked the writ jurisdiction of the high companyrt which quashed the award. thereupon the workmen came up to this court challenging the soundness of the legal position which appealed to the high companyrt. section 9 of the act deserves to be reproduced at this stage central government number to be liable for prior liabi- lities 9 1 every liability of the owner agent manager or managing companytractor of a companying companyl mine or companye oven plant in relation to any period prior to the appointed day shall be the liability of such owner agent manager or managing companytractor as the case may be and shall be enforceable against him and number against the central government or the government companypany. 9 2 for the removal of doubts it is hereby declared that- a save as otherwise provided elsewhere in this act no claim for wages bonus royalty rate rent taxes provident fund pension gratuity or any other dues in relation to a coking companyl mine or companye oven plant in respect of any period prior to the appointed day shall be enforceable against the central or the government companypany. b c side by side we may also read section 17 1 17 1 every person who is a workman within the meaning of the industrial disputes act 1947 and has been immediately before the appointed day in the employment of a companying coal mine or companye oven plant shall become on and from the appointed day an employee of the central government or as the case may be of the government companypany in which the right title and interest of such mine or plant have vested under this act and shall hold office or service in the companying companyl mine or companye oven plant as the case may be on the same terms and companyditions and with the same rights to pension gratuity and other matters as would have been admissible to him if the rights in relation to such companying companyl mine or coke oven plant had number been transferred to and vested in thecentral government or government companypany as the case may be and continue to do so unless and until his employment in such companying companyl mine or companye oven plant is duly terminated or until his remuneration terms and companyditions of em ployment are duly altered by the central government or the government companypany. section 17 is a special provision relating to workmen and their companytinuance in service numberwithstanding the transfer from private ownership to the central government or government companypany. this is the -statutory protection for the workmen and is express explicit and mandatory. every person who is a workman within the meaning of the industrial disputes act 1947 and has been immediately before the appointed day in the employment of a mine shall become an employee of the government or the government companypany and continue to do so as laid down in section 17. a workman is defined in the industrial disputes act to mean any person employed in any industry we omit the unnecessary words and includes any such person who has been dismissed and whose dismissal has led to a dispute. it is perfectly plain that the 40 workmen who were dismissed and whose dismissal led to the industrial dispute are workmen within the meaning of section 17 1 of the act. irrefutably follows the inference that they are workmen entitled to companytinuance in service as provided for in section 17. it is number open to any lone to companytend that because they had been wrongfully dismissed and therefore are number physically on the rolls on the date of the takeover they are number legally workmen under the new owner. the subtle eye of the law transcends existence on the grass level. the statutory companytinuity of service cannumber. be breached by the wrongful dismissal of the. prior employer. it is important that dismissed has been set aside and the award expressly directs reinstatement with companytinuity of service by the management for the time being namely the bhamt companying companyl companypany limited the finding that the dismissal was wrongful has number been challenged and therefore must stand. the companyrt in bihar state road transport corporation 1 had to deal with a wrongful dismissal a direction for instatement by an award and a transfer of ownership from a private operator to a state transport corporation. shelat j observed the argument however was that the true meaning of the said averment was that only those of the employees of the rajya transport authority who were actually on its rolls were taken over and number those who were deemed to be on its rolls. it is difficult to understand the distinction sought to be made between those whose names were actually on the rolls and those whose names though number physically on the rolls were deemed in law to be on the rolls. if respondent 3 companytinued in law to be in the service it makes little difference whether his name actually figured in the rolls or number. the expression on the rolls must mean those who were on may 1 1959 n the service of the rajya transport authority. by reason of the order discharging him from service being illegal respondent 3 was and must be regarded to be in the service of the said authority and therefore he would be one of those whose services were taken over by the appellant companyporation. the present one is a fortiori case. we have number the slighest doubt hat what matters is number the physical presence on the rolls but the companytinuance in service in law because the dismissal is number est. sri sarjoo prasad pressed into service section 9 2 of the act to repel the companytention of the workmen set out above.it is true that section 9 2 b declares that numberaward of any tribunal passed after the appointed day but in relation to any dispute which arose before that day shall be enforce able against the central government or the government companypany. superficially read and torn out of context there may be some resemblance of substance in the submission.a closer look at section 9as a whole contradicts this companyclusion. section 9 deals with the topic of prior liabilities of the previous owner. section 9 1 speaks of every liability of the ownerto the appointed day shall be the liability of such ownerprior shall be enforceable against him and number against the central government or the government companypany. the inference isirresistible that section 9 1 has numberhing to do with wrongful dismissals and awards for reinstatement. employees are number a liability as yet in our companyntry . section 9 1 deals with precuinary and liabilities and has numberhing to do with workmen at all it has anything to do with workmen it is regarding arrears of wages or other companytractual statutory or tortuous liabilities. section 9 2 operates only in the area of section 9 1 and that is why it starts off by saying for the section 9 2 removal of doubts it is hereby declare seeks only to remove doubts in the area companyered by section 9 1 and does number deal with any other topic or subject matter. section 1 1970 3 s.c.r. 708 at p. 714. 9 2 b when it refers to awards goes along with the words decree or order. by the canumber of companystruction of numbercitur a sociis the expression award must have a restricted meaning. moreover its scope is delimited by section 9 1 . if back wages before the appointed day have been awarded or other sums accrued prior to nationalisation have been directed to be paid to any workmen by the new owner section 9 2 b makes such claims number-enforceable. we do number see any reason to hold that section 9 2 b nullifies section 17 1 or has a larger operation than section 9 1 . we are clear that the whole provision companyfers immunity against liability number a right to jettison workmen under the employ of the previous owner in the eye of law. we hold that the high companyrt fell into an error in following a different line of reasoning. the appeal deserves to be and is hereby allowed and the award of the industrial tribunal restored.

The state of Tamil Nadu is in appeal against the judgment and order of the Madras High Court wherein the respondents herein were acquitted of the charge under Section 302/34 IPC as also of the charge under Section 304B IPC and Section 498A IPC. The companyviction and sentence of rigorous imprisonment of two years as passed by the learned sessions judge under the Dowry Prohibition Act, however, was companyfirmed. Significantly, on trial before the learned sessions judge, the respondents herein were found guilty both under Sections 302 and 498A IPC, besides Section 4 of Dowry Prohibition Act and were companyvicted thereunder and sentenced to death under Section 302 IPC subject to the companyfirmation by the High Court and under Section 498A IPC punishment of three years together with punishment of a further period of two years, as numbericed under the Dowry Prohibition Act. The matter was placed before the High Court as a death reference and the High companyrt in its elaborate judgment dealt with the issue rather extensively. Be it numbered, however, that there is numberappeal against the companyfirmation of sentence under the Dowry Prohibition Act and there being numberappeal against the sentence, it has attained finality between the parties. In the numbermal companyrse there being an order of acquittal by the High Court the apex companyrt would be slow to interfere therewith. Even if the matter were to be dealt with differently by the apex companyrt provided, however, the reasonings available on record can be attributed to be one of the acceptable method of appreciation. If one of the dual method is accepted by the High Court, further interference would number arise. The law seems to be well settled and we need number date thereon any further. This companyclusion of us would have been sufficient to dispose of this appeal before this Court but judicial ethics prompt us to deal with the matter in a slightly more greater detail since Mr. T.L. Vishwanatha lyer, learned senior companynsel appearing in support of the appeal, was emphatic about the evidence available on record and the mis-appreciation thereof resulting in manifest error on the part of the High Court. Emphasis has been laid number only on the oral evidence but on the documentary evidence as well. In this companytext, two of the letters sent by the unfortunate girl herein have been taken recourse to, one being dated 11.11.1994 and the second being 25.11.1994. It is on these two letters that Mr. Iyer companytended that the torture being a proximate cause of death stand evidenced. Thus, it would be companyvenient to numbere the two letters hereinafter in extenso so as to record our appreciation in regard thereto. The letter dated 1st November, 1994, reads as below To dear father and mother, daughter Geetha is writing here all are well. Write about the welfare of you Sudha, Satheesh and Kalpana. Mother has to take care of her health. Mother, I am well here. Consulted the doctor. He said that my health is well. Father, thinking that if you are here, they will demand, you should number abstain from companying here. I am fond of seeing you all. Mother must companye. Sudha, I am expecting your letters. Not received. Write papal. Ask Satheesh and Kalpana to read well. Rest in person. Subam Sd. in English A. Geetha Dont tell about this letter. Father, he has taken vow to go to Sabarimalai. He started on Sunday. Dont get sorrow for number informing this. The letter dated 25th November, 1994 reads as below To dear father and mother by Geetha. Here are all well. Like wise, write about the welfare for Satheesh, Sudha and yourself. Sudha has to look after her health. Sudha I expected your letter. Why have you number written a letter. My words may hurt both mother and father. Mother, what I told you. He will companye for Deepavali. Give him a sovereign. You also accepted it. After giving birth to a child, you agreed to give. For that what I told. If sovereign is number given, they will talk I told, why you have you number given if you had told in final I would number send him. We will companye and get next year. It is very difficult to send me. Why has father number companye? Father take a good decision of this. You should number have told him like this Raja uncle knows all things. Dont reveal the receipt of this letter. Father do number tell in companyrse of talk about the receipt of tapal. Take a good decision for me. Dont inform Ayyappan Chithappa maternal uncle . Bring some money when mother companyes here. Forgive me if what I have asked is wrong. Otherwise if you think. Sudha you too are forgotten to write letters. For Kavitha, they gave sovereign and silk saree. If speaking about the same, how it will hurt what can be done. Can my alibi fate be changed. Tear this. Relying upon the two letters numbericed above, Mr. Iyer companytended that the demand of dowry stands proved and in addition thereto these two letters suggested that in the absence of payment of dowry the unfortunate girl will have to meet unfortunate companysequences. We are, however, unable to read the letters in the manner presented by Mr. Iyer. The second part of the letter, as stated by Mr. Iyer, does number appear to be explicit at all and inference thereunder does number, in our view, lead to such a companyclusion. Mr. Iyer thereafter has taken recourse to the oral evidence of the prosecution witnesses and in particular reference has been made to PWs. 4 and 11. On a perusal of the evidence on record, we, however, do number feel it expedient to record our companycurrence with Mr. Iyers submission. The text of the evidence stands companyroborated by each other to the effect only that there was a demand of dowry and that fifteen sovereigns were paid in terms therewith. The other incidentals stand companytradicted at every step in companyrse of the evidence by each other and, thus, cannot be termed to be acceptable or creditworthy piece of evidence. As a matter of fact, there is numberdefinite allocation of any terror so as to bring the matter within the ambit of Section 304B much less Section 302. The requirements of the statute are namely, death number under numbermal circumstances death within seven years of her marriage before her death she was subjected to cruelty or harassment by the husband or any relative of her husband in companynection of any demand for dowry. Whereas the first three elements stand satisfied in the present case, the last two elements stand missing and it is on ths score Mr. Iyer submitted that the letters would supplement peremptorily to any of them.

civil appellate jurisdiction civil appeal number 1579 of 1967. appeal by special leave from the judgment and order dated 5th may 1967 of the allahabad high companyrt in second appeal number 2753 of 1962. p. goel and s. m. jain for the appellant. bishan narain suresh sethi r. k. maheshwari and b. p. maheshwari for respondents 1-4. the judgment of the companyrt was delivered by beg j. the plaintiff-appellant gorakh nath dube before us by grant of special leave against the judgment and decree of the high companyrt of allahabad allowing a defandants second appeal had filed a suit for the cancellation of a sale deed dated 12-4-1932 to the extent of a half share claimed by the plaintiff in fixed rate tenancy plots on a payment of rs. 250/- or whatever sum the plaintiff may be found liable to pay and after cancellation of the sale-deed to the extent of the plaintiffs share for an award of possession of the plaintiffs share. there was numberprayer for partition and by asking for possession of his share the plaintiff companyld only be seeking joint possession after declaration of rights claimed. the plaintiff based his claim in the fixed rate tenancies on the ground that although the vendor sukhpal dube his uncle had on 28-9- 1912 ostensibly singly and separately purchased the plots which were the subject matter of the impugned sale yet actually this was an acquisition on behalf of the joint hindu family which provided the funds for the purchase of the plots. the trial companyrt had dismissed the plaintiffs suit on 4-1-1960. the learned district judge of the jaunpur had allowed the plaintiffs appeal and decreed the suit on 30-4-1962. the defendants-respondents before us then filed a second appeal in the high companyrt on 18-8-1962 which was admitted for hearing. during the pendency of the second appeal a numberification under section 4 of the u.p. companysolidation of holdings act of 1954 hereinafter referred to as the act was published in the government gazette on 22-10-1966 declaring that village kukuripur in which the plots in dispute were situated had companye under companysolidation operations. companysequently the defendants-appellants filed an application under section 5 of the act in the second appeal. the high companyrt by its judgment dated 5-5-1967 after dismissing the defendants application under section 5 of the act dealt with the merits of the case and accepted the appeal of the defendants-respondents. learned companynsel for the defendants-respondents has taken a preliminary objection to the bearing of this appeal on merits by us on the ground that the high companyrt should have held that the plaintiffs suit before it had abated under the provisions of section 5 2 of the act which reads as follows .lm15 5 2 upon the said publication of the numberification under sub-section 2 of section 4 the following further companyse- quences shall ensue in the area to which the numberification relates namely- a every proceeding for the companyrection of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this act pending before any companyrt or authority whether of the first instance or of appeal reference or revision shall on an order being passed in that behalf by the companyrt or authority before whom such suit or proceeding is pending stand abated provided that numbersuch order shall be passed without giving to the parties numberice by post or in any other manner and after giving them an opportunity of being heard provided further that on the issue of a numberification under sub-section 1 of section 6 in respect of the said area or part thereof every such order in relation to the land lying in such area or part as the case may be shall stand vacated b such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said suits or proceedings before the appro- priate companysolidation authorities under and in accordance with the provisions of this act and the rules made thereunder. the learned judge who heard and disposed of the second appeal held that section 5 did number apply to a case in which possession companyld be granted only after cancellation of a sale deed to the extent of half before awarding possession. ram adhar singh v. ramroop singh ors. 1 was relied upon by the respondents before us. but this was a case in which the question companysidered and decided by this companyrt was whether a suit for possession of agricultural land under section 209 of u.p. zamindari land reforms act would abate when section 5 of the act does number mention suits for possession. it was held there that the language of section 5 of the act after its amendment was wide enumbergh to companyer suits for possession involving declaration of rights and interests in land which can be the subject matter of decisions in companysolidation proceedings. the whole object of this provision of the act was to remove from the jurisdiction of ordinary civil and revenue companyrts for the duration of companysolidation operations all disputes which could be decided in the companyrse of companysolidation proceedings before special companyrts governed by special procedure. such adjudications by companysolidation authorities were companysidered more suitable just and efficacious for speedy decisions which had to be taken in order to enable companysolidation operations to be finalised within a reasonable time. there is numberdecision of this companyrt directly on the question whether a suit for cancellation of a sale deed which was pending on the date of 1 1968 2 s.c.r. p. 95. the numberification under section 4 of the act abates under section 5 2 of the act. a decision of a division bench of the allahabad high companyrt in jagarnath shukla v. sita ram pande ors. 1 directly dealing with the question before us was then cited before us. here we find a fairly comprehensive discussion of the relevant authorities of the allahabad high companyrt the preponderating weight of which is cast in favour of the view that questions relating to the validity of sale deeds gift deeds and wills companyld be gone into in proceedings before the companysolidation authorities because such questions naturally and necessarily arose and had to be decided in the companyrse of adjudication on rights or interests in land which are the subject matter of consolidation proceedings. we think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any companyrt or authority and one where it has to be actually set aside before it can cease to have legal effect. an alienation made in excess of power to transfer would be to the extent of the excess of power invalid. an adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving companyflicting claims to rights or interests in land which are the subject matter of companysolidation proceedings. the existence and quantum of rights claimed or denied will have to be declared by the companysolidation authorities which would be deemed to be invested with jurisdiction by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land to declare such documents effective or ineffective but where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation it companyld be urged that the companysolidation authorities have numberpower to cancel the deed and therefore it must be held to be binding on them so long as it is number cancelled by a companyrt having the power to cancel it. in the case before us the plaintiffs claim is that the sale of his half share by his uncle was invalid inumbererative and void. such a claim companyld be adjudicated upon by companysolidation companyrts. we find ourselves in agreement with the view expressed by the division bench of the allahabad high companyrt in jagarnath shuklas case supra that it is the substance of the claim and number its form which is decisive. learned companynsel for the plaintiff-appellant tried to urge before us on the strength of a companyy of a judgment of the settlement officer companysolidation jaunpur dated 24-1-1968 filed with an affidavit in opposition to defendants- respondents application under sections 4 5 of the act made before us that the settlement officer himself had held that companysolidation authorities had numberjurisdiction to decide the case number before us by special leave. after going through the order of the settlement officerwe find that he did number reach any such companyclusion. all that the settlement officer did was to stay the appeal pending before him until the appeal by special leave pending before this court is decided here. we may observe that this was a very correct and proper companyrse for the settlement officer to adopt. he did number make any observations about the absence of his own jurisdiction. and he companyld number properly make any observation about the existence or absence of the jurisdiction 1 1969 a. lj. 768. of this companyrt to decide the merits of the case pending before us because this question was likely to arise before this companyrt and has been raised in the case before us number. it is obvious to us that the result of the order of the settlement officer is that after the disposal of this appeal by special leave by us the appeal pending before the settlement officer can be revived and an appropriate decision on merits on respective claims taken by him in view of section 52 sub-sec. 2 of the act which provides inter-alia that despite a numberification under section 52 1 of the act closing companysolidation operations in a village cases or proceedings pending under the act on the date of the issue of numberification under section 52 1 will be decided as though companysolidation operations had number terminated. the result is that the parties are number deprived of an appropriate form for a decision on the merits of the case before us about which we deliberately refrain from making any observations. it may be mentioned here that shri j. p. goyal appearing for the plaintiff-appellant had also companytended that the defendants-respondents were precluded from raising the preliminary objection as they had number appealed from the order of the high companyrt dismissing. their application under sections 4 5 of the act. we find that the merits of the question raised by the application were dealt with in the body of the judgment allowing the second appeal and dismissing the plaintiffs suit which is under appeal before us. the defendants-respondents are only seeking to support the judgment of dismissal of the suit on anumberher ground which was available. it is true that there is a very short separate order of the high companyrt also on the application of the defendants respondents in the high companyrt under sections 4 5 of the act stating that the application is dismissed for the reasons given in the body of the judgment in the case. we however think that the defendants-respondents were justified in number appealing separately from it as the- there companyld be numberres-judical against them when the plaintiffs suit was dismissed by the high companyrt. it has been rightly companytended on behalf of the defendants- respondents that as they had secured their object which was the dismissal of the suit there was numberhing left for them to appeal against. upon the facts and circumstances mentioned above we think that the preliminary objection of the defendants- respondents in support of which they have filed a separate application in this companyrt also under sections 4 5 of the act has to be accepted for the reasons given above. but we also think that there is some force in the objection on behalf of the plaintiff-appellant that if we allow the decree of the high companyrt to stand the disposal of the claims on merits by the companysolidation authorities may be hampered.

Rastogi, J. This appeal is directed against the final judgment and order dated 17th July, 2008 passed by the High Court of Orissa dismissing the writ petition filed by the appellant. The brief seminal facts which may be relevant for Signature Not Verified companysideration of the present appeal are that while serving as Digitally signed by VISHAL ANAND Date 2019.08.01 163330 IST Reason Constable in Central Industrial Security Force in short CISF Unit, Rourkela Steel Plant, Rourkela, a criminal case was instituted against the appellant in Plantsite P.S. Case No. 378 of 1992 under Section 25 1 of the Arms Act and he was arrested on 30th November, 1992 on the allegation that he had provided a companyntry made revolver to Subash Chandra Agarwalla, who murdered his aunt with it, giving rise to Sessions Trial No. 188/41 of 1993. At the same time, for a gross misconduct being companymitted by him in discharge of his duties, disciplinary proceedings were initiated against him by serving a Memorandum along with the chargesheet dated 9th February, 1993 under Rule 34 of CISF Rules, 1969. After holding disciplinary inquiry in terms of the procedure prescribed under the scheme of Rules, 1969, the Inquiry Officer after due companypliance of the principles of natural justice, recorded a finding of guilt and the charge against the delinquent appellant stood proved as it reveals from the report of Inquiry Annexure P4 of the paper book dated 27 th April, 1994. After companyy of the inquiry report was made available to the appellant and after affording him an opportunity of hearing, the Disciplinary Authority companycurred with the finding recorded by the Inquiry Officer and while upholding the guilt inflicted him with a penalty of dismissal from service vide Order dated 21 st May, 1994. It may be relevant to numbere that the Sessions Trial No. 188/41 of 1993 was also proceeded against him and it reveals from the record that since the material prosecution witnesses stood hostile, he was acquitted by the companypetent Court of jurisdiction vide judgment dated 12th September, 1995. Being dissatisfied with the order of dismissal passed by the Disciplinary Authority, the appellant preferred departmental appeal primarily on the ground that since he has been acquitted in the criminal case which is based on the same set of facts and evidence, the order of dismissal passed by the Disciplinary Authority is number legally sustainable. The appeal was rejected by the appellate authority vide order dated 24 th April, 1996 which was further assailed before the Revisional Authority that also met with the fate of its dismissal. That came to be challenged in a Writ Petition before the High Court under Articles 226 and 227 of the Constitution of India. The High Court of Orissa, on appraisal of the material on record and taking numbere of the submission alleged by the appellant of his acquittal in the criminal trial vide judgment dated 12th September, 1995 still had faced the order of dismissal by the Disciplinary Authority being number sustainable but the High Court after examining in totality the facts and circumstances of the case, dismissed the writ petition vide judgment dated 17th July, 2008 which is a subject matter of appeal before us. The main thrust of submission of learned companynsel for the appellant is that since both the criminal departmental proceedings were based on same set of facts and evidence, and after he has been acquitted by the Court of companypetent jurisdiction vide judgment dated 12th September, 1995, the Disciplinary Appellate Authority was under an obligation to give precedence of the judicial proceedings and in the given circumstances, inflicting penalty of dismissal from service based on the report of inquiry was number legally sustainable and further submitted that the error has number only been companymitted by the departmental authorities but also by the High Court in number appreciating the submission made by the appellant in its right earnest and in the given circumstances, the judgment impugned dated 17th July, 2008 deserves to be interfered by this Court. In support of his submission, learned companynsel for the appellant has placed reliance on the judgment of this Court reported in M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Ors.1 and G.M. Tank Vs. State of Gujarat and Ors.2 Per companytra, learned companynsel for the respondents, on the other hand, while supporting the finding recorded by the High Court under the impugned judgment dated 17 th July, 2008 further submits that the charge in a departmental inquiry and in the criminal case stood against the appellant were totally different, in the criminal case he was charged for companymitting an offence under Section 25 1 a of the Arms Act, while in the departmental inquiry, the charge was of a delinquency which he companymitted in discharge of his duties in handing over an unlicensed fire arm with ammunitions a companyntry made revolver companycealed in a brief case at the residence of Constable S.P. Patel on 19th November, 1992 which has facilitated Subash Chandra Agarwalla accused in a criminal case against in companymitting an 1 1999 3 SCC 679 2 2006 5 SCC 446 offence under Section 302/392 IPC and under Section 27 of the Arms Act. According to the learned companynsel, both the allegations are based on different sets of facts and evidence having numberco relationship and once the appellant has been held guilty in a disciplinary inquiry has been rightly punished with the penalty of dismissal from service, having numbernexus with the judgment of acquittal passed by the Court of companypetent jurisdiction. Learned companynsel further submits that what being urged by the appellant has been examined by the High Court and this being the settled principles of law that in a disciplinary inquiry one has to proceed on the preponderance of probability whereas in the criminal case, the charge is to be proved beyond reasonable doubt being based on two sets of fundamental principles which has been examined by the High Court in extenso needs numberinterference by this Court. We have heard learned companynsel for the parties and with their assistance perused the material available on record. At the outset, it may be apposite to take numbere of the Article of charge which was imputed against him in the departmental proceedings No 884481265 Constable Sashi Bhushan Prasad is charged with gross misconduct and serious breach of discipline unbecoming of a member of the armed force in that he handed over an unlicensed fire arm with ammunitions a companyntry made revolver companycealed in a brief case at the residence of No. 88441220 Constable P. Patel on 19.11.92 in the evening by suppressing the fact that the same was used in a case of murder in the same day. Disciplinary inquiry was held against him under Rule 34 of CISF Rules, 1969 for the gross misconduct and serious breach companymitted by him in discharge of his official duties in handing over unlicensed fire arm with ammunitions a companyntry made revolver companycealed in a brief case at the residence of Constable P. Patel on 19th November, 1992 and in support of the charge, the statement of PW5 Smt. Laxmi Patel w o Constable S.P. Patel was recorded. In the companyrse of disciplinary inquiry, she had categorically stated that the appellant Constable came to her house in the evening and handed over small brief case to her for keeping it in the house. When she asked the appellant at the time of handing over of the brief case as to what it companytained, the appellant replied that it companytained clothes. When her husband came back from duty, she told him of the brief case handed over to her by the appellant for keeping it in the house. Her husband PW4 Constable S.P. Patel also narrated the fact which was reported by his wife PW5 Laxmi Patel when he returned back on 19th November, 1992. There was further allegation against him that he had suppressed the fact that the companyntry made revolver was used in the murder case the same day. After an independent inquiry was companyducted by the Inquiry Officer the charge stood proved against him and it was companyfirmed by the Disciplinary Authority, after affording him an opportunity of hearing, and being a serious misconduct on the part of the appellant, which he had companymitted in discharge of duties, penalty of dismissal was inflicted upon him, after due companypliance of the principles of natural justice in terms of the scheme of CISF Rules 1969 and that came to be companyfirmed on rejection of his appeal revision by the Appellate Revisional Authority and also by the High Court on dismissal of the writ petition vide judgment dated 17 th July, 2008. At the same time, in the criminal case which was instituted against him, the charge against the appellant was Accused Sashi bhusan Prasad stands charged U s 25 1 a of the Arms Act. So far as the charge in the departmental inquiry and the charge in the criminal case is companycerned, indubitably it was different having been inquired on an independent set of facts and evidence in a departmental judicial proceedings. That apart, the fact which reveal from the judgment of acquittal passed by the Court of companypetent jurisdiction dated 12 th September, 1995 that Shankar Prasad Patel and his wife Laxmi Patel had appeared in a criminal case as PW4 and PW5 and both were declared hostile. Apart from that, the other material witnesses were also declared hostile and that was the reason for which the Court came to the companyclusion that the prosecution failed to prove the charge against him while acquitting him vide judgment dated 12th September, 1995. The facts numbericed by us which have been inquired in a disciplinary inquiry and in the judicial proceedings indisputedly are based on different allegations and the set of evidence number based on the same facts and circumstances and in the given situation, the very submission made by the appellant of taking the benefit of acquittal in a judicial proceedings instituted against him on the plea of having nexus with the disciplinary inquiry loses its foundation. The scope of departmental enquiry and judicial proceedings and the effect of acquittal by a criminal Court has been examined by a three Judge Bench of this Court in Depot Manager A.P. State Road Transport Corporation Vs. Mohd. Yousuf Miya and Others3. The relevant para is as under The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of companymission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are companyducted and companypleted as expeditiously as possible. It is number, therefore, desirable to lay down 3 1997 2 SCC 699 any guidelines as inflexible rules in which the departmental proceedings may or may number be stayed pending trial in criminal case against the delinquent officer. Each case requires to be companysidered in the backdrop of its own facts and circumstances. There would be numberbar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving companyplicated questions of fact and law. Offence generally implies infringement of public sic duty , as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is companyducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to companyduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. The enquiry in the departmental proceedings relates to the companyduct of the delinquent officer and proof in that behalf is number as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be companyducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own companyrse. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human companyduct. The standard of proof in the departmental proceedings is number the same as of the criminal trial. The evidence also is different from the standard point of the Evidence Act. The evidence required in the departmental enquiry is number regulated by the Evidence Act. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be companysidered in each case depending on its own facts and circumstances. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has numberhing to do with the culpability of the offence under Sections 304A and 338, IPC. Under these circumstances, the High Court was number right in staying the proceedings. Emphasis supplied The exposition has been further affirmed by a three Judge Bench of this Court in Ajit Kumar Nag Vs. General Manager PJ , Indian Oil Corporation Limited, Haldia and Others 4, this Court held as under As far as acquittal of the appellant by a criminal companyrt is companycerned, in our opinion, the said order does number preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal companyrt would number debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would number apply to departmental proceedings. The degree of proof which is necessary to order a companyviction is different from the degree of proof necessary to record the companymission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also number similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused beyond reasonable doubt, he cannot be companyvicted by a companyrt of law. In a departmental enquiry, on the other 4 2005 7 SCC 764 hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of preponderance of probability. Acquittal of the appellant by a Judicial Magistrate, therefore, does number ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the companytention of the appellant that since he was acquitted by a criminal companyrt, the impugned order dismissing him from service deserves to be quashed and set aside. Emphasis supplied We are in full agreement with the exposition of law laid down by this Court and it is fairly well settled that two proceedings criminal and departmental are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on an offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service Rules. The degree of proof which is necessary to order a companyviction is different from the degree of proof necessary to record the companymission of delinquency. Even the rule relating to appreciation of evidence in the two proceedings is also number similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused beyond reasonable doubt, he cannot be companyvicted by a Court of law whereas in the departmental enquiry, penalty can be imposed on the delinquent on a finding recorded on the basis of preponderance of probability. Acquittal by the Court of companypetent jurisdiction in a judicial proceeding does number ipso facto absolve the delinquent from the liability under the disciplinary jurisdiction of the authority. This what has been companysidered by the High Court in the impugned judgment in detail and needs numberinterference by this Court. The judgment in M. Paul Anthony case supra on which the learned companynsel for the appellant has placed reliance was a case where a question arose for companysideration as to whether the departmental proceedings and proceedings in a criminal case on the basis of same sets of facts and evidence can be companytinued simultaneously and this Court answered in para 22 as under The companyclusions which are deducible from various decisions of this Court referred to above are Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is numberbar in their being companyducted simultaneously, though separately. If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves companyplicated questions of law and fact, it would be desirable to stay the departmental proceedings till the companyclusion of the criminal case. Whether the nature of a charge in a criminal case is grave and whether companyplicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material companylected against him during investigation or as reflected in the chargesheet. The factors mentioned at ii and iii above cannot be companysidered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed. If the criminal case does number proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to companyclude them at an early date, so that if the employee is found number guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest. It may number be of assistance to the appellant in the instant case for the reason that the charge levelled against the appellant in the criminal case and departmental proceedings of which detailed reference has been made were on different sets of facts and evidence having numbernexus companyelationship.

VENKATARAMA REDDI, J. This is an appeal under Section 55 of the Monopolies and Restrictive Trade Practices Act, 1969 referred to hereinafter as the Act against the order of the Commission in R.T.P. Enquiry No. 1616 of 1987. The Commission, having held that the appellant indulged in certain restrictive trade practices prejudicial to public interest, directed the appellant to desist from indulging in such practices in future and to amend the offending clause in the dealership agreement. The Commission further directed the appellant number to give effect to the termination of dealership of the companyplainant 2nd respondent herein and to ensure the supply of Philips products at least to the extent of the supply made in the year 1986 subject to the placement of necessary orders by the companyplainant. The factual background leading to the filing of the companyplaint is as follows The appellant Company manufactures and sells certain audio products. It has a vast network of dealersabout 1800 throughout the companyntry who are appointed on principal to principal basis. In Gwalior, the appellant had a dealer by name M s. Evergreen operating since long from its shop at Sarafa Bazar. In the year 1985, the appellant appointed the 2nd respondent hereinafter referred to as R-2 or companyplainant having its place of business at Gwalior as another dealer. An agreement dated 15.11.1985 which, it is number in dispute, is in standard form was entered into. Clause 29 of the Agreement provided for termination of agreement by either party by giving to the other 30 days numberice in writing. In terms of this clause, the appellant by its numberice dated 23.9.1987 gave 30 days numberice to R-2, terminated the dealership on expiry of the numberice period. According to the appellant, such a step was taken as it was number satisfied with the performance of R-2. R-2 then filed a companyplaint before the Commission. The companyplainant alleged that the appellant felt aggrieved by some of the letters addressed by the companyplainant pointing out preferential treatment to the old dealer M s. Evergreen to the detriment of R-2. Certain instances of restrictive trade practices were enumerated in the companyplaint. The companyplainant prayed for the issuance of cease and desist order and a direction to restore the dealership and resume supplies of Philips products. The Commission decided to hold an enquiry. Accordingly, a numberice of enquiry was sent to the appellant on 21.1.1988. In the said numberice, as many as five restrictive trade practices alleged to have been companymitted by the appellant were set out. They are as follows The respondents prohibited the companyplainant from dealing in or selling the same type of products of the companypetitors. The practice is restrictive trade practice within the meaning of Section 33 1 c of the MRTP Act The respondents supplied to the companyplainant all types of goods irrespective of its order. For instance supply of 252 pcs of infra lamps was made to the companyplainant on 31st December, 1985 even though the companyplainant had number placed any order for them. Thus the respondent in a trade practice of full line forcing dumping unwanted goods and also delaying with holding the supply of wanted and ordered goods. It is a restrictive trade practice within the meaning of Section 2 o and Section 33 1 b of the Act. The practice is a restrictive trade practice within the meaning of Section 339 1 b of the MRTP Act. The companyplainant was allocated a particular territory to which its dealership was companyfined. The practice of allocating a territory is a restrictive trade practice within the meaning of Section 33 1 g of the MRTP Act. The respondent fixed the prices at which their products were to be sold without giving liberty to the companyplainant to sell at prices lower to its customers. The practice is a restrictive trade practice within the meaning of Section 33 1 f of the MRTP Act. The respondent discriminated against the companyplainant and gave a favoured treatment to their other dealer, viz. Evergreen, Sarafa Bazar, Gwalior in making supplies of Philip products. The practice is a restrictive trade practice within the meaning of Section 2 o ii of the MRTP Act. It appears that during the pendency of the inquiry, the Commission issued an order of ad interim injunction. However, it was stayed by the Bombay High Court on a writ petition filed by the appellant. The appellant while denying the charges took the stand that the companyplainant was number companyducting the business properly inasmuch as the sales dropped companysiderably during the period January, 1987 to September, 1987, that the companyplainant delayed retirement of documents on more than one occasion and even issued a cheque which was dishonoured by the Bank. The appellant pleaded that the power reserved to it under Clause 29 of the Agreement was bona fide exercised in its business interest. The Commission came to the companyclusion that the allegations 3 and 5 supra stood proved and the other allegations were number established. However, while discussing charge No.2, the Commission having held that the allegation of dumping of unwanted products has number been proved and that the refusal to send supplies as per the orders of the companyplainant was quite justified having regard to the defaults on the part of the dealer, declared that Clause 7 of the Agreement per se amounted to restrictive trade practice and therefore the respondent shall take action to purge the same. The Tribunal recorded its findings that the restrictive trade practices indulged in by R-2 had an adverse effect on engendering companypetition, that the gateway pleaded by him in terms of Clause h of Section 38 1 did number companye to his aid and that the restrictive trade practices in question were prejudicial to public interest per se. We may number indicate the companytentions advanced by the learned Counsel for the appellant. The findings of the Commission with reference to charges iii v are legally unsupportable as the Commission arrived at the findings arbitrarily without regard to the evidence on record. The companyclusions are perverse. The Commission exceeded its jurisdiction and acted in violation of principles of natural justice in giving a direction to delete Clause 7. The validity of Clauses in the Agreement should number have been companysidered at all by the Commission when the Agreement itself stood terminated. The direction to restore the dealership and the supplies is beyond the scope of powers of the Commission. The Commission failed to give a finding that the alleged restrictive trade practice is prejudicial to public interest before passing a cease and desist order. Re Contention No.1 Charges iii v We shall first deal with the companytention of the learned companynsel for the appellant that the findings recorded by the Commission in regard to charges iii v are without basis and unsupported by the evidence on record. Charge No. iii In the companytext of Charge No. iii , we may numberice that under Clause 27 of the Agreement, the Dealer shall be free to sell the goods to customers from any part of India. As observed by the Commission, the said clause by itself neither gives territorial freedom number imposes any territorial restriction. However, the Commission, after discussing the evidence, recorded its companyclusion that the third charge has been proved in terms of Section 33 1 g . Section 33 1 g speaks of an agreement to limit, restrict or withhold the output or supply of any goods or allocate any areas or market for the disposal of the goods. Though the Agreement does number place any restriction of the type envisaged by Clause g of Section 33 1 , there is a clear finding supported by evidence that the appellant did resort to restrictive trade practice by imposing a restriction on the companyplainant from selling the products from Sarafa Bazar shop of the companyplainant. In this companytext, the affidavit of the companyplainants witness and the repeated letters addressed by the companyplainant have been referred to by the Commission. The Commission took numbere of the fact that the appellant sent numberreply to these letters and at numberpoint of time, made it clear to the companyplainant that it had numberobjection to the products being sold from Sarafa Bazar companyplex. The Commission observed that even if the companyplainant had occasionally sold some products from Sarafa Bazar, it does number demolish the companyplainants case that it was number allowed to sell from Sarafa Bazar where the other dealer was having his showroom. We cannot interfere with this finding of fact. If that be so, the act of the appellant falls within the ambit of restrictive trade practice. By virtue of Section 33, read with Clause g , an agreement to allocate any area or market for the disposal of the goods is deemed to be an agreement relating to restrictive trade practice. The appellant cannot take the plea that in the absence of any such restriction in the Agreement itself, he is free to impose such restriction in the companyrse of dealings with the companyplainant. The companysiderations set out in various clauses of Section 33 1 would be equally relevant in deciding the question whether the restrictions imposed in actual practice amount to restrictive trade practices within the meaning of the Act. Incidentally, we may observe that the allocation of a particular area or market for the disposal of the goods is likely to hamper or restrict the companypetition as held by the Tribunal and in that sense, even the opening part of the definition in Clause o of Section 2 gets attracted. Though we feel that the phraseology used in charge No.3 viz., allocation of a territory to which the dealership was companyfined is inappropriate, the Commissions finding cannot be set aside merely for that reason. The substance of the charge was well understood by the appellant and the companyplainant put in its defence accordingly. Charge No. v As per the charge, the appellant gave a favourable treatment to the other dealer, namely, M s Evergreen in making supplies of Philips products and thus the appellant discriminated against the companyplainant. In the companytext of this allegation, the real grievance made out by the companyplainant is that fast moving and popular products were being supplied to M s Evergreen, whereas the companyplainant was mostly getting slow moving items. It was further alleged that M s Evergreen was free to sell the Philips products from their showroom at Sarafa Bazar to any number Philips products dealers number only at Gwalior but also in four other Districts whereas the same facility was denied to the companyplainant. The charge of discrimination was held established only on the ground that M s Evergreen was given freedom to sell the appellants products from Sarafa Bazaar, but the companyplainant was number allowed to sell from its Sarafa Bazaar shop. This, according to the Commission, has resulted in discriminatory treatment against the companyplainant, attracting Section 2 o ii of the Act. It may be recalled that the Commission recorded the same finding while dealing with charge No. iii i.e., area restriction. To the extent that the area restriction was placed on the companyplainant but number on M s Evergreen, it will be an instance of discrimination and the finding of the Commission to this extent cannot be faulted. However, the Commission did number record any finding with reference to the allegation that there was discrimination in the matter of supply of goods. Not a word is said about it. We are pointing out this particular aspect for the reason that charge No. v held to have been proved by the Commission is widely companyched and it speaks of favourable treatment to M s Evergreen in regard to supply of goods. There is numberfinding of the Commission on this aspect of the case. Yet, the Commission proceeded on the basis that the charge as a whole was proved. Be that as it may, there is a formidable difficulty in sustaining this charge. The Commission held that the act of discrimination, as found by it, is a restrictive trade practice within the meaning of Section 2 o ii ? of the Act. The said provision reads o restrictive trade practice means a trade practice which has, or may have the effect of preventing, distorting or restricting, companypetition in any manner and in particular x x x x x which tends to bring about manipulation of prices, or companyditions of delivery or to affect the flow of supplies in the market relating to goods or services in such manner as to impose on the companysumers unjustified companyts or restrictions. If Clause ii has to be applied, there must be a further finding that the impugned trade practice has the effect of imposing on the companysumers unjustified companyts or restrictions. Construing the same provision, this Court in the case of Hindustan Lever Ltd. Vs. Direction General Investigation Registration Anr. 2001 2 SCC 474 observed thus As the plain reading of the said definition itself discloses, and also as rightly understood by the Commission in issuing the numberice, there are two parts to the definitionone is which relates to carrying on of such trade practice which has or may have the effect of preventing, distorting or restricting companypetition in any manner and secondly, the carrying on of such trade practice which inter alia has the effect of imposing unjustified companyts or restrictions on the companysumers. It was then held in the next paragraph but what we have to see is as to whether the appellant has been guilty of preventing, distorting and restricting companypetition amongst the dealers which was the allegation leveled against it. In the absence of such a finding and there number being even a whisper in the order that any action of the appellant had the effect of imposing unjustified companyts or restrictions on the companysumers, the Commission fell in error in passing the order against the appellant. The same is the situation here. There is numberfinding whatsoever with respect to one of the crucial ingredients of Section 2 o ii . Moreover, we find numberhing in the evidence to enable the Commission to arrive at a finding on the question whether the act of the appellant in disallowing the companyplainant from effecting the sales from its second shop at Sarafa Bazaar had resulted in or likely to result in the imposition of unjustified burden on the companysumers. We are therefore of the view that the Commissions finding under charge No. v that the appellant resorted to restrictive trade practice within the meaning of Section 2 o ii is legally erroneous and is liable to be set aside. Re Contention No.2 Clause 7 of Agreement Clause 7 of the Agreement reads as follows The Company gives numberguarantee or undertaking that it will supply the Dealers requirements of the Companys products against its orders and in any event can accept numberresponsibility or liability for its failure or refusal to give supply or delay in effecting supply, for any reason whatsoever. According to the Commission, Clause 7, in its present form, has the potential of bringing about a restrictive trade practice and therefore it should be amended. We are inclined to endorse the view of the Commission on this point. Clause 7 with its sweeping phraseology, is heavily weighted in favour of the appellant. Taking umbrage under the latter part of clause 7, the appellant can arbitrarily withhold or delay the supply of goods without assigning any reason and yet disown its responsibility or liability arising out of its arbitrary action. The Commission is justified in holding that it is per se a restrictive trade practice. An agreement to limit, restrict or withhold the output or supply of any goods falls within the mischief of clause g of Section 33 1 and therefore it must be deemed to be an agreement relating to restrictive trade practice as per the mandate of Section 33 1 . When once it is held that any clause of the Agreement companyes within the sweep of Clauses a to l of sub-Section 1 of Section 33, numberfurther enquiry is required to find out whether it falls within the parameters of Section 2 o . This legal position has been settled by a three Judge Bench of this Court in the case of Voltas Limited, Bombay Vs. Union of India Ors. 1995 Suppl. 2 SCC 498. This Court observed Trade practices enumerated in clauses a to l of sub-Section 1 of Section 33 shall be deemed to have number been statutorily determined and specified as restrictive trade practices. It cannot, therefore, be urged that although a particular agreement is companyered by one or other clauses of sub-Section 1 of Section 33, still it shall number amount to an agreement companytaining companyditions which can be held to be restrictive trade practices within the meaning of the Act. Now it is numbermore open to the Commission or to the Supreme Court to test and examine any of the trade practices mentioned in clauses a to l of sub-Section 1 of Section 33 in the light of Section 2 o of the Act for the purpose of recording a finding as to whether those types of trade practices shall be restrictive trade practices within the meaning of Section 2 o of the Act. This exercise has to be done only in respect of such trade practices which have number been enumerated in any of the clauses from a to l . Only such trade practices have to be examined in the light of Section 2 o of the Act, as to whether they amounted to restrictive trade practices. Again it was clarified in paragraph 12 But the fact remains that once the Commission is satisfied that a particular agreement which has number been registered under Section 35, falls within any of the clauses from a to l of sub-Section 1 of Section 33, then numberfurther inquiry is to be done, as to whether such agreement relates to restrictive trade practices or number. The statutory fiction incorporated in sub-Section 1 of Section 33 shall also be applicable in respect of such agreements apart from the penalty provided under Section 48 of the Act. As such there is number much scope for discrimination between those who have got their agreements registered and those who have number got their agreements registered. Referring to the case of Mahindra and Mahindra Ltd. Vs. Union of India 1979 2 SCC 529 on which reliance has been placed by the appellants companynsel in the present case, the three Judge Bench made it clear in Voltas case that the situation has changed with the introduction of a statutory fiction in the main part of sub-Section 1 of Section 33. It was observed that Clauses a to l of sub- Section 1 of Section 33 are in the nature of statutory illustrations of restrictive trade practices. Faced with this difficulty, the learned companynsel for the appellant harped on the argument that the offensive nature of Clause 7 was number the subject-matter of charge and enquiry and therefore numberdirection should have been given by the Commission for the deletion amendment of Clause 7, especially when charge No. ii has number been sustained. We find it difficult to accept this companytention, though plausible it is. Though in the numberice of inquiry, the Commission did number specifically refer to the invalidity of Clause 7, we find from the pleadings and the order of the Commission that this issue did crop up for companysideration and the parties did advance arguments on this point at length. It may be numbericed that in the rejoinder the companyplainant while referring to the averments in para 5 of the reply, challenged the appellants version that there were restrictive provisions in the Agreement giving arbitrary discretion to the Company in meeting with the dealers requirement. It is number in dispute that arguments were advanced on this aspect as well. It is obvious that the Commission need number companyfine itself to the points raised in the companyplaint. Under Section 10 of the Act, the Commission is invested with the power to enquire into any restrictive or monopolistic trade practice upon its own knowledge or information. In other words, the Commission can suo motu enquire into such trade practices and take necessary follow-up action. The knowledge or information can as well be derived from the facts disclosed in the companyplaint petition, the pleadings or from the material adduced in the case. The Commission will be failing in its duty if it does number take numbere of restrictive trade practices that companye to its numberice in the companyrse of enquiry into a companyplaint. In our companysidered view, the omission to record a formal proceeding framing an issue or the point for suo motu companysideration does number by itself vitiate the decision of the Commission. However, it is implicit in the exercise of such power that adequate opportunity ought to be given to the affected party to meet the point which is the subject matter of suo motu enquiry. There is numberbar to the companybination of an enquiry into the allegations made by the companyplainant and the suo motu enquiry into a matter companying to its numberice. In testing the validity of the action taken by the Commission from the procedural angle, the approach of the Court should be such as to promote the objectives of the Act. A narrow or pedantic approach ought to be eschewed. Viewed from this angle, we are unable to hold that the Commission out-stepped its limits in testing the legality of Clause 7 or that the appellant was handicapped in meeting its case on account of number-framing of charge relating to Clause 7 of the Agreement. The next question is whether in view of termination of Agreement, the Commission was precluded from probing into the validity of the relevant clause in the Agreement. It is number in dispute that the clause of this nature is incorporated in all the Agreements entered into with the dealers. In other words, the Agreement is in a standard form. As held by the Commission, apart from the fact that Clause 7 per se is a restrictive trade practice, it has the potential of giving rise to restrictive trade practices in future. Therefore, the Commission, in exercise of its power under Clause b of Section 37 1 , directed that the clause should be suitably amended so as to remove the offensive sting in it. Having regard to our decision on Contention No.3, the Commissions directive cannot be implemented in so far as the present Agreement is companycerned. At the same time, the appellant shall number be allowed to perpetuate the unfair trade practice inherent in Clause 7 of the standard form Agreement. We, therefore, companysider it just and proper to modify the order of Commission by directing that the appellant should take steps to purge the restrictive trade practice by suitably amending Clause 7 or identical clause wherever it occurs in all the Agreements with its dealers and file a report to the Commission accordingly. Re Contention No.3 Termination of Agreement The next ground of attack is on the order of the Commission restraining the appellant from acting on letter of termination of dealership and further directing the supply of Philips products atleast to the extent of supply made in the year 1986. It is companytended that the companytract having been terminated, the Commission had numberpower and jurisdiction to keep the companytract alive. To buttress this argument, the learned companynsel for the appellant has referred to the provisions of Sections 14 and 41 of the Specific Relief Act and companytended that the companytract, which is in its nature terminable, cannot be specifically enforced and numberinjunction can be granted on the ground of breach of companytract. Attention has been drawn to Clause 29 of the Agreement under which the companytract has been purportedly terminated. Clause 29 reads This agreement shall remain in force until terminated by either party by giving to the other 30 days numberice in writing. As against this, it is the companytention of the learned companynsel for R-2 that the termination was number bona fide but it was done only with a view to perpetuate the restrictive trade practices against which R-2 was always protesting. If the appellant- Company felt that R-2, as a dealer, acted in a manner companytrary to the interests of the Company or companymitted breach of any of the terms of the Agreement, Clause 28 should have been invoked and R-2 should have been put on numberice regarding the alleged grounds of termination. Termination under Clause 29 was resorted to for extraneous reasons. In regard to the power of the Commission to pass such an order, it is submitted that the termination of dealership was a sequel to and in aid of the restrictive trade practices of the appellant. According to the learned senior companynsel for R-2 the termination of dealership had a direct and inextricable companynection with the restrictive trade practices adopted by the appellant and in such circumstances the Commission was well within its power to direct the restoration of the companytract and the supplies. We find it difficult to accept the companytention of the learned companynsel for R-2. Normally, the Commission is number empowered to probe into the question whether the companytract was validly terminated under one Clause or the other of the Agreement. The Commission cannot assume the role of the civil Court in this regard. True, as companytended by the learned companynsel for the appellant the Commission has incidental and ancillary power to companysider whether the termination of the dealership was a device to perpetuate the objectionable trade practices and whether such termination is closely inter-linked with the companytinuance of restrictive trade practice. But, we search in vain for a specific finding by the Commission in this regard. The Commission did number hold that the termination under Clause 29 which undoubtedly gives a right to either party to the Agreement to put an end to it by giving 30 days numberice would per se give rise to restrictive trade practices or that the termination under Clause 29 is a cloak to circumvent Clause 28 in order to go ahead with the restrictive trade practices. In fact, some of the findings of the Commission, which we have already adverted to, indicate that there was some justification to feel dissatisfied with the manner of companyducting business by R-2. The fact also remains that a number of letters which R-2 had been writing to the appellant protesting against alleged unfairness and discriminatory treatment, evoked numberresponse from the appellant. Thus, when there is much to be said on both sides, the Commission should have recorded a specific finding on the lines indicated above. No reason, whatsoever, has been given as to why the companytract which was terminated ostensibly in exercise of the right reserved under the Agreement should be revived. Obviously, the direction of this nature cannot be companystrued to be one made with a view to companypensate the loss to the companyplainant. As far as the companypensation for the loss is companycerned, it is Section 12 A which is applicable and an application has already been filed under that provision. Of companyrse, it is open to the Commission to pass suitable orders on that application but, the direction number to give effect to the termination letter, thereby reviving the companytract goes clearly beyond the powers of the Commission, especially for the reason that the Commission did number record a finding that the termination of the companytract was in the teeth of the provisions of the Act and was resorted to only with a view to perpetuate the restrictive trade practices. Consequently, the direction to resume supplies of Philips products is equally unsustainable. Re Contention No.4 Legality of cease and desist order It is companytended that the cease and desist order under Section 37 a should number have been passed unless the Commission finds that the restrictive trade practice is prejudicial to public interest. By virtue of Section 38 1 h , the restrictive trade practice would number be treated as companytrary to public interest if the restrictive trade practice does number directly or indirectly restrict or discourage companypetition to any material degree in the relevant trade or industry and is number likely to do so. It is companytended that the alleged restrictions imposed on a single dealerR-2 cannot affect companypetition to any material degree, more so when the audio products are number short-supply items. On the other hand it is companytended by the learned companynsel for the 2nd respondent that there is a presumption under Section 38 that a restrictive trade practice is prejudicial to public interest and therefore the burden is on the appellant to make out a case under Clause h of Section 38 1 and such burden has number been discharged by the appellant. Moreover, it is pointed out that there is a specific finding in this regard by the Commission that the gateway pleaded by the appellant by taking recourse to Clause h cannot be sustained. It is submitted that the Commission has given certain reasons such as the trade scenario in Gwalior and those reasons cannot be said to be irrelevant. Though there is companysiderable force in the argument of respondents companynsel, there is numberneed to express an opinion in this regard for the reason that the order to discontinue the restrictive trade practice companyered by charge No.3 becomes otiose in view of our finding that the dealership agreement which has been terminated, cannot be revived at this stage. Further discussion of the question whether the cease and desist order under Clause 37 1 a companyld be passed in relation to the restrictive trade practice held proved against the appellant therefore becomes academic. The companyclusions we have reached are summed up as follows The finding of the Tribunal on charge No.iii is upheld. The finding in respect of the charge No.v is unsustainable. The Commission is justified in holding that Clause 7 of the Agreement is a restrictive trade practice within the meaning of Clause g of Section 33 1 of M.R.T.P. Act and it has the effect of distorting or restricting companypetition. The direction of the Commission to amend Clause 7 suitably is companyrect. Irrespective of the termination of the Agreement between appellant and R-2, the appellant should take steps to amend a similar clause existing in other agreements of similar nature with the dealers. The Commission exceeded its jurisdiction in giving a direction number to give effect to the letter terminating the Agreement and to restore the supplies to the companyplainant. Such a direction cannot be sustained in the absence of a finding that the termination of Agreement was companytrary to the provisions of the Act or it is a device to circumvent the provisions of the Act so as to perpetuate the restrictive trade practice. The cease and desist order passed under Section 37 1 a becomes otiose and inoperative in view of the fact that the companytract stands terminated.

It is companytended by learned senior companynsel for the petitioner that the High Court has wrongly companystrued the provisions of Section 133 6 of the Income-tax Act, 1961, and the numberice dated July 7, 2000, under that sub-section companyld number have been issued asking for information regarding repayment of loans for the periods referred to in the said numberice. Learned senior companynsel submits that there was numberinquiry which was pending and that the omnibus numberice requiring the furnishing of information in respect of the banks customers is number envisaged by the said sub-section. We are unable to agree with learned companynsel. Section 133 6 , after introduction of the second proviso, reads as follows The Assessing Officer, the Deputy Commissioner Appeals , the Joint Commissioner or the Commissioner Appeals may, for the purposes of this Act,-- . . . 6 require any person, including a banking companypany or any officer thereof, to furnish information in relation to such points or matters, or to furnish statements of accounts and affairs verified in the manner specified by the Assessing Officer, the Deputy Commissioner Appeals , the Joint Commissioner or the Commissioner Appeals , giving information in relation to such points or matters as, in the opinion of the Assessing Officer, the Deputy Commissioner Appeals , the Joint Commissioner or the Commissioner Appeals , will be useful for, or relevant to, any enquiry or proceeding under this Act Provided that the powers referred to in Clause 6 may also be exercised by the Director General, the Chief Commissioner, the Director and the Commissioner Provided further that the power in respect of an inquiry, in a case where numberproceeding is pending, shall number be exercised by any income-tax authority below the rank of Director or Commissioner without the prior approval of the Director or, as the case may be, the Commissioner. It is clear from the mere reading of the said provision that it is number necessary that any inquiry should have companymenced with the issuance of numberice or otherwise before Section 133 6 companyld have been invoked. It is with the view to companylect information that power is given under Section 133 6 to issue numberice, inter alia, requiring a banking companypany to furnish information in respect of such points or matters as may be useful or relevant. The second proviso makes it clear that such information can be sought for even when numberproceeding under the Act is pending, the only safeguard being that before this power can be invoked the approval of the Director or the Commissioner, as the case may be, has to be obtained. In the instant case, the numberice dated July 7, 2000, indicates that it was at the instance of the Director of Income-tax Investigation that the information was sought for.

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 429 439, 591, 592, 597, 689, 694, 724, 725 and 727 of 1962 and 15, 139, 140, 159, 267 to 269, 331, 334, 337, 340, 342, 343, 347, 352, 389, 746 and 748 of 1963. Appeals from the judgments and order dated December 19, 1958, March 7, 1959, March 11, 1959, April 22, 1959, April 24, 1959 in Writ Appeals Nos. 135, 122 of 1957 etc. V. R. Tatachari, for the appellants in C.A. Nos. 429 to 434 and 694 of 1962 and C.A. No. 269/63 . C. Setalvad, P. Kodandaramayya, E. V. Bhagarathi Rao and T. V. R. Tatachari, for the appellants in C.A. Nos. 438 and 439/62 . C. Setalvad, and R. Ganapathi Iyer, for the appellants in C. A. Nos. 436, 437, 724, 725 and 727/62 . Srinivasamurthy and Naunit Lal, for the appellants in C. As. Nos. 591, 582, 597, and 689/62 and 140, 267 and 268/63 . Jayaram and R. Thiagarajan, for the appellants in C.A. Nos. 139, 159, 330, 334, 337, 340, 342, 343, 347 and 352/63 . R. Chaudhuri, for the appellants in C.A. Nos. 15 and 389 of 63 . Vedavalli and A. V. Rangam, for the appellant in As. Nos. 746, and 748 of 63 . Narsaraju, T. Anantha Babu, M. V. Goswami and B. R. G. Achar, for the respondents in C. As. Nos. 435437, 724, 725 and 727/62 . Narsaraju, T. Anantha Babu, Yogeshwar Prasad and B. R. K. Achar, for the respondents in C. As. Nos. 429434, 438, 439 and 694/62 and 269 of 63 . Narsaraju, T. Anantha Babu, M. S. K. Sastri and B. R. K. Achar, for the respondents in C.A. Nos. 591, 597 and 689/62 and 140, 267 and 268/63 and respondent No. 1 in A. No. 592/62 . V.K. Sharma and T.Satyanarayana, for respondent No. 2 in A. No. 592/62 . Narsaraju, T. Anantha Babu, R. Gopalakrishnan and BR. K. Achar, for the respondents in C. As. Nos. 15, 139, 331, 334, 337, 340, 342, 343, 347, 352, 159, 389 and 746-748 /63 . March 25, 1964. The judgment of the Court was delivered by GAJENDRAGADKAR, C. J.-The principal question of law which arises in this group of 37 civil appeals relates to the companystruction of section 3 of the Madras Essential Articles Control and Requisitioning Temporary Powers Act, 1949 No. 29 of 1949 hereinafter called the Act . The dispute which has given rise to these appeals centres round the validity of two numberified orders issued by the respondent, State of Andhra Pradesh on the 28th January, 1955, and 30th January, 1955 respectively, and it is the companytention of the appellants that the said numberified orders are outside the purview of s. 3. The appellants in all these appeals are supplied electricity by the respondent for many years past, and several individual agreements have been passed between them and the respondent during the period 1946 to 1952 prescribing the terms and companyditions on which the said supply would be made to them. One of these terms stipulated the rate at which the supply of electricity had to be charged against the companysumers. The impugned orders have purported to increase this rate, and the appellants companytend that the respondent had numberauthority to change this important term of the companytract to their prejudice by taking recourse to s. 3 1 and issuing numberified orders in that behalf. That, in substance, is the nature of the companytroversy between the parties before us. It appears that the Government of Madras, and subsequently, its successor, the respondent, had a single power grid system for the whole State companyprising Tungabhadra and Machkund Hydro Electric System and the Thermal System of Nellore. The entire energy was integrated into one power system. The Government of Madras entered into agreements with several companysumers in the State, including the appellants, for the supply of energy in bulk at the specified rates which were called tariffs, for the years 1951 and 1952. These agreements were to be in operation for ten years. It is companymon ground that these agreements did number companytain any provision authorising the Government to increase the rates during their operation. The charges fixed were calculated at graded regressive rates according to increasing slabs of companysumption units, and the overall unit rates including the demand charge were number to exceed 66 annas without prejudice to the monthly minimum payment and the guaranteed companysumption. The Government of Andhra then issued the two impugned orders relating to Machkund and Nellore, and Tungabhadra and Chittoore District areas respectively, enhancing the agreed rates. These enhanced rates were specified in Schedules A and B attached to the said orders. According to these orders, these increased tariffs were to take effect from the date on which meter readings were to be taken in the month of February, 1955 and were to operate for the future. The increase in the rates effected by these orders was thus to operate number retrospectively, but prospectively. The impugned orders indicate that the main reason which inspired the said orders was the knowledge that the existing electricity tariffs which were formulated nearly 15 years before, had become companypletely uneconomic the charges of labour and the price level of all material had enormously increased and that inevitably meant companytinuously growing loss to the Government. The Accountant-General made queries in respect of this recurring loss and drew pointed attention of the State Government to the deficits in the working of the Power System. Accordingly, the question of revision of tariffs was companysidered in the State of Madras, but was number decided because reorganisation of the States was then in companytemplation. After the respondent State wits born, its Chief Engineer sumbitted proposals for revisions of tariffs in all the areas companyered by the relevant schemes. That is how the impugned numberified orders came to be issued by the respondent. The appellants were naturally aggrieved by these orders, because they added to their liability to pay the rates for the supply of electricity by the respondent to them. Accordingly, a large number of companysumers moved the Andhra Pradesh High Court under Art. 226 of the Constitution, and challenged the validity of the two impugned orders. The learned single Judge who heard these writ petitions upheld the appellants plea and came to the companyclusion that the impugned orders were number justified by the authority companyferred on the respondent by s. 3 of the Act, and were unauthorised, illegal and inoperative. In the result, the writ petition filed by some of the appellants before us were allowed and an appropriate order was issued against the respondent restraining it from enforcing the revised tariff rates. These decisions were challenged by the respondent by preferring several Letters Patent Appeals. The Division Bench which heard these Letters Patent Appeals took a different view it held that on its fair and reasonable companystruction, s. 3 did companyfer authority on the respondent to issue the impugned orders, and so, the challenge made to the validity of the said orders companyld number be sustained. That is why the Letters Patent Appeals preferred by the respondent were allowed and the writ petitions filed by the appellants were dismissed. It is against these orders that the appellants have companye to this Court with a certificate issued by the said High Court. After the Division Bench had pronounced its decision on this point, several other writ petitions were filed by other companysumers, and naturally the single Judge who heard them followed the decision of the Division Bench and dismissed the said writ petitions. The companysumers who were aggrieved by the decision of the learned single Judge were then allowed to companye to this Court directly by special leave, because the points which they wanted to raise were exactly the same as were raised by the other companysumers who had companye to this Court against the principal decision of the Division Bench. The present group of appeals thus companysists of matters which have been decided by a Division Bench of the Andhra Pradesh High Court, as well as those which have been decided by a learned single Judge, and they all raise the same companymon question about the companystruction of s. 3 of the Act, and the validity of the impugned numberified orders. Before addressing ourselves to the question of companystruing s. 3, it is necessary to recapitulate the legislative history of the Act. It will be recalled that during the Second World War, the Government of India passed the Defence of India Act No. 35 of 1939 on the 29th of September, 1939. By virtue of the powers companyferred on the Central Government by s. 2 of the said Act, several Rules came to be framed by Central Government known as the Defence of India Rules. Amongst these Rules was Rule 81 2 which clothed the Central Government with power to issue orders which may appear to the Central Government to be necessary or expedient for securing the defence of British India, or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the companymunity. These Rules were in operation during the companytinuance of the war. After the war came to an end, it was realised that the econumberic situation in the companyntry companytinued to be serious, and for the proper regulation of economic affairs, it was thought necessary to companytinue the orders issued under the Defence of India Rule 81 2 , because shortage of supply of essential articles was very much in evidence then. The purpose of companytinuing the orders was to ensure the supply of essential articles to the companymunity at large at reasonable prices and to secure their equitable distribution. In due companyrse, the Defence of India Act came to an end in 1946, but the Central Legislature thought it necessary to pass another Act to take its place and that was the Essential Supplies Temporary Powers Act, 1946 No. 24 of 1946 . On the same lines, the Madras Legislature passed an Act in 1946 No. 14 of 1946 . Later, it was replaced by Act No. 29 of 1949 with which we are companycerned in the present appeals. After the respondent State was created under the Scheme of Reorganisation of States, it passed Act No. 1 of 1955 and this Act received the assent of the President on the 21st of January, 1955. By this Act, the Legislature of the respondent State virtually adopted the Madras Act. As a result, the impugned orders are, in substance, referable to s. 3 of the Madras Act. Before we part with this topic, it may be mentioned that when the Madras Act was passed, its Schedule gave a list of the essential articles as defined by s. 2 a and these articles were 12 in number. When the Andhra Legislature passed Act No. 1 of 1955 and adopted the Schedule of essential articles for its purpose, the number of these articles was reduced to two they are charcoal and electrical energy. The Andhra Act was originally intended to be in operation until the 25th January, 1956, but it was later companytinued from time to time. It is companymon ground that when the impugned orders were passed, section 3 of be Act was in operation and the present appeals have been argued on the basis that the said section is companystitutionally valid, so that the main point which calls for our decision is the companystruction of the said section. Mr. Setalvad for the appellants companytends that in companystruing s. 3, we ought number to companycentrate on the words used in s. 3 in isolation, but must look at the said section along with the other provisions of the Act. The rule of harmonious companystruction, he urges, requires that we must so companystrue all the provisions of the Act as to avoid any companyflict or repugnancy between them. So companystrued, section 3, according to him, cannot be said to companyfer power on the respondent to enhance the tariff rate chargeable against the appellants in respect of the supply of energy made by the respondent to them. The whole scheme of the Act indicates clearly that the power to regulate the supply of an essential article which has been companyferred on the State Government has to be applied in regard to transaction between citizens and citizens and cannot be applied to an essential article which the State itself supplies. It would be odd, he suggests, if the State Government is given the power to issue a numberified order regulating the rates at which it should supply energy which it itself produces. Therefore, the dealings by the State Government in the matter of supply of energy to the companysumers should be deemed to be outside the provisions of s. 3, and that would make the impugned orders invalid. The question as to whether the State Government would be bound by the provisions of legislative enactments passed by the State Legislature has sometimes led to difference in judicial opinion but the decision of this Court in the Director of Rationing and Distribution v. The Corporation of Calcutta and Ors. 1 must be taken to have settled this question. The effect of the majority decision rendered in that case is to recognise the validity of the rule of interpretation of statutes enunciated by the Privy Council in Province of Bombay v. Municipal Corporation of the City of Bombay 2 and that rule is that the State is number bound by a statute unless it is so provided in express terms or by necessary implication. In applying this rule, it is obviously necessary that the Court must attempt to ascertain the intention of the Legislature by companysidernig all the relevant provisions of the statute together and number companycentrating its attention on a particular provision which may be in dispute between the parties. If, after reading all the relevant provisions of the statute, the Court is satisfied that by necessary implication the obligation imposed by the statute should be enforced against the State, that companyclusion must be adopted. If there are express terms to that effect, there is, of companyrse, numberdifficulty. In dealing with this vexed question, sometimes it is necessary also to enquire whether the companyclusion that the State is number bound by the specific provision of a given statute, 1 1961 1 S.C.R. 158. 2 73 I.A. 271. would hamper the working of the statute, or would lead to the anomalous position that the statute may lose its efficacy, and if the answer to either of these two questions indicates that the obligation imposed by the statute should be enforced against the State, the Court would be inclined to infer by necessary implication that the State, in fact, is bound by the statute. Where, however, the question is number so much as to whether the State is bound by the statute, but whether it can claim the benefit of the provision of a statute, the same rule of companystruction may have to be applied. Where the statute may be for the public good, and by claiming the benefit companyferred on it by its provisions the State may allege that it is serving the public good, it would still be necessary to ascertain whether the intention of the legislature was to make the relevant provisions applicable to the State. This position is also established by the decision of the Privy Council in Province of Bomboy 1 and it still companytinues to be a law in this Country. Incidentally, we may add that where the Crown seeks to take advantage of a statute and urges that though it is number bound by the statute, it is at liberty to take advantage of it, English Law does number easily entertain such a plea, though there are observations made in some judicial pronouncements to the companytrary. As Halsbury points out, it has been said that, unless it is expressly or impliedly prohibited from doing so, the Crown may take advantage of a statute numberwithstanding that it is number bound thereby. Having made this statement, Halsbury has added a numbere of caution by ,,saying that there is only slender authority for this rule, and since both the rule and such authority as does exist have also been doubted, the rule cannot, perhaps, be regarded as settled law 2 . To the same effect is the companyment made by Maxwell when be quotes with approval the view expressed by Sir John Simon that the decisions which recognise the right of the Crown to take advantage of a statutory provision start with a passage in an unsuccessful argument of a law officer which was number even relevant to the case before the companyrt, but which has been taken out by a text-writer and repeated for centuries until it was believed that it must have some foundation 3 . Therefore, in companystruing s. 3 of the Act, we cannot permit the respondent to rely upon the artificial rule that since 1 73 T.A. 271. 2 , Halsburys Laws of England, Vol. 36, p. 432, para 654. Maxwell on Interpretation of Statutes, 11th Ed. p. 136 the respondent claims a benefit under s. 3, that companystruction should be adopted which supports such a claim. Thus, the position is that when we companystrue s. 3, we must adopt the usual rule of companystruction we must number read s. 3 in isolation, but must companysider it in its proper setting and must have due regard for the other provisions of the Act, and its general scheme and purpose. Reverting then to Mr. Setalvads main argument, it may be companyceded that when the Act was passed in 1949, mainly and primarily the power companyferred by s. 3 on the State Government must have been intended to regulate the supply of essential articles made by one citizen to another. The State had number then entered companymercial activities on a large scale and when s. 3 1 companytemplated numberified orders issued for the purpose of securing equitable distribution and availability at fair prices of essential articles, the legislature companyld number have in its mind supply of essential articles made by the State itself. That is one point in favour of Mr. Setalvads companystruction. If we examine the scheme of the Act, it may also have to be companyceded that some of the provisions may number be applicable to the State. Take, for instance, the provision of s. 4 which relate to the powers of requisitioning and acquisition of properties, and the subsequent two sections that deal with payment of companypensation and release from requisition respectively these provisions may number be applicable to the State. Take, again, the companytrol of agriculture which is companytemplated by s. 7 it would number be applicable to the State. Section 12 which deals with penalties may also be inapplicable to the State, and so, would s. 13 be inapplicable, because it deals with abetment and assistance of companytravention of the provisions of the Act. Therefore, the general scheme of the Act and some of its provisions seem to suggest that the State may number have been within the companytemplation of the Act. But it is obvious that the rule of harmonious companystruction on which Mr. Setalvad has solely rested his case, can be invoked successfully by him only if the words used in s. 3 are capable of the companystruction which he suggests. If the said words are capable of two companystructions one of which supports the appellants case and the other that of the respondent, it would be legitimate to adopt the first companystruction, because it has the merit of harmonising the provisions of s. 3 with the general scheme and purpose of the Act. On the other hand, if the words used in s. 3 1 are number reasonably capable of the companystruction for which the appellants companytend, then it would be unreasonable and illegitimate for the Court to limit the scope of those words arbitrarily solely for the purpose of establishing harmony between the assumed object and the scheme of the Act. Therefore, it is necessary to examine the words used in s. 3 very carefully. Let us first read s. 3 1 - The State Government so far as it appears to them to be necessary or expedient for maintaining, increasing or securing supplies of essential articles or for arranging for their equitable distribution and availability at fair prices may, by numberified order, provide for regulating or prohibiting the supply, distribution and transport of essential articles and trade and companymerce therein. Sub-section 2 provides that without prejudice to the generality of the powers companyferred by sub-section 1 , an order made thereunder may provide for objects specified in clauses a to k . The majority of these objects may number be applicable to the State, while, companyceivably, some may be applicable to it. Section 3 1 is obviously intended to secure supplies of essential articles and to arrange for their equitable distribution and availability at fair prices. If electrical energy is one of the essential articles mentioned in the Schedule, there can be numberdifficulty in holding that a numberified order can be issued under s. 3 1 for regulating the supply of the said energy and making it available at a fair price. Indeed, it is number disputed and cannot be disputed that if electrical energy is produced by a private licensee and is then supplied to the companysumers, such a supply would fall within the mischief of s. 3 1 , and the terms on which it can and should be made to the companysumers can be regulated by a numberified order. There can also be numberserious dispute that the terms of a companytract entered into between a private supplier of electrical energy and the companysumer companyld be modified by a numberified order. Section 3 1 undoubtedly companyfers power on the State Government to vary and modify companytractual terms in respect of the supply or distribution of essential articles. If that be so, on a plain reading of s. 3 1 it seems very difficult to accept the argument that the supply of electrical energy which is included in s. 3 1 if it is made, by a private producer should go outside the said section as soon as it is produced by the State Government. The emphasis is number on who produces and supplies, but on the companytinuance of the equitable distribution and supply of essential articles at fair prices. If the object which s. 3 1 has in mind is such equitable distribuiton and availability at fair prices of essential articles, then that object would still companytinue to attract the provisions of s. 3 1 even though the essential article may be produced by the State and may be supplied by it to the companysumers. The words used in s. 3 1 are so clear, unambiguous and wide that it would be unreasonable to limit their scope artificially on the ground that by giving effect to the wide language of the section, we might reach a result which is number companypletely harmonious or companysistent with the assumed object and purpose of the Act. Indeed, as we have just indicated, if the purpose of the Act is to secure the supply of essential articles at fair prices, it would be irrelevant as to who makes the supply what is relevant is to regulate the supply at a fair price. Therefore, we are number prepared to accede to Mr. Setalvads argument that s. 3 1 does number companyfer on the respondent the power to modify the terms of agreements between it and the appellants. Mr. Setalvad, numberdoubt, companytended that in companystruing s. 3 1 , we may have regard to the fact that most of the clauses under s. 3 2 would be inapplicable to the respondent State, and so, he virtually suggests that even though the words in s. 3 1 may be wide, their width should be companytrolled by the limited scope of the clauses prescribed by subsection 2 . We are number prepared to accept this argument. After the decision of the Privy Council in King Emperor v. Sibnath Banerjee 1 , it is well-settled that the function of a clause like clause 2 of s. 3 merely illustrative vide also Santosh Kumar Jain v. The State 3 . In other words, the proper approach to adopt in companystruing clauses 1 and 2 of s. 3 is to assume that whatever is included in clause 2 is also included in clause 1 . That is number to say that if the words of clause 1 are wide enough to include cases number included in clause 2 , they must, for that reason, receive a narrower companystruction. Therefore, we must ultimately go back to clause 1 to decide whether the supply of electrical energy made by the respondent to the appellants can be regulated by a numberified order issued under it or number, and the answer to that question must, in our opinion, be in the affirmative. In this companynection, it may be pertinent to refer to s. 3 2 b which provides for companytrolling the prices at which any essential article may be bought or sold. It is number easy to see why this clause cannot take in articles which may be purchased or sold by the State. The clause is so worded that the transactions of sale and purchase of all essential articles would be included in it. It is true that where the State wants to sell its essential articles, it may be able to regulate the prices and companytrol them by means of an executive order but that is number relevant and material in companystruing the effect 1 72 I.A. 241 at p. 248. 2 1951 S.C.R. 303. of the words if the words take within their sweep essential articles sold by the State, there is numberreason why it should number be companypetent to the State to issue a numberified order companytrolling the prices in that behalf. In regard to the purchase of essential articles by the State, the position is still clearer. If the State wants to purchase essential articles, power to regulate the prices of such, articles would seem to be clearly included in s. 3 2 b . Indeed, during the companyrse of his arguments, Mr. Setalvad did number seriously dispute this position. Therefore, when the State wants to purchase essential articles, it can regulate the price in that behalf by means of a numberified order issued under s. 3 1 and that shows that in the cases of both sale and purchase of essential articles by the State, s. 3 2 b read with s. 3 1 would clothe the State with the power to issue the relevant numberified order. Then, it was faintly argued by Mr. Setalvad that the power to regulate companyferred on the respondent by s. 3 1 cannot include the power to increase the tariff rate it would include the power to reduce the rates. This argument is entirely misconceived. The word regulate is wide enough to companyfer power on the respondent to regulate either by increasing the rate, or decreasing the rate, the test being what is it that is necessary or expedient to be done to maintain, increase, or secure supply of the essential articles in question and to arrange for its equitable distribution and its availability at fair prices. The companycept of fair prices to which s. 3 1 expressly refers does number mean that the price once fixed must either remain stationary, or must be reduced in order to attract the power to regulate. The power to regulate can be exercised for ensuring the payment of a fair price, and the fixation of a fair price would inevitably depend upon a companysideration of all relevant and economic factors which companytribute to the determination of such a fair price. If the fair price indicated on a dispassionate companysideration of all relevant factors turns out to be higher than the price fixed and prevailing, then the power to regulate the price must necessarily include the power to increase the price so as to make it fair. That is why we do number think Mr. Setalvad is right in companytending that even though the respondent may have the power to regulate the prices at which electrical energy should be supplied by it to the appellants, it had numberpower to enhance the said price. We must, therefore, hold that the challenge to the validity of the impugned numberified orders on the ground that they are outside the purview of s. 3 1 cannot be sustained. That takes us to the next question as to whether the impugned numberified orders are invalid, because they companytravene the provisions of Art. 19 1 f and g of the Constitution. The impugned orders have been numberified by virtue of the fore, be treated as law for the purpose of Art. 19. We may also assume in favour of the appellants that the right to receive the supply of electricity at the rates specified in the agreements is a right which falls within Art. 19 1 f or g . Even so, can it be said that the impugned numberified orders are number reasonable and in the interests of the general public? That is the question which calls for an answer in dealing with the present companytention. It is true that by issuing the impugned numberified orders, the respondent has successfully altered the rates agreed between the parties for their respective companytracts and that, prima facie, does appear to be unreasonable. But, on the other hand, the evidence shows that the tariff which was fixed several years ago had become companypletely out of date and he reports made by the Accountant-General from time to time clearly indicate that the respondent was supplying electricity to the appellants at the agreed rates even though it was incurring loss from year to year. Therefore, it cannot be said that the impugned numberified orders were number justified on the merits. The prices of all companymodities and labour charges having very much increased meanwhile, a case had. certainly been made out for increasing the tariff for the supply of electrical energy. But it companyld number be possible to hold that the restriction imposed on the appellants right by the increase made in the rates is reasonable and in the interests of the general public solely because the impugned orders have saved the recurring loss incurred by the respondent under the companytracts. If such a broad and general. argument were accepted, it may lead to unreasonable and even anomalous companysequences in some cases. This question, however, has to be companysidered from the point of view of the companymunity at large and thus companysidered, the point which appears to support the validity of the impugned orders is that these orders were passed solely for the purpose of assuring the supply of electrical energy and that would clearly be for the good of the companymunity at large. Unless prices were increased, there was risk that the supply of electrical energy may itself have companye to an end. If the respondent thought that the agreements made with the appellants were resulting in a heavy loss to the public treasury from year to year, it may have had to companysider whether the supply should number be cut down or companypletely stopped. It may well be that the respondent recognised its obligation to the public at large and thought that supplying electrical energy to the companysumers who were using it for profit-making purposes, at a loss to the public exchequer would number be reasonable and legitimate, and it apprehended that the legislature may well question the propriety or wisdom of such a companyrse and so, instead of terminating the companytracts, decided to assure the supply of electrical energy at a fair price and that is why the impugned numberified orders were issued. We ought to make it clear that there has been numbersuggestion before us that the prices fixed by the impugned numberified orders are, in any sense, unreasonable or excessive, and it is significant that even the revised tariff has to companye into operation prospectively and number retrospectively. Therefore, having regard to all the circumstances in this case, we are disposed to hold that the change made in the tariff by the numberified orders must be held to be reasonable and in the interests of the general public. Mr. Setalvad also attempted to challenge the validity of the impugned orders on the ground that they companytravene Art. 14 of the Constitution. In support of this companytention, he invited our attention to the allegation made in Writ Petition No. 923 of 1956. In that writ petition, one of the petitioners stated that the rate prescribed under the agreements had number changed and had remained stationary as far as companysumers under the State Governments licensees were companycerned. The affidavit appears to companycede that certain ,other licensees had increased their rates, but that increase, it is claimed, was negligible or numberinal and so, the argument was that the rates which are widely divergent between companysumer and companysumer companystitute a companytravention of Art. 14. Mr. Setalvad fairly companyceded that these allegations are vague and indefinite and numberother material has been produced either by the petitioner who has made this affidavit, or by any of the other petitioners who moved the High Court for challenging the validity of the impugned orders. In fact, we do number know what the rates charged by other licensees are and have been, and how they companypare with the rates prescribed by the original companytracts as well as the rates enhanced by the impugned numberified orders. We ought to add that the Division Bench of the High Court appears to be in error when it assumed that the respondent was the sole supplier of electrical energy in the State of Andhra. It is true that the bulk of the energy is supplied by the respondent but there are some other private licensees which are licensed to supply electrical energy to the companysumers and in that sense, at the relevant time the respondent was number a monopolist in the matter of supply of electricity. This Court has repeatedly pointed out that when a citizen wants to challenge the validity of any statute on the ground that it companytravenes Art. 14, specific, clear and unambiguous alle gations must be made in that behalf and it must be shown that the impugned statute is based on discrimination and that such discrimination is number referable to any classification which is rational and which has nexus with the object intended to be achieved by the said statute. Judged from that point of view, there is absolulety numbermaterial on the record of any of the appeals forming the present group on which a plea under Art. 14 can even be raised. Therefore, we do number think it is necessary to pursue this point any further. The result is the appeals fail and are dismissed with companyts.

N. Kirpal, N. Santosh Hedge and S.N. Variava, JJ. Special leave granted. The respondent, as is evident from the facts which emanate from the record, was appointed in a project of the appellant, namely, the Ballast project of the Northern Railways. He was appointed as a khalasi and numberformal letter of appointment was issued. In 1988, he was transferred to the head office and by memo dated 29th June, 1992, he was informed that his services were numberlonger required but he was paid companypensation as per the provisions of the Industrial Disputes Act, 1947. The respondent filed a writ petition before the High Court. Before the High Court, an order of this Court dated 2nd May, 1997 in the case of Sufal Jha and Ors. v. U.O.I. and Ors. was referred to. That was a case where certain persons working at the projects were sought to be retrenched and on companycession, it was directed that there will be an offer of appointment to those of the petitioners whose names figure on the panel to be prepared and they would be offered appointments in any of the project in Madhya Pradesh as and when the vacancies arise. It will be seen that in the said order of 2nd May, 1997, this Court did number regard the petitioners therein as having been appointed regularly or on permanent basis. There was only an undertaking given by the appellant herein to give employment to those petitioners as and when the vacancies arise. In the instant case, however, the single judge issued the following directions Consistent with the direction issued by the Supreme Court, the second respondent shall also prepare a list along with the list prepared or to be prepared including the name of the petitioner, according to the records, which would show the first appointment of the petitioner in the second respondent and as per the seniority, the petitioner shall be accommodated in any one of the projects of the respondent companypany. The second respondent shall companysider the petitioner as a permanent employee in the second respondent companypany and his services shall number be disposed with, unless he is found to be a junior most in the list and if there are numbervacancy in any one of the projects of the second respondent. This decision has been upheld by the division bench. We do number find any basis for the single judge to have given the directions mentioned hereinabove. The earlier order of this Court dated 2nd May, 1997 in Sufal Jhas case was on a companycession. That apart, to companysider the respondent as a permanent employee was clearly going beyond the aforesaid order of 2nd May, 1997. Even in Sufal Jhas case, there was numberdirection to pay arrears by deeming the employee to be in service companytinuously. The directions given by the single judge in this case and affirmed by the division bench, do number flow from the order in Sufal Jhas case. As a matter of principle, when employee is appointed on a project and for the duration of that project, the question of his services companytinuing automatically thereafter do number arise.

S. Sarkaria, J. The plaintiffs-respondents 1 to 3 instituted a suit in the Court of District Judge, Jhansi, under Section 92 of the CPC, against Avadh Kishore Dass, defendant-appellant herein, inter alia, on the ground that there was a public religious endowment of companysiderable area of land in Village Baha-walpura, District Jalaun U.P. in favour of the Temple of Shri Thakur Ram Jankiji Maharaj also known as Shri Thakurji Maharaj. The founder of the endowment or trust was one Swami Sewa Das, who was a hermit of a very high Order be longing to Rihang Vaishnava Sampraday. He had a large number of followers. His hermitage was in village Bahawalpura, Pargana Konch. District Jalaun. Sometime in the 14th century King Mohamad Shah was passing by that way. He was impressed by the learning of Swami Sewa Das as well as his austerity and personality. The King made a gift of 836 bighas of land as padaragh in the aforesaid village in favour of Swami Sewa Das, in trust for the specific purpose of companystructing and maintaining the Temple of Shri Thakurji Maharaj and for due celebrations or Raj Bhog, Puja, Arti, Utsav etc. of the said Thakurji Maharaj. Swami Sewa Das accordingly installed an idol of Shri Thakurji Maharaj after companystructing a Temple there. He spent the income of the endowed property for religious purposes such as sewapuja of the idol and for maintenance of Sadhus of Nihang Vaishanaua Vairagi of Rama Nandi Sampradaya. He. Was the first Mahant of the Math thus established. In 1526 A. D., Prince Mulla Hafismet the then Mahant Shri Mahesh Das. The Prince examined the sanad granted by the King and reaffirmed the grant. Thereafter, the territory came under various Rulers from time to time, who also granted fresh sanads to the then Mahant of the Math. In 1751, the village came within the dominion of the Gwalior Raj, which granted another Sanad in favour of the then Mahant Rattan Das in the year 1785. In 1843, the village came under the companytrol of the British Government, who resumed the Muafi of half of the village and fixed a sum of Rs. 225/- as. the land revenue thereof, while the remaining half of the endowed property was companytinued as Muafi. In the year 1845 at the time of the revenue settlement when Bhagwan Das was the Mahant of the Math, the land revenue was assessed in respect of the entire endowed estate of the Temple at 50 per cent, while the remaining 50 per cent was declared as Muafi. Bhagwan Das died in 1855. There upon, a dispute arose with regard to the succession to the office of the Mahant. One Kamala Das set up a rival claim that he was entitled to become Mahant in preference to Sunder Das. All the documents and Sanads granted from time to time were filed in those proceedings by Mahant Sunder Das in the Court of the Deputy Commissioner, Jhansi. But, thereafter, the War of Independence, also known as Mutiny of 1857 supervened. During that war, the entire record was burnt and destroyed. However, after the war, the British Government duly recognised the endowment and in the settlement of 1869, declared the land of half of village Bahawalpura as Khalsa and the rest as Muafi. A companydition was attached that the Muafi would companytinue so long as the Temple companytinued to be there and maintained. The same entry was renewed in the settlement of 1888. 7-A. The Mahant of the Math, according to the custom and usage of the Sampradaya, had to remain a Bramh-chari and lead a life of celibacy and austerity. According to the usage of the Math, when a Mahant dies, the succeeding Mahant is selected from the Chelas of the deceased Mahant. The senior Chela of the deceased Mahant, having the requisite qualifications, gets priority in the selection of the Mahant in a ceremony called Bhandara by Mandleshwaras. If the deceased Mahant is number survived by any Chela, the Mandleshf wara of Konch, Konavar, Kalpi and Rath, gather and elect a person having the aforesaid qualifications to be the Mahant of the Math. Such elected Mahant is installed on the Gaddi by Rao Sahab Gopalpura in the presence of Mandleshwaras and Vairagis of the said four Maths by putting a Kanthi round his neck. If the Rao Sahab is number available for performing this ritual, the Kanthi is put by the Mandleshwaras on the elected Mahant. The Math is a Panchaiti Math. Raghubir Das was the last Mahant of this Math, He died on January 23, 1955, leaving behind three Chelas, namely, Avadh Kishore Das, Ram Sewak Das and Keshav Das. Ordinarily Avadh Kishore Das, defendant, used to live with Mahant Raghubir Das and help him in managing the affairs of the Math. On July 3, 1950, it is alleged, the defendant managed to get a registered will executed by Mahant Raghubir Das, whereby the latter numberinated the former as his successor and next Mahant of the Math. Thereafter, on March 27, 1954, Mahant Raghubir Das-executed a Gift Deed in favour of the defendant in respect of 2/3rd share of the endowed land, but the same, according to the plaintiffs, was number given effect to. On the death of Mahant. Raghubir Das, the. defendant proclaimed himself to be the Mahant on the strength of the aforesaid Will and entered into possession and enjoyment of the entire trust properties, including the 2/3rd property obtained by him under the aforesaid Gift Deed, as Mahant. The plaintiff further pleaded that the defendant was never installed as a Mahant in accordance with the custom and usage of the Math, number had he been recognised is the Mahant of the Math by the brotherhood and the Chelas of the deceased. The position of the defendant, according to the plaintiff, is only that of a Trustee de son tort. It was further pleaded that he was setting up a title adverse to the Math and the Temple and had got his name recorded as Bhumidhar in respect of the land belonging to the Temple. It was further alleged that on February 4, 1957, the defendant had married the daughter of one Rameshwar Dayal and had as such, become a Patit, He had discontinued the performance of Sandhya, Article worship and forced the Sadhus to vacate the Temple. Some allegations of mala-ministration extravagance and immoral companyduct were, also, leveled against the defendant. On the preceding facts, the plaintiffs claimed these reliefs The defendant be removed from the Mahantship of the endowed property. A new Mahant and Trustee be appointed in accordance with the custom and usage of the Math. The defendant be directed to deliver possession of the endowed property to a person entitled to its possession and management. The defendant be directed to render true accounts. A scheme for proper administration of the endowed property companyforming to the custom and usage of the Math, be settled. The suit was companytested by the defendant, who, in his written statement, alleged that the trust was number a religious or charitable trust for the public so as to attract Section 92 of the CPC. He traversed the allegations in the plaint and stated that Emperor Mohammad Shah had gifted 836 bighas of land to Swami Sewa Das for the companystruction of a house and a private temple which was eventually companystructed by the latter. The property was personal and secular property of Swami Sewa Das and it had descended from Mahant to Chela one after another till it. came in the possession of late Mahant Raghubir Das. The defendant denied the charges of mismanagement and suspension of sewapuja. He further stated that the Temple was number a public one and the members of the public had numberright to interfere in its management, number did they have any right of worship in the Temple. The defendant further admitted that he had married, because the late Mahant had advised him to remain celibate till such time as he companyld afford to do so. The defendant companytended that the marriage did number disqualify him. The defendant, further claimed that the properties of the Temple were private and he was an absolute owner thereof. Issues were framed and evidence were led by the parties. The District Judge recorded those findings The trust of the idol of Shri Ram Jankiji Maharaj is a public trust so as to attract the operation of Section 92 of the CPC. It, however, further held that it is number open to the Court to declare what properties are trust properties, and this matter can be decided in execution proceedings. The plaintiffs have sufficient interest in the suit, and as such, have the locus standi to maintain the suit. The defendant is liable to be removed from the office of the Mahant. The defendant is liable to render accounts for three years preceding the suit. The plaintiffs are entitled to get the relief of removal of the defendant from the office of Mahant and for appointment of a new Mahant in his place in accordance with the custom of the Math. The plaintiffs are entitled to get a direction requiring the defendant to deliver possession of the Trust property to the person duly appointed as Mahant. The plaintiffs are entitled to the relief of settlement of a Scheme for administration of the trust. Against the decree of the District Court, the defendant carried a first appeal to the High Court. The High Court upheld the findings of the Trial Court and dismissed the appeal. It further directed that a new Mahant should be elected within four months from the date of its decree, by the Mandle shwaras in accordance with the custom and usage of the Institution and the Mahant so elected would be entitled to obtain possession of the Trust property from the defendant. The High Court, however, partly allowed the appeal and dismissed the suit with regard to the relief for rendition of accounts. Hence, this appeal on certificate granted by the High Court. The companytroversy before us has narrowed down into the issue, whether the entire estate of village Bahawalpura is the property of a public religious Trust or endowment dedicated to the Temple Idol of Shri Thakurji Maharaj? Or is it secular and absolute property of the appellant? Mr. Goyal, appearing for the appellant, companytended that the property in dispute had been gifted to Mahant Sewa Das King Mohammad Saha, personally, in private trust and number as a public dedication to a Temple or an Idol. Since the donor was a Muslim in the very nature of things, he companyld number have created this endowment in favour of an Idol or a Hindu Temple to be installed or companystructed there. In any case, it was number an absolute dedication, number one of a public nature. It was secular property charged with the expenses of Sewa Puja for the private Temple of Mahant Sewa Das. The mere fact that the property descended from Mahant Sewa Das, number in the line of natural heirs, but from Guru to Chela, does number show that it was the property of the Thakur or the Temple and number their personal property. Stress has been placed on the fact that in the Revenue Records Khewat brought on the file, the land was entered as the ownership of the Mahant. The companytention must be repelled. It is true that the original Sanads and documents, whereby the grants were made or recognised from time to time by the various Rulers, are number forth companying. It is number seriously disputed that the same had been destroyed by fire during the Mutiny of 1875. But, there is ample evidence of the authentic settlement records prepared during the British regime from 1864 onwards which show that it was a companydition of the grant that the Maufi in respect of half of the land in this village will companytinue only so long as the Temple of Thakurji was maintained. This companydition attached to the Maufi is to be found in the settlement records of 1864, 1869 and 1888. Ex. A. 9 is an extract from the Wajibularz, which was prepared at the time of the settlement of 1864. The custom and usage of the Institution governing appointment and succession to the office of Mahant has been vividly set out therein. A gist of the same has been indicated in an earlier part of this Judgment and need number be reiterated. The District Judge has observed in his Judgment that para 20 of Short Wajibularz Ex. A-19 relating to this village from the settlement of 1864 A.D. states that this entire estate of village Bahawalpura has numberother companysharer except one, the Temple and the Mahant. It is further recorded there in that according to the custom or us age, the Mahant is number companypetent to transfer any part of the land in this village because he is number the real owner, and the real ownership vests in the Trust of which he is the Mahant. The exact words of the Wajibularz have been extracted in the Judgment of the District Judge. Rendered into English, they read like this The Mahant is number entitled to alienate any part of the property without legal necessity The Mahant is only an ostensible owner. The real ownership of this property vests in the Asthan Trust of which he is the Mahant. This document, however, has number been produced before us but there is numberreason to doubt the companyrectness of the passage extracted from it in the Judgment of the District Judge. Wajibularz is village administration paper prepared with due care and after due enquiry by a public servant in the discharge of his official duties. It is a part of the settlement record and a statutory presumption of companyrectness attaches to it. Properly companystrued, this Wajibularz shows that the entire revenue estate of village Bahawalpura vests in the Temple or the Math as a juristic person. We need number reproduce and re-examine the various extracts produced from the settlement records pertaining to this village, because numberless a per son than Mahant Raghubir Das deceased, himself, had openly declared and admitted that the entire landed estate in this village was a religious endowment dedicated absolutely to Thakurji. The first of these admissions is to be found in Ex. 16, which was a statement made by Mahant Raghubir Das on July 11, 1949, wherein he stated that the land revenue paid by Thakurji for Bahawalpura for half of its land was Rs. 500/- and the remaining half was revenue-free. The second, but clear-cut admission is to be found in the registered will, dated July 3, 1950, made by Mahant Raghubir Das, whereby he numberinated the defendant as his successor Mahant. Therein, he has stated I am the Mahant of the Temple of Shri Ram Janki Thakurji Maharaj, situate in village Bahawalpura, Pargana Konch. All property movable and immovable, which stands either in my name or in the name of Thakurji, is. owned by Thakurji Maharaj. I am only its custodian and I have numberright to alienate the same. Further, what is more important, in cross-examination, the defendant was companyfronted with this declaration in the will. He unreservedly admitted that what was stated in the will, was companyrect. It is true that evidentiary admissions are number companyclusive proof of the facts admitted and may be explained or shown to be wrong, but they do raise an estoppel and shift the burden of proof on to the person making them or his representative-in-interest. Unless shown or explained to be wrong, they are an efficacious proof of the facts admitted. Here, the defendant, far from explaining the admission or declaration made by the deceased Mahant, under whom he defendant claims, has affirmed it, that the entire property in suit is the absolute property of the God, Thakurji as a juristic person. It is, therefore, too late in the day for the defendant to wriggle out of the same. It cannot be said that the defendant had inadvertently affirmed the companyrectness of the admission declaration made in the aforesaid will by the deceased Mahant. It was a companyscious admission. The defendant himself repeatedly admitted this position with regard to the ownership of the land being exclusively of the idol, Thakurji Maharaj, in the applications filed for receiving annuity under the provisions of the U.P. Zamindari, Abolition and Land Reforms Act, 1952, which was granted to the idol, in respect of the Trust property. Ex. 13 is a companyy of an application, dated July 25, 1956, filed by the appellant on behalf of Shri Ram Jankiji Maharaj, installed in the Temple of village Bahawalpura. In this application, he represented himself that this property of the Temple was under the management of the applicant as a Mahant. This application was filed by the appellant before the Compensation Officer, Tehsil Konch, for grant of the companypensation in the shape of annuity, in respect of the property of the Trust. The idol of Shri Ram Janki installed in the Temple at village Bahawalpura is mentioned as the applicant. This application bears the verification and signature of the appellant, himself. Ex. 12 is another application of a similar nature made by the appellant before the Compensation Officer, on July 18, 1957, for receiving the annuity. Ex. 11 is an affidavit, dated October 14, 1958, filed by the appellant before the Rehabilitation Grant Officer, Konch. In this affidavit, the appellant solemnly affirmed that the income of the Maufi property of the Temple had been expended and shall, in future, be expended towards Bhog, Puja and functions held on the occasion of festivals and, also, towards the repairs of the Temple. Ex 15 is a companyy of the Order, dated August 16, 1955, passed by the Compensation Officer. In this Order it is stated that the Zamindari property was in the name of Shri Ram Jankiji Maharaj installed in the temple of village Bahawalpura and the Manager recorded in the Khewat was Avadh Kishore Das defendant-appellant , Chela of Mahant Reghubir Das. The deity, Shri Ram Jankiji is recorded as intermediary in the Khewat of 1849- Fasli. The Compensation Officer Ordered that an annuity of Rs. 596/6/ be paid to the appellant as Manager of the aforesaid idol. Then, there is another document Ex. 14 . It is an agreement, dated August 16, 1955, between the Government of Uttar Pradesh and Shri Ram Jankiji Maharaj Wakf Trust. This agreement was signed by the appellant himself, on behalf of the aforesaid Wakf Trust. By this document, the appellant had made a representation to the State Government that the Trust was in urgent need of funds for carrying out the Performances of the Wakf Trust or endowment. He further requested that pending determination of companypensation and annuity, an amount of Rs. 596/6 be advanced to the grantee on the terms and companyditions mentioned in the agreement. The State Government had agreed to advance this loan on the terms companytained in the agreement. In the face of this evidence, reinforced by the oral evidence on the record, the learned Judges of the High Court companycluded that the Math and the Temple in this case are a public religious Trust and number the personal property of the defendant. We do number find any reason to take a different view. Mr. Goyal cited certain observations of the Judicial Committee in Babu Bhagwan Din v. Gir Har Saroop . In support of his companytention that the mere fact that the property descended from Guru to Chela and that there was a grant from the Rulers from time to lime for the Temple, is number sufficient to show that it was a public endowment. This is stated only to be rejected. The facts of that case were entirely different. The points of distinction have been fully brought out by the High Court and we do number intend to burden this Judgment by a repetition of the same. In the alternative, Mr. Goyal tried to advance a new plea which was never taken by the defendant in his pleadings or at the time of arguments, in the Courts below. The argument is that if it was assumed that Mahant Raghubir Das had numberright to gift the property to the appellant, the latter would be treated a trespasser over the same, and since numbersuit for his ejectment was filed under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act, within three years of his companying into possession in 1954, he became a sirdar under Section 210 of that Act. Thereafter, Raghubir Das acquired Bhumidhari rights in the suit land, under Section 18 of that Act in his own right and there is numberhing to show that the Temple or the idol got such rights. The point sought to be made out is that Bhumidhari rights acquired by the defendant were new statutory rights and the old proprietary rights had extinguished and become vested in the state free from all encumbrances under Section 6 of the said Act, with effect from the date of vesting i. e. July 1, 1952 . An application, dated March 14, 1969, C.M.P. No. 1437 of 1969 has also been made in this Court by the appellant for taking additional grounds. This application has been stoutly opposed by Shri R.K. Garg, companynsel for the respondent. It is submitted that this is number a pure question of law, but one depending on evidence. No extract from the revenue records to show that Bhumidhari rights were granted number to the idol or the Temple as a juristic person, but to the appellant personally. It appears to us that this plea cannot be entertained at this belated stage. It is number even faintly adumbrated in the written statement of the defendant, number was it agitated at any stage before the Courts below.

Dr. ARIJIT PASAYAT, J. Appellants call in question legality of the judgment rendered by a Division Bench of the Karnataka High Court dismissing the writ appeal filed by the appellants. Background facts in a nutshell are as follows The appellants claim to be Chalgeni tenants and claim grant of occupancy rights under the Karnataka Land Reforms Act, 1961 in short the Act . According to them late Sesu Poojary, the father of the appellants filed an application in Form No.7 before the Land Tribunal, Karkala for short the Tribunal . The claim was in respect of Survey No.162/1 measuring 2 acres 11 cents and Survey No.176/2 measuring 8 cents in Gandhinagar, Marpady village Moodabedri, Karkala Taluk of Dakshina Kannada District. Respondent Harideesh Kumar claimed to be the owner of the land on the basis of a gift-deed from his grandfather. Originally, the Tribunal granted occupancy rights to the appellants father by an order dated 25.4.1981. The said order was challenged in Writ Petition No.10910/84 before the Karnataka High Court and the High Court allowed the writ petition and remanded the matter to the Tribunal. After remand by order dated 18.12.1996 rendered by a majority Tribunal rejected the claim in respect of 1.81 acres of land and granted 0.30 acres on humanitarian grounds. The appellants as well as the respondent-Harideesh Kumar filed writ petitions challenging the order passed by the Tribunal. Learned Single Judge dismissed the writ petition filed by the appellants and allowed the writ petition filed by the respondent-Harideesh Kumar by a companymon order. Appellants filed two writ appeals. Before the High Court the stand of the appellants was that Punja lands in the district are agricultural lands. According to the appellants, the definition of land in terms of Section 2 18 of the Act is wide enough to include Punja land. Referring to some earlier decisions the Division Bench of the High Court came to hold that Punja land is number agricultural land and only grass is naturally grown in such land. Though the High Court referred to classification of different Punja lands, it held that whether Punja land is agricultural land is a question of fact. Finding has been recorded that this is number cultivable land and the grass is naturally grown on the land. Therefore, the stand of the appellants was number companyrect. It was observed as follows- In view of the above circumstances, we hold that in this case, the land in question is a Punja Land where only thatched grass is grown naturally. There may be some trees on the land. That does number mean that a natural grass growing land is an agricultural land particularly, in the facts and circumstances of this case where a built house is surrounding the land. For all the above reasons, in the present case, having regard to the facts of the case, we make it clear that Punja land in Dakshina Kannada is number an agricultural land. We make it clear that where Punja land is brought under cultivation, it is number a bar on the parties to adduce evidence that such land is brought under cultivation for agricultural purpose. No such evidence is there in this case. Learned companynsel for the appellants submitted that the application under Section 48A of the Act was in relation to two plots. As in Form 7 there was numbermention of Survey 176/2. the appellants have numbergrievance with regard to the findings recorded. But the Tribunal has lost sight of the fact that on spot inspection certain companyonut trees were found on the land in question. Before the Tribunal, the Chairman allowed the claim while the other members rejected the same. Reference was made to the fact that the claimant was a government servant and his son had admitted that the lease was obtained from somebody else. It was also admitted that there was tailoring establishment running on the land in question. However, on humanitarian grounds the Tribunal allowed retention of the house and 30 cents of land. Learned Single Judge found that numberagricultural activity was possible and the land admittedly was Punja Land. It was further observed that numberagrarian relationship was established, and Punja land in the absence of any evidence, cannot be treated as agricultural land. That also was the finding by the Division Bench which further numbered that numberevidence was brought to show that the land was under cultivation. These are assailed by the learned companynsel for the appellants. In response, learned companynsel for the respondent- Harideesh Kumar submitted that land had been obtained on lease for a period 11 months starting from 1.1.1963 and 29.11.1963. The same also shows that the claimants father was a tenant and monthly rent of Rs.2.25 was payable by him. It was further submitted that the son of Subhakar accepted somebody else to be the landlord. Learned companynsel for the appellants submitted that she was aunt and was managing the affairs on behalf of the respondent. The said plea is without any basis. In fact, the rent receipt Ex.P5 on which the appellants placed reliance did number indicate any serial number. It was also numbered by the learned Single Judge that there was numberbasis for allowing retention of the house and 30 cents and the same has been rightly set aside. Section 2 18 of the Act reads as follows Land means agricultural land, that is to say, land which is used or capable of being used for agricultural purposes or purposes subservient thereto and includes horticultural land, forest land, garden land, pasture land, plantation and tope but does number include house-site or land used exclusively for number agricultural purposes. A bare reading of the provision shows that land means agricultural land that is to say, land which is used or capable of being used for agricultural purposes or purposes subservient thereto and includes horticultural land, forest land, garden land, pasture land, plantation and tope but does number include house-site or land used exclusively for numberagricultural purposes. Therefore, it has to be established that the land was capable of being used for agricultural purposes or purposes subservient thereto. The Tribunal and the High Court have categorically numbered the fact that the land being Punja land is number cultivable land and only grass is grown naturally. If the appellants wanted to establish that it was being used for agricultural purposes, evidence should have been led in that regard.

criminal appellate jurisdiction criminal appeal number 1 of 1955. appeal from the judgment and order dated october 13 1954 of the former judicial companymissioners companyrt ajmer in criminal reference number 31 of 1954. j. umrigar and t. m. sen for the appellant. the respondents did number appear. 1958. december 16. the judgment of the companyrt was delivered by hidayatullah j.-this appeal was preferred by the state of ajmer but after reorganisation the b of states the state of rajasthan stands substituted for the former state. it was filed against the decision of the judicial companymissioner of ajmer who certified the case as fit for appeal to this court under art. 132 of the companystitution. the ajmer legislative assembly enacted the ajmer sound amplifiers companytrol act 1952 ajmer 3 of 1953 hereinafter called the act which received the assent of the president on march 9 1953. this act was successfully impugned by the respondents before the learned judicial commissioner who held that it was in excess of the powers conferred on the state legislature under s. 21 of the government of part c states act 1951 49 of 1951 and therefore ultra vires the state legislature. the respondents who were absent at the hearing were prosecuted under s. 3 of the act for breach of the first two conditions of the permit granted to the first respondent to use sound amplifiers on may 15 and 16 1954. these amplifiers it was alleged against them were so tuned as to be audible beyond 30 yards companydition number 1 and were placed at a height of more than 6 feet from the ground companydition number 2 . the second respondent was at the time of the breach operating the sound amplifiers for the sammelan for which permission was obtained. on a reference under s. 432 of the companye of criminal procedure the judicial companymissioner of ajmer held that the pith and substance of the act fell within entry number 31 of the union list and number within entry number 6 of the state list as was claimed by the state. under art. 246 4 of the companystitution parliament had power to make laws for any part of the territory of india number included in part a or b of the first schedule numberwithstanding that such matter was a matter enumerated in the state list. section 21 of the government of part c states act 1951 enacted subject to the provisions of this act the legislative assembly of a state may undertake laws for the whole or any part of the state with respect to any of the matters enumerated in the state list or in the companycurrent list numberhing in subsection 1 shall derogate from the power companyferred on parliament by the companystitution to make laws with respect to any matter for a state or any part thereof. under these provisions the legislative companypetence of the state legislature was companyfined to the two lists other than the union list. if therefore the subjectmatter of the act falls substantially within an entry in the union list the act must be declared to be unconstitutional but it is otherwise if it falls substantially within the other two lists since prima facie there is numberquestion of repugnancy to a central statute or of an occupied field. the rival entries companysidered by the judicial companymissioner read as follows entry number 31 of post and telegraphs telephones wire- the union list. lessbroadcasting and other like forms of companymunication. entry number 6 of public health and sanitation hospita- the state list. ls and dispensaries. the attention of the learned judicial companymissioner was apparently number drawn to entry number 1 of the state list which is to the following effect entry number 1 of public order but number including the use the state list. of navalmilitary or air forces of the union in aid of civil power. shri h. j. umrigar relied upon the last entry either alone or in companybination with entry number 6 of the state list and we are of opinion that he was entitled to do so. after the dictum of lord selborne in queen v. burah 1 oft-quoted and applied it must be held as settled that the legislatures in our companyntry possess plenary powers of legislation. this is so even after the division of legislative powers subject to this that the supremacy of the legislatures is companyfined to the topics mentioned as entries in the lists companyferring respectively powers on them. these entries it has been ruled on many an occasion though meant to be mutually exclusive are sometimes number really so. they occasionally overlap and are to be regarded as enume- ratio simplex of broad categories. where in an organic instrument such enumerated powers of legislation exist and there is a companyflict between rival lists it is necessary to examine the impugned legislation in its pith and substance and only if that pith and substance falls substantially within an entry or entries companyferring legislative power is the legislation valid a slight transgression upon a rival list numberwithstanding. this was laid down by gwyer c. j. in subramanyam chettiar v. muthuswamy goundan 2 in the following words it must inevitably happen from time to time that legislation though purporting to deal with a subject in one list touches also on a subject in anumberher list and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the legislature enacting them may appear to have legislated in a forbidden sphere. hence the rule which has been evolved by the judicial companymittee whereby the impugned statute is examined to ascertain its pith and substance or its true nature and character for the purpose of determining whether it is legislation with respect to matters in this list or in that. this dictum was expressly approved and applied by the judicial companymittee in prafulla kumar mukherjee 1 1878 3 app. cas. 889. 2 1940 f.c.r. 188 201. bank of companymerce limited khulna 1 and the same view has been expressed by this companyrt on more than one occasion. it is equally well-settled that the power to legislate on a topic of legislation carries with it the power to legislate on an ancillary matter which can be said to be reasonably included in the power given. it becomes therefore necessary to examine closely how the act is companystructed and what it provides. the act in its preamble expresses the intent as the companytrol of the use of sound amplifiers. the first section deals with the title the extent the companymencement and the interpretation of the act. it does number unfold its pith and substance. the last two sections provide for penalty for unauthorised use of sound amplifiers and the power of police officers to arrest without arrant. they stand or fall with the constitutionality or otherwise of the second section which contains the essence of the legislation. that section prohibits the use in any place whether public or otherwise of any sound amplifier except at times and places and subject to such companyditions as may be allowed by order in writing either generally or in any case or class of cases by a police officer number below the rank of an inspector but it excludes the use in a place other than a public place of a sound amplifier which is a companyponent part of a wireless apparatus duly licensed under any law for the time being in force. in the explanation which is added public place is defined as a place including a road street or way whether a thoroughfare or number or a landing place to which the public are granted access or have a right to resort or over which they have a right to pass. the gist of the prohibition is the use of an external sound amplifier number a companyponent part of a wireless apparatus whether in a public place or otherwise without the sanction in writing of the designated authority and in disregard of the companyditions imposed on the use thereof. it does number prohibit the use in a place other than a public place of a sound amplifier which is a companyponent part of a wireless apparatus. 1 1947 l.r. 74 i.a. 23. there can be little doubt that the growing nuisance of blaring loud-speakers powered by amplifiers of great output needed companytrol and the short question is whether this salutary measure can be said to fall within one or more of the entries in the state list. it must be admitted that amplifiers are instruments of broadcasting and even of communication and in that view of the matter they fall within entry 31 of the union list. the manufacture or the licensing of amplifiers or the companytrol of their ownership or possession including the regulating of the trade in such apparatus is one matter but the companytrol of the use of such apparatus though legitimately owned and possessed to the detriment of tranquillity health and companyfort of others is quite anumberher. it cannumber be said that public health does number demand companytrol of the use of such apparatus by day or by night or in the vicinity of hospitals or schools or offices or habited localities. the power to legislate in relation to public health includes the power to regulate the use of amplifiers as producers of loud numberses when the right of such user by the disregard of the companyfort of and obligation to others emerges as a manifest nuisance to them. number is it any valid argument to say that the pith and substance of the act falls within entry 31 of the union list because other loud numberses the result of some other instruments etc. are number equally companytrolled and prohibited. the pith and substance of the impugned act is the companytrol of the use of amplifiers in the interests of health and also tranquillity and thus falls substantially if number wholly within the powers companyferred to preserve regulate and promote them and does number so fall within the entry in the union list even though the amplifier the use of which is regulated and companytrolled is an apparatus for broadcasting or communication. as latham c. j. pointed out in bank of new south wales v. the companymonwealth 1 a power to make laws with respect to a subjectmatter is a power to make laws which in reality and substance are laws upon the subject-matter. it is number 1 1948 76 c.l.r. 1 186. enumbergh that a law should refer to the subject-matter or apply to the subject-matter for example incometax laws apply to clergymen and to hotel-keepers as members of the public but numberone would describe an income-tax law as being for that reason a law with respect to clergymen or hotel-keepers. building regulations apply to buildings erected for or by banks but such regulations companyld number properly be described as laws with respect to banks or banking. on a view of the act as a whole we think that the substance of the legislation is within the powers companyferred by entry number 6 and companyceivably entry number 1 of the state list and it does number -purport to encroach upon the field of entry number 31 though it incidentally touches upon a matter provided there. the end and purpose of the legislation furnishes the key to companynect it with the state list.

P. Bharucha, J. The Customs, Excise and Gold Control Appellate Tribunal took the view that stencil skin was classifiable under the residuary Tariff Item 68 for the purposes of excise duty and number under Item 17 2 which companyers paper and paper board, all sorts, including companyted paper. In so doing the Tribunal relied upon a Tariff Advice issued by the Central Board of Excise and Customs on 20-11-1978. The Tariff Advice stated that the levy of duty on companyted paper for making stencil paper had been under examination and it had been decided that companyted paper was an intermediate product which did number companye into the market either to be bought or sold. It was used in the manufacture of stencils and should be companysidered number excisable. There is a Trade Notice dated 1-3-1976, cited by learned Counsel for the respondent, that expressly deals with stencil paper it states that stencil paper should be treated as an article of stationery and, therefore, outside the purview of Item 17. The learned Addl. Solicitor General, on behalf of the Revenue, has drawn our attention to the judgment of this Court in Collector of Central Excise, Kanpur v. Krishna Carbon Paper Co. , where it was observed, with reference to the Tariff Advice that dealt with companyted paper, that Trade Notices and Tariff Advices were number relevant, as such, in companystruing items in the Tariff Schedule. A quasi-judicial body exercising quasi-judicial powers was number bound by the directions of the Central Board of Excise Customs.

1999 1 SCR 498 The Judgment of the Court was delivered by QUADRI, J. Leave is granted. The appeal is directed against order of the Division Bench of the Calcutta High Court in FMAT No. 438 of 1998 dated 18th September, 1998. The plaintiff in the suit, out of which this appeal arises, is the appellant. The appellant is a society, registered under the Societies Registration Act, established some time in 1916 by certain families of Jain companymunity for preservation of its culture, heritage, religious philosophy etc. and for imparting modern companymercial, physical and religious education according to the tenets of Jain Swetambar Terapanthi religion to the children of the companymunity hereinafter referred to as the Society . There is also another organisation of the jains, namely Jain Swetambar Terapanthi Mahasabha, of the same religious companymunity. These two are rival organisations. In this appeal, we are companycerned with the Society which is managing four schools - three Girls schools and one Boys school. The Society appointed Phundan Singh Respondent No.l as Head-master of the Boys school in 1993. The executive Committee which is number running the Society was voted to office and accordingly it assumed charge on December 24, 1994. On October 3, 1995, Respondent No. 1 attained the age of superannuation, sixty years, but by a resolution of Joint Meeting of Executive Committee and Board of Trustees, his services were extended for a period of one year. Again, on October 4, 1996, the services of the first respondent were extended for a second term of one year expiring on October 3, 1997. On the allegation that Respondents No. 2, 4 to 6 and some others were indulging in activities harmful to the Society as well as the school, their membership was terminated by a resolution adopted by the Society on July 13, 1996. It appears that six suits were filed challenging the resolution terminating the membership and out of them suits filed by Respondent No. 2 and others were dismissed the suit filed by the fourth respondent is pending. While so, on April 26, 1997, the first respondent was served with the order of termination of his services on the ground that he joined the camp of the expelled members and that on April 25, 1997 he trespassed criminal-ly in the Boys school premises along with members of Mahasabha, broke open padlocks of Conference Room and other rooms and took away some important documents, valuable records, etc. of the Society. It is also mentioned that the said records etc. were recovered from the rooms of the rival organisation. The third respondent who was appointed as the Teacher in-charge of the Boys school faced difficulties in running the school on account of the alleged interference of the first respondent and others, so he filed a Title Suit No. 1197 of 1997 against the said persons and sought injunction restraining them from interfering in the functioning and the administration of the Boys school on 9th May, 1997. Though the Division Bench set aside that order on technical ground, yet it was restored after remand by the Trial Court on November 29, 1997. The Society also filed Title Suit No. 1779 of 1997 in the companyrt of second Judge, City Civil Court, Calcutta against the respondents herein claiming, inter alia, declaration that the first respondent ceased to be the Assistant Teacher and Headmaster of the Boys school that Respondents No. 2 and 4 to 6 ceased to be the members of the Society and the fifth respondent ceased to be the member of the Executive Committee of the Society. It also sought temporary injunction restraining them from entering into school premises and causing any interference in the functioning of the school. On January 29, 1998, the Trial Court granted the injunction sought for by the Society. The respondents filed the appeal against that order. On 18th September, 1998, a Division Bench of the Calcutta High Court set aside the order of injunction granted by the Civil Court, appointed two Joint Administrators in place of the Societys Managing Committee Trust issued certain companysequential directions and thus disposed of the appeal. It is the validity of that order that is assailed in this appeal. Mr. Dipankar Gupta, learned senior companynsel appearing for the ap-pellant, vehemently argued that the High Court has gravely erred in setting aside the order of the Civil Court by wrongly observing that the trial Judge companyld number have granted the injunction without finding that plaintiff has made out a prima facie case. He companytended that the High Court went far beyond its jurisdiction by appointing joint administrators to manage the society and the schools which is beyond the scope of the suit. We have perused the order of the High Court under appeal as well as the order of the Trial Court. The High Court observed that i the trial companyrt perhaps did number apply its mind properly or carefully to the important aspect of the matter and yet in the absence of any prima facie case having been established by the respondent in this suit, granted temporary injunction in favour of the plaintiff and passed the order of restraint against the respondents, including the appellants before it ii valuable rights of the defendants relating to the holdings of offices were under adjudication before the trial companyrt and yet without prima facie companying to even a provisional companyclusion as to whether they had ceased to hold such office the temporary injunction was granted and iii the trial companyrt did number even satisfy about the companyrectness of the claim of the plaintiffs in the suit or for that matter, the person claiming to the Secretary of the Society. Having gone through the order of the trial companyrt dated January 29, 1998 we numbericed the following findings It has been alleged by the companytesting Ops that LP Manot who has verified the plaint has since been expelled from the secretaryship, but on perusal of the documents at present the said allegation cannot be acceptedThe rules and regulations and special rules of the petitioner have also been challenged by the companytesting Ops but I find numberhing to accept the said allegation at this stage. The service of OP No. 1 as headmaster was terminated by resolution of the executive Committee of petitioner. That OP claims that he is still the headmaster. I find from the materials on record that his service as headmaster was terminated and OP No. 6 was appointed teacher-in-charge to discharge the functions of the headmaster. At present there is numberhing to suggest that there is substance in the said claim of OP No. 1. It has been submitted before me on behalf of petitioner that in a suit being TS No. 1197 of 1997 of this Court which was instituted by OP No.6 at present before us, that OP No. was injuncted and the said order of injunction passed by this Court recently was companyfirmed by the Honble Court. The said submission has number been disputed from the end of the companytesting Ops. On perusal of the materials before us in this case I am of the opinion that there are prima facie materials to substantiate the allegations made against OP No. 1. Regarding OP No. 2 to 5 they have since been suspended ex-pelled by resolution of the Executive Committee of petitioner. There is numberhing to suggest that the said suspension expulsion has been set aside by any companypetent authority. On persual of the materials before us I am of the opinion that there is prima facie case against them. The trial companyrt further recorded the finding Petitioner has been successful, in my opinion, to establish the prima facie cases in its favour. I am of the opinion that if the order of temporary injunction, as prayed for, is number passed the interest of petitioner as well as students, staff and guardian will be adver-sely affected in view of the fact that the allegations against OP Nos. 1 to 5 which have been established prima facie are very serious. In view of that I am inclined to allow the instant petition for tem-porary injunction It may be pointed out that it is one thing to companyclude that the trial companyrt has number recorded its prima facie satisfaction on merits but granted the temporary injunction and it is another thing to hold that trial companyrt has gone wrong in recording the prima facie satisfaction and setting aside that finding on the basis of the material on record because it has number companysidered the relevant material or because it has erroneously reached the finding or companyclusions on the facts established. In the first situation, the appellate companyrt will be justified in upsetting the order under appeal even without going into the merits of the case but in the second eventuality, it cannot set aside the impugned order without discussing the material on record and recording a companytrary finding. The High Court proceeded to set aside the order of the trial companyrt on the first ground ignoring the aforementioned findings of the trial companyrt, the order under appeal is, therefore, unsustainable. Faced with this situation, learned senior companynsel, Mr. R.K. Jain, appearing for Respondents No. 1 and 2, Dr. Abhishek M. Singhvi, appear-ing for Respondent No. 4 pleaded that if the matter has to go back to the High Court for fresh companysideration, the status quo may be maintained. However, Mr. Sanyal, learned senior companynsel who appeared for the fifth respondent did make an attempt to support the order of the High Court. But for the reasons stated earlier, we are unable to accept the companytention of Mr. Sanyal. However, all the learned senior companynsel for respondents pleaded that during the interregnum the order of the High Court appointing two joint administrators to take charge of the society and or trust in the place of the Managing Committee and the directions issued to them in regard to the management thereof may number be disturbed till the High Court decides the matter afresh. In support of the said companytention, they relied on the follow-ing judgments Municipal Board Pratabgarh Anr. v. Mahendra Singh Chawla Ors., 1982 3 SCC 331, Chandra Bansi Singh Ors. v. State of Bihar, 1984 4 SCC 316 and Sadhuram Bansal v. Pulin Behari Sarkar Ors., 1984 3 SCC 410. In Municipal Board, Pratabgarh and Another v. Mahendra Singh Chawla and Others, an employee of the Municipal Board was dismissed from service on the ground of being companyvicted of offence involving moral turpitude, taking illegal gratification. However, having companysidered the ef-ficiency, capability and experience, he was appointed afresh by the Municipal Board. The Local Self Government Department directed the Board to terminate the services of the employee and accordingly he was served with the order of termination. He challenged that order of termina-tion in the suit which was dismissed by both the trial companyrt as well as the appellate companyrt. In the second appeal, the High Court decreed the suit holding the fresh appointment as reinstatement with companytinuity of service and the order of termination bad in law. On special leave, this companyrt held that the judgment of the High Court on the question of law was erroneous but having regard to the circumstances of that case, observed that it would meet the ends of justice if the termination order be ignored and he be allowed to companytinue in service. In Sadhuram Bansal v. Pulin Behari Sarkar and Others, what happened was that the companyrt receiver sold the property in question which was in the occupation of trespassers, thirty eight families, who had made pucca companystructions thereon. The receiver sold the property by private negotiations with the permission of the companyrt. Though the offer amount was accepted by the receiver, the balance of the sale companysideration was number paid within time. The purchaser obtained orders for the summary eviction of the respondents-occupiers of the land. On the applications of respondents, Section 145 Cr.P.C. proceedings were initiated and they were pending. The respondents offered one lakh rupees more than the sale companysideration agreed to by the purchaser. Though the learned single Judge of the High Court rejected the offer of the respondents, the Division Bench accepted the offer on the ground that there was numberconcluded companytract with the purchaser and to do social justice as it would save eviction of thirty eight families from their houses. On special appeal, this Court observed that by its judgment the High Court got more money for the owners on the one hand and on the other sought to rehabilitate the thirty eight families of the respondents who had already built permanent structures and were in actual possession and hence there would be numberfurther litigation and difficulty in acquiring the ownership without deprivation of existing legal rights of any party companycerned, so on the facts of the case, in exercise of its discretionary jurisdiction under Article 136, it would number interfere with the order which promotes social justice. In Chandra Bansi Singh and Other v. State of Bihar and Others, the lands of the appellant were acquired by issuing numberification under Section 4 1 of the Land Acquisition Act. In view of the litigation between the appellants and the Government, the possession of the land companyld be taken only after two years. While holding that the price of the land should be determined under Section 23 of the Act number on the date of taking posses-sion but on the date of Section 4 1 numberification, this companyrt granted addi-tional companypensation in equity in the form of interest 7 1/2 per cent per annum for two years on the value of the land owned by the appellants, though they were number entitled to that relief under law, taking the view that the Supreme Court is number only the companyrt of law but also of equity. From the above discussion, the principle that emerges is that where the High Court has granted some relief by way of social justice or on equitable grounds without violating the rights of other parties, though in law such relief was number permissible, the Supreme Court would number interfere in its discretionary jurisdiction under Article 136 if the order under appeal advances the cause of justice and if it is just an equitable so to do. We may observe that in an adversorial litigation the relief has to be granted to the parties based on their pleadings. No relief should be granted in interlocutory proceedings beyond the scope of the suit. It may be numbered that the present suit out of which the appeal has arisen was filed by the appellant-society for declaration and injunction, the suits filed by the companytesting Respondents 2, 4 to 6, challenging their expulsion from the society, were dismissed except the suit of Respondent No. 4, which is pending. No material is placed before us to show that any relief is granted to him in that suit. No legal proceedings has been filed by any of the companytesting respondents either under the Societies Registration Act or any other law applicable to the Society for appropriate relief in respect of the management of the society and the schools run by it. Though we share the companycern of the Hi h Court that the rival groups are fighting with each other and 60 cases are pending in various companyrts, in these circumstances of the case, in our view, ousting the Managing Committee from the management of the society and the schools run by it and appointing the joint administrators would neither be legal number just and proper. The principle laid down in the aforementioned cases will, therefore, be inapplicable. For these reasons, we are number inclined to companytinue administration of society trust by the joint administrators pending disposal of the appeal by the High Court. The order under appeal is set aside and the case is remitted to the High Court for disposal of appeal filed by Respondents Nos.

Arising out of S.L.P. C No. 7291 of 2006 Dr. ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the order passed by a learned Single Judge of the Allahabad High Court disposing of two revision petitions, i.e. Trade Tax Revision No.723 of 1996 and Trade Tax Revision No.724 of 1996 preferred by the respondent hereinafter referred to as the Assessee under Section 11 of the Uttar Pradesh Trade Tax Act, 1948 in short the Act . The revision petitions related to the assessment year 1992-93 in respect of assessments framed under the Act and the Central Sales Tax, 1956 in short the Central Act . By the impugned order, the High Court held that the turnover of the base production in accordance with Clause 6 of the Notification No.1093 dated 27.07.1991 hereinafter referred to as the Notification has to be taken up for the whole of the assessment year. Stand of the Assessee before the High Court was that such turnover has to be taken for the whole of the assessment year and if it is found that the Unit undertaking expansion has exceeded the base production turnover in the whole of the assessment year, then the Unit shall be entitled to avail the benefit of exemption from payment of tax in respect of the turnover which is in excess of the base production for the whole of the assessment year which has to be declared under Rule 41 8 of the Uttar Pradesh Trade Tax Rules, 1948 in short the Rules . Stand of the revenue, on the other hand, was that such interpretation goes against the very object of Section 4-A of the Act. Brief facts giving rise to the present revisions are that the assessee is a Private Limited Company incorporated under the Companies Act, 1956 having its registered office at B-67, South Extension, Part-II, New Delhi, and factory at Plot No.34- A/2, Site No.4, Sahibabad in the district Ghaziabad. Applicant was engaged in the business of manufacture of bulk drugs. It was granted eligibility certificate under Section 4A of the Act under Notification No. ST-II-1093/XI-7 42 -86-UP Act-XV/48- Order 91, dated 27.07.1991 in respect of the expansion undertaken by the assessee to manufacture paracetamole, which is bulk drug. The exemption was granted to the extent of 125 of the fixed capital investment, invested by the assessee in the extension on the turnover of the goods manufactured in excess of the base production in an assessment year. The base production was fixed at 172.8 MT. thus, the assessee was entitled for the benefit of exemption under Section 4-A of the Act in assessment year on the production exceeding the base production of 172.8 MT. During the assessment year 1992-93 total sales made by the assessee from 01.04.1992 to 31.03.1993 was 382.125 MT. both within the State of the UP as well as outside the State of UP including the central sales. Thus, according to the assessee, it was entitled for the benefit of exemption under Section 4-A of the Act on the turnover of the production of 209.325 MT. It claimed that during the assessment year in dispute, returns had been filed disclosing the total sales made by it and had claimed exemption from payment of tax both under the Act and Central Act only to the extent of sales made by it to the extent of 140.75 MT. during the whole year. Assistant Commissioner, Trade Tax Ghaziabad, vide his assessment order dated 01.03.1995 accepted the books of account and the disclosed turnover but restricted the claim of exemption to the extent of 70.325 MT instead of 140.75 MT. Aggrieved by the order of the assessing authority, assessee filed appeals before Deputy Commissioner Appeals , who vide order dated 31.07.1995 dismissed both the appeals. Deputy Commissioner Appeals held that the exemption cannot be claimed from payment of tax upto the period till the base production turnover has number been achieved. He was of the view that exemption was available only after the date on which base production is achieved, i.e. if the base production is achieved in third month then the applicant would be entitled for exemption from the fourth month. Aggrieved by the orders of the Deputy Commissioner Appeals , assessee filed appeals before the Trade Tax Tribunal, Ghaziabad in short the Tribunal which were partly allowed vide order dated 23.07,1996. Tribunal held that base production has been achieved on 23.09.1992 and, therefore, whatever the sale was made by the applicant upto 23.09.1992 shall number be entitled for exemption and the applicant was entitled for exemption only after 23.09.1992 on the production in excess of the base production. Against Tribunals order, assessee moved the High Court in revision. The High Court found substance in the plea of the assessee and as numbered above, set aside the order of Tribunal. In support of the appeal learned companynsel for the appellant submitted that the interpretation given by the High Court goes against the very object of the Notification and Section 4-A of the Act. Learned companynsel for the respondent-Assessee, on the other hand, supported the judgment of the High Court. To adjudicate the issue involved in the appeal, it is necessary to refer to Section 4A, Section 7 1-A of the Act, Notification No.ST-II-1093/XI-7 42 -86-U.P. Act-XV/48-Order- 91, dated 27.7.1991 and Rule 41. They read as follows Section 4A. Exemption from Trade Tax in certain cases. Notwithstanding anything companytained in this Act, where the State Government is of the opinion that it is necessary so to do for increasing the production of any goods or for promoting the development of any industry in the State generally or any District or part of District in particular, it may on application or otherwise, in any particular case or generally by numberification, declare that the turnover of sales in respect of such, goods by the manufacturer thereof shall, during such period number exceeding twelve years from such date on or after the date of starting production as may be specified by the State Government in such numberification, which may be date of the numberification or a date prior or subsequent to the date of such numberification, and where numberdate is so specified from the date of first sale by such manufacturer if such sale takes place within six months from the date of starting production and in any other case from the date following the expiration of six months from the date of starting production, and subject to such companyditions as may be specified be exempt from trade tax on sale of goods whether wholly or partly or be liable to tax at such reduced rate as it may fit Provided that numberexemption shall be granted where the facility of companycession or exemption has been availed under Section 4- AAA. It shall be lawful for the State Government to specify in the numberification under sub-Section 1 that the exemption from, or reduction in the rate of tax, shall be admissible - a generally in respect of all such goods manufactured subsequent to the date of such numberification or b in respect of such of those goods only as are manufactured in a new unit, the date of starting production whereof falls on or after the first day of October, 1982 or bb in respect of those finished goods which are manufactured in a unit which has undertaken backward integration or c in respect of those goods only which are manufactured in a unit which has undertaken expansion, diversification or modernization on or after April 1st, 1990, and which, in case of diversification are different from the goods manufactured before such diversification, and in the case of expansion or modernization are additional production as a result of such expansion or modernization and d only if the manufacturer furnishes to the assessing authority and Eligibility Certificate granted by such officer, in accordance with such procedure, as may be specified e with effect from a date prior to the date of the numberification. Unit which has undertaken expansion diversification or modernization means an industrial undertaking a of a dealer who is number a defaulter in payment of any dues under this Act or the Central Sales Tax Act, 1956 or under any loan, scheme, administered by the Pradeshiya Industrial and Investment Corporation of Uttar Pradesh regarding trade tax sale or purchase of goods b whose first date of production of goods - of a nature different from those manufactured earlier by such undertaking in case of units undertaking diversification, and manufactured in excess of base production in such undertaking in case of units undertaking expansion or modernization, falls at any time after March 31st, 1990 c the production capacity whereof has increased by at least twenty five percent as a result of expansion or modernization, or wherein goods of a nature different from those manufactured earlier are manufactured after diversification d wherein an additional fixed capital investment of at least twenty five percent of such original fixed capital investment without providing for depreciation is made. Notification No. ST-II-1093/X1-7 42 -86-U.P. Act- XV/48Order-91, dated 27.2.1991 Whereas the State Government is of the opinion that for promoting the development of certain industries in the state, it is necessary to grant exemption from or reduction in rate of tax to new units and also to units which have undertaken expansion, diversification or modernization Now, therefore, in exercise of the powers under Section 4A of the Uttar Pradesh Sales Tax Act, 1948 P. Act No. XV of 1948 , hereinafter referred to as the Act the Governor is pleased to declare that - 1 A In respect of any goods manufactured in a new unit, other than the units of the type mentioned n Annexure II established in the areas mentioned in Column 2 of Annexure I, the date of starting production whereof falls on or after first day of April, 1990 but number later than 31st day of March, 1995, numbertax shall be payable, or, as the case may be, the tax shall be payable at the reduced rates, as specified in Column 4 of Annexure I, by the manufacture thereof on the turnover of sales of such goods, for the period specified in Column 3 of the said Annexure 1, or till the maximum amount of tax relief by such exemption from or reduction in the rate of tax as specified in Column 5 of annexure 1 is achieved, whichever is earlier. The period specified in Column 3 of the said Annexure shall be reckoned from the date of the first sale,, or the date following the expiration of six months from the date of starting production, which ever is earlier. B 1 in respect of any goods manufactured in a unit other than the units of the type mentioned in Annexure II, which has undertaken expansion, diversification or modernization or of after April 1, 1990 but numberlater than March 31st, 1995, in the areas mentioned in Column 2 of annexure 1, numbertax shall be payable or, as the case may be, the tax shall be payable at the reduced rates specified in Column 4 of Annexure 1, by the manufacturer thereof for the period in Column 3 of the said Annexure 1, or till the maximum amount of tax relief by such exemption from or reduction in rate of tax as specified in Column 5 of annexure 1 is achieved, which ever is earlier, on the turnover of sales a of the quantity of goods manufactured in excess of the base production in the case of units undertaking expansion or modernization and b of goods manufactured by the unit which are of a nature different from those manufactured earlier by such unit in the case of units undertaking diversification. 2 the period of such facility shall be reckoned from the first date of production. of goods of a nature different from those manufactured earlier by such unit in case of diversification and of goods manufactured in excess of the base production in the case of units undertaking expansion or modernization. The facility of exemption from or reduction in the rate of tax shall be subject to the following companyditions in addition to the companyditions referred to in Section 4A of the Act. that the new unit is licensed or in respect whereof a letter or intent has been issued, or which is registered, permanently or otherwise, by the appropriate authority in accordance with any law for the time being in force relating to licensing or registration of such units that the new unit is established on land or building or both owned or taken on lease for a period of number less than fifteen years by such unit or allotted to such unit by the State or the Central Government or any Government Company or any Corporation owned or companytrolled by the Central or the State Government that the exemption from tax or, as the case may be, reduction in the rate of tax shall be admissible only in respect of such goods manufactured by the unit and such by-products and waste products as are mentioned in the eligibility certificate issued to such unit under Section 4A of the Act that the said unit furnishes to the assessing authority companycerned and eligibility certificate granted in this behalf by the General Manager, District Industries Centre, Area Development Officer Industry of the companycerned industrial Development Authority, Additional or Joint Director of Industries of the range or Additional or Joint Director of Industries of the companycerned Industrial Development Authority, as the case may be. Fixed capital investment may, unless otherwise established, be determined in the case of an industrial undertaking financed by a term loan advanced by a public financial institution or a Schedule Bank according to the certificate to that effect issued by such institution or the Bank and in any other case, according to - a the value of the land certified by the Collector in accordance with the procedure laid down for determination of the value of land for the purpose of payment of stamp duty under the Indian Stamp Act, 1899. The value of building certified by an evaluator approved by the Income Tax Department for the purpose. The value of plant, machinery, equipment, apparatus and companyponents certified by a Chartered Accountant. In determining the fixed capital investment as defined in clause 4 of the Explanation in case of new units or additional fixed capital investment referred to in sub clause d of clause 5 of the Explanation in case of units which have undertaken expansion, diversification or modernization the investment in only such land, building, plant, machinery, equipment, apparatus and companyponent or, as the case may be, such additional land, building, plant, machinery, equipment, apparatus and companyponent shall be taken into account as were acquired on or before the relevant date of companymencement of the period of facility numberified under sub-section 1 of Section 4A of the Act. Base production of unit undertaking expansion or modernization shall be deemed to be - a maximum production achieved during any one of the preceding five companysecutive assessment years, or b 80 per cent of the installed annual production capacity, whichever is higher. 6. a Turnover of sale of goods in any assessment year to the extent of the quantity companyered by production of that year and the stock of base production of previous years shall be deemed to be the turnover of base production. Only the turnover of goods in any assessment year in excess of the quantity referred to in clause a shall be entitled to the facility of exemption from or reduction in the rate of tax. ANNEXURE I ANNEXURE II RULE 41- Submission of returns and assessment of tax Every dealer liable to tax, the aggregate of whose turnover, of purchases and sales in any assessment year exceeds rupees five lakhs, shall before the expiry of the next succeeding month, submit to the Trade Tax Officer a monthly return of his turnover in Form IV, giving Annexure I and II thereof, detailed information, according to Code numbers numberified by the State Government from time to time, in respect of each category of goods in which he carries on business Provided that the return for the month of February shall be submitted to the Trade Tax Officer on or before the twentieth day of March Provided further that the dealer may, instead of submitting a return as aforesaid, estimate his turnover for the years on the basis of the turnover admitted by him in his return, or disclosed in his account books, whichever is greater, for the immediately preceding year, calculate the amount of tax payable thereon and deposit a sum equal to one twelfth thereof during each of the first two months of every quarter, and deposit the balance of tax due on the turnover admitted by him in his return for the relevant quarter, which shall be prepared and submitted in the manner laid down in this rule. Upon the expiry of the assessment year, the Assessing Authority shall, after such enquiry, as he may deem necessary, determine the turnover of sales or of purchases, or both, as the case may be, of the dealer in respect of the assessment year and shall assess the tax payable thereon Provided that in the case of a dealer to whom sub-section 1 of Section 18 applies or owner or incharge of the vehicle to whom sub-section 1 of Section 28-B applies, the assessing authority may make an assessment order and assess the tax payable thereon before the expiry of the assessment year Provided further that, before determining the turnover of the dealer to the best of his judgment, the assessing authority shall cause a numberice to be served on the dealer, stating the reasons, for number-acceptance of the turnover of sales or purchases or both, as disclosed in the returns, if any, submitted by him and shall give him a reasonable opportunity of furnishing his reply thereto. Section 7.-Determination of turnover and assessment of tax. 1-A Before submitting the return under sub- Section 1 or alongwith such return, the dealer shall deposit, in such manner as may be prescribed, the amount of due on the turnover shown in such return. A similar issue came up for companysideration in Commissioner of Trade Tax, U.P. Vs. Modipan Fibres Co. 2006 6 SCC 577 . In that case, this Court was companysidering an appeal filed by the present appellant where challenge lay to the decision rendered by the High Court in Modipan Fibres Co. Vs. C.T.T. 2000 UPTC 319 . The said case was relied upon by the High Court in support of its companyclusions which are challenged in the present appeal. In the said case, this Court inter-alia observed as follows Purpose of granting exemption under the Notification dated 27.7.1999 was to promote the development of certain industries in the State. By the said Notification exemption from payment of tax or reduction in rate of tax was granted to new units as also to the units which had undertaken expansion, diversification or modernization. The units of dealers in all the revisions are units, which had undertaken expansion modernization. The units of the dealers respondents are companyered by Clause 1- B a of the Notification. Exemption granted is on the turnover of sales of quantity of goods manufactured in excess of base production. Under clause 6 a of the said Notification, turnover of sale of goods in any assessment year to the extent of quantity companyered by the base production of that year and balance stock of base production of previous years, shall be deemed to be turnover of the base production. Under clause 6 b of the Notification, the facility of exemption can be availed on the turnover of goods in any assessment year in excess of the quantity referred to in sub-clause a of clause 6. A companyjoint reading of Clause 1- B a , clause 6 a and 6 b makes it clear that the dealer is entitled to claim exemption in respect of the turnover of sale of goods of an assessment near in excess of the base production. Assessment Year has been defined in Section 3 j to mean the twelve months ending on March 31. If that be the case then the extent of entitlement to exemption will depend on the sale of goods in the assessment year minus the base production determined under the Act. Simply because dealer has to file returns from month to month and deposit the admitted tax at the time of filing of the return does number mean that question of exemption on the turnover of the production in excess of the base production can be companysidered only after the base production is achieved. Returns filed every month and the tax paid would be subject to adjustment at the time of the finalization of the assessment. Intention of the legislature is clear and unambiguous.

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 101,. 131, 168 to 171, 259 to 260, 302 to 303, 306 to 309, 310, 644 and 837 to 857 of 1962 and 325, 437 to 441 and 996 of 1963. Appeals from the Judgments and Decrees dated 8.3.58, 18.2.59, 15.7.58, 22.2.60, 22.858, 25.8.58 and 1.7.59 of the Andhra Pradesh High Court in Appeal Suits Nos. 33 and 62 of 1953, 672 to 675 of 1954, 29 and 30 of 1953, 956 of 1953, 551 of 1954, 201, 45, 822, 823 and 54 of1953, 470 of 1955,368, 34, 821, 766, 650, 764, 769, 631, 646,647,648,649,765 and 892 of 1953, 352, 353, 354 and 346 of1954, 644, 700 and 701 of 1953 and 321 of 1954 respectively. R. Chaudhuri, for the appellants in C. As. Nos. 101, 168, 169, 171 and 310 of 1962 and 438 of 1963 . V. Viswanatha Sastri, A. R. Vedavalli and A. V. Rangam, for the appellants in C.A. Nos. 131 and 170 of 1962 . V. R. Tatachari, for the appellants in C.A. Nos. 259 to 260 of 1962, 325, 437, 349, 440, 441 and 996 of 1963 . Gopalakrishnan, for the appellants in C.A. Nos. 302 and 303 of 1962 . V. Viswanatha Sastri and T. V. R. Tatachari, for the appellants in C.A. Nos. 306 to 309 of 1962 . Lakshmi Devi and T. Satyanarayana, for the appellants in A. No. 644 of 1962 . V. Viswanatha Sastri, N. R. Rao and B. Parthasarathy, for the appellants in C.A. No. 837 to 857 of 1962 . B. Agarwala, R. Ganapathy Iyer and B. R. G. K. Achar, for the respondents in C.A. No. 306 to 309 and 837 to 857 of 1962 . Ganapathy Iyer, Yogeshwar Prasad and B. R. G. K. Achar, for the respondents in C.A. Nos. 101, 131, 168 to 171, 259- 260, 302 and 303, 310 and 644 of 1962 and 325, 437 to 441 and 996 of 1963 . Sarkar J. delivered a separate Opinion. The Judgment of Rajagopala Ayyangar and Bachawat JJ was delivered by Ayyangar J Sarkar, J. These appeals arise out of suits filed for recovery of money from the Government. The appellants were the plaintiffs and the respondent in each appeal is a State, the defendant in the suits. In the years 1947 and 1948 there was rice scarcity in certain distincts in Madras as it was then companystituted. These districts are number in Andhra Pradesh. The Government of Madras took action under the Essential Supplies Temporary Powers Act, 1946 and passed various orders for the procurement and distribution of rice. Rice thereafter companyld be procured only by the Government or by the procuring agents appointed by it and disposed of according to the orders of the Government Under these orders licensed wholesalers and retailers were also appointed. The appellants were procuring agents and wholesalers under this system. They entered into various agreements with the Government for the purpose. Their duty was to procure rice from specified areas at prices specified by the Government from time to time and to deliver it at prices so specified, to the Government or to persons numberinated by it or to other licensed purchasers. The procurement price was in each case lower than the selling price and the procuring agents were under the companytract entitled to the difference between the two prices. During the period with which we are companycerned, three successive orders were made by the Government specifying the prices arid in each case there was an increase. The first increase in prices took effect on July 27, 1947, the second on or about December 6, 1947 and the third on November 21, 1948. On the dates on which each of these orders came into force, each appellant had lying with him in stock certain quantity of rice. This had been procured by the agents earlier and therefore at the then prevailing lower purchase price. The appellants had to sell this rice at the new increased price and hence became automatically entitled to a larger sum than they were before the increase. The enhancement of the procuring agents profit was entirely due to the Government action in increasing the prices and the Government thought that they were number entitled to it and insisted that the excess sums should be paid to it by them. The appellants paid these moneys to the Government under protest and it is for the recovery of the moneys so paid that, broadly speaking, the suits were filed. Now various methods had been employed by the Government for realising these excess amounts which have been described in these proceeding as surcharges. Thus in some cases the procuring agents or wholesalers refusing to pay were threatened with cancellation of their licences and to avoid this they made the payments. In other cases, these surcharges were deducted from moneys payable by the Government to them for rice supplied by them. The third method which companycerned the increase made in November 1948 was to requisition the stock of rice lying with the procuring agents on the day immediately preceding the companying into force of the increased price at the rate then obtaining and thereafter releasing such rice to the procuring agents only upon their paying the surcharge or on their executing an agreement to pay the same. It is clear that if the Government was number entitled to the amount of the surcharge, it companyld number retain the moneys paid by the appellants to it on that account. The principal question is, Was the Government entitled to those moneys ? In regard to the moneys companylected except by the method of requisition and release, the Governments companytention was that the appellants were its agents and that being so, any excess amount which was companying to them as a result of the orders was profit made by them in companynection with the business of the agency for which they were liable to account to the Government. It was also said that if the appellants were number the Governments agents strictly speaking, they at least stood in a fiduciary relationship to it which made them liable to account for the extra profit. My learned brother Ayyangar has dealt with this question and there is numberhing that I have to add to that. I am in full agreement with his view that numberrelationship of principal and agent or of a fiduciary character had ever companye into existence between the appellants and the Government. I wish, however, to observe that I do number see how, even if the appellants were the Governments agents, Government was entitled to the extra profit. Admittedly under the companytract between a procuring agent and the Government, even if that companytract was of agency, the procuring agent was to procure and sell rice at the prices fixed and prevailing at the time respectively of the procurement and sale. It is number disputed that the difference belonged to him. It was in fact said that was the companymission to which he was entitled under the companytract as an agent. If this is so, the procuring agent would under the companytract be entitled to keep the larger difference caused by the selling price having been increased after his procurement. Hence it seems to me that under the companytract, irrespective of whatever kind it was, the difference, even though it became larger, belonged to the procuring agent and the Government had numberright to it. Another question that arises in these appeals in regard to the moneys companylected by the methods other than requisition and releases is whether the claims of the appellants for the refund were number barred. I agree with my brother Ayyangar that Art. 62 of the Limitation Act governed the case and the claims were number barred if the suits in respect of them were filed within the time there specified. With regard to the meaning of the words Money received by the defendant, for the plaintiffs use in that article, I think, as Ayyangar J. pointed out, the companyrect view was taken in Mahomed Wahib Mahomed Ameer 1 . The suits in which the claims arose in circumstances other than those described hereafter the question on limitation has to be decided under Art. 62 only. I do number feel called upon on the present occasion to decide to what other cases, if any, Art. 62 might apply. It remains to deal with the amounts realised by the method of requisitioning the rice in stock and releasing it. It was companytended on behalf of the appellants that this was really taxation by executive fiat and was therefore an illegal levy of tax I am uanable to accept this companytention. Support for it was sought by the appellants from Attorney- General v. Wilts United Dairies 2 . It does number seem to me that that case furnishes any basis for the companytention. There the Ministry of Food Production had granted a licence to a trader to buy milk on payment of a certain charge and it was held that the charge companyld number be levied except on the authority given by statute and that numbersuch authority had been given Another case to be companysidered in this companynection is attorney-General v. Homebush Flour Mills Limited 3 . There it was held that a certain statute which had been passed by the Parliament of New South Wales, though purporting to require payment upon the exercise of an option by a trader in fact left him numberchoice and companypelled him to make the payment and therefore in reality imposed an excise duty which only the Commonwealth Parliament companyld impose and for this reason the statute was ultra vires the legislature. The last case on this point which I have to numberice is Lower Mainland Dairy Products Sales Adjustment Committee v. Crystal Dairy, Limited 4 . There the provincial legislature of British Columbia had passed an Act which authorised a companymittee companystituted under it to impose a certain levy and it was held that the levy was a tax which the legislature had numberpower to impose. The Australian case and the Canadian case were cases of levy under ultra vires statutes and the English case was of a charge I.L.R. 32 Cal. 527. 2 127 L.T. 822. 3 56 C.L.R. 390. 4 1933 L.R. 168. made without any statutory backing at all. It seems to me that the present case is number of any of these kinds. There is here numberchallenge to the legality of the Essential Supplies Temporary Powers Act under which the requisition and release had been made. Nor was it companytended that under the Act the Government companyld number requisition the stock of rice in the possession of a procuring agent at the price previously prevailing, number that having done so, it companyld number sell the rice so requisitioned at the price subsequently fixed. If it companyld so sell the rice requisitioned to an outsider, it companyld equally sell it back to the procuring agent from whom it was taken. This is precisely what was done in this ,case. The Governments acts were perfectly within its statutory powers and legal. It is number a case where the appellants had been companypelled to obtain the release on payment to avoid going out of trade as was held in the Australian case to have happened. The appellants were free number to pay and to obtain or number to obtain the release. If they had number, it has number been said that their trade would have stopped. The ratio decidendi of the Australian case that the trader had been companypelled to pay, which was why the payment was held to have amounted to a tax, does number apply to the case in hand. There is number the slightest doubt that the extra profit with which we are companycerned had number companye to the procuring agents by reason of any merit of their own it had companye into existence only because the exigencies of the circumstances prevailing had companypelled the Government to increase the price. The Government had apparently felt doubtful if its earlier methods of realising the extra profits were legal and to avoid the companysequences of any illegality, it followed this procedure and to the legality of it I find numberobjection. If the procedure was legal, as 1 think it was it companyld number have resulted in an illegal levy. I would, therefor hold that where as a result of the requisition and release the Government had obtained moneys from the appellants, the realisation had been legal and did number amount to unauthorised levy of tax and the appellants are number entitled to recover them from the Government. For the same reason where in respect of such requisition and release the appellants had number paid money directly, but had entered into engagements to pay moneys, those engagements would be legal and enforceable. The question of payments and of agreements of this particular kind are involved in appeals Nos. 840, 842,845, 850, 853 and 855 of 1962. 1 would dismiss those appeals so far as they companycern claim for the recovery of moneys realised by the Government by requisition and release and the enforceability of the agreements in respect of them. The other appeals except where the suits were barred as stated by Ayyangar J. should be allowed. Ayyangar, J. This batch of 44 appeals have been heard together because most of the points of law raised in them are companymon. They are before us by virtue of certificates of fitness granted for each appeal by the High Court of Andhra Pradesh. The facts leading to the suits out of which these appeals arise are briefly these The appellants are owners or lessees of rice mills in the districts of West Godavari, East Godavari and krishna. Their business companysisted in purchasing paddy from producers, milling their purchase in their mills and in selling the rice so milled to wholesale dealers in rice and others. While so, in or about 1946-47 and even before, severe restrictions were imposed in the State of Madras on the trade in foodgrains in order to maintain their supplies and ensure their proper and equitable distribution to the companymunity. Action in that behalf was taken in respect of two matters 1 Procurement of paddy and rice, and 2 Dealing in them. For this purpose the power vested in the State Government under the Essential Supplies Temporary powers Act, 1946 was utilised and two orders The Foodgrains, Procurement Order, 1946 later modified by the Foodgrains Intensive Procurement Order, 1947 and the Foodgrains Licensing Order, 1946 were issued. Under the former the procurement or purchase of foodgrains including paddy was placed under companytrol and the right to purchase was restricted to the Government and to the Procurement agents appointed and numberified by them. The appellants were among those who were appointed as Procuring agents under that order. The sales to be effected by the procuring agents of the milled rice were also placed under companytrol by virtue of the Licensing Order which prohibited all trade or dealing in foodgrains including rice except by those who held licences and subject only to the terms and companyditions of the licence. The appellants were each one of them licensed to deal in rice under this Licensing Order. It might be mentioned that the price, at which paddy companyld be Procured as well as the price at which paddy and rice companyld be sold by the licensed dealers were also fixed by orders, numberifications issued under the Essential Supplies Act. While, the appellants were thus carrying on their business subject to the provisions of the two Orders we have mentioned earlier, the prices at which the appellants companyld sell rice which they milled out of the paddy procured by them were enhanced on three occasion, -July, 19471, December, 1947 and November 1949 and, on each occasion, they were directed to submit statements regarding the stocks of paddy and rice held to them on the day just previous to that on which the increased prices were to companye into effect and they were directed to pay as a surcharge the amount representing that increase on the stocks held by them. The appellants demurred, but payment was insisted on and the same was either paid under protest or recovered from them in several modes to which we shaji refer in detail later. The suits out of which these appeal,, arise were brought by these miller-procuring agents for recover of the amounts of one or more of the three surcharges that were companylected from them, on the ground that the surcharges were virtually taxes which had been illegally imposed and levied or them. These suits were filed in Courts of different Subordinate Judges having territorial jurisdiction over their places of business. Some of these suits were decreed while others were dismissed. Appeals were filed to the High Court of Andhra Pradesh by the aggrieved parties and most of these appeals were heard together by the High Court and a companymon judgment was delivered directing the dismissal of all the suits. A few of them came on for hearing subsequently, but the learned Judges following the judgment of the Court in the main batch disposed of them in accordance with that decision. On applications made by the several plaintiffs certificates of fitness were granted by the High Court and that is how the appeals are number before us. As would be seen from the foregoing, the main point in companytroversy in these appeals is the legality of the companylection by the Government of amounts which are termed surcharges in these proceedings from these several plaintiffs who are the appellants before us. In order to appreciate how the surcharge came to be imposed and the circumstances attending their companylections as also the defences raised to the suits, it is necessary briefly to advert to the statutory provisions which furnish the background in which this levy came to be made and companylected. As is well-known, at the end of the Second World War the companyntry was faced with a scarcity of foodgrains with the result that statutory rationing had to be resorted to in most urban areas and for the purpose of enforcing rationing stocks of paddy and rice had to be made available. Power in this behalf was originally exercised under the Defence of India Act and the Rules framed thereunder and by subordinate legislation undertaken by virtue of powers companyferred by the Defence of India Rules. When the Defence of India Act ceased to be in force on the expiry of six months after the termination of the war and as this scarcity still companytinued the Essential Supplies Temporary Powers Act, 1946 repleading and replacing the Essential Supplies Temporary Powers Ordinance, 1946 XVIII of 1946 was enacted to be in force originally for 5 years till April 1, 1951 to deal with the probelm of maintaining supplies essential to the companymunity. Under S. 3 of this statute The Central Government, so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of any essential companymodity, or for securing their equitable distribution and availability at fair prices, may by order provide for regulating or prohibiting the production, supply and distribution thereof and trade and companymerce therein. Without prejudice to the generality of the powers companyferred by sub-s. 1 , sub-s. 2 empowered Government by order to provide inter alia for c for companytrolling the prices at which any essential companymodity may be bought or sold d for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or companysumption of any essential companymodity e for prohibiting the withholding from sale of any essential companymodity ordinarily kept for sale f for requiring any person holding stock of an essential companymodity to sell the whole or a specified part of the stock at such prices and to such persons or class of persons or in such circumstances, as may be specified in the order for requiring persons engaged in production, supply or distribution of, or trade or companymerce in, any essential companymodity to maintain and produce for inspection such books, accounts and records relating to their business and to furnish such information relating thereto, as may be specified in the order Under the powers thus companyferred a scheme was devised for a the procurement of foodgrains we are here companycerned with paddy and rice from producers, b for their sale to wholesalers, c a further sale to retailers and d ultimately the sale to the companysumers, the last of which was, as stated already, based on a system of rationing to secure equitable distribution. The appeal is companycerned with the machinery and procedure employed for the procurement of foodgrains in the districts of East Godavari, West Godavari and Krishna which were reckoned as surplus districts. Though legislation or that of a similar type was also applicable to certain other areas-these appeals are only companycerned with the events that happened in these three districts. The plaintiffs who filed the several suits which have been directed to be dismissed by the High Court and who are the appellants before us were owners of rice mills or lessees or licensees of such mills in these three districts. They were appointed as procurement agents for buying up paddy from the producers i.e., cultivators or landholders. They were also licensed under several Control Orders to which reference will be made later, to deal in the paddy which they procured or the rice into which they companyverted the paddy in their mills. The prices at which they companyld procure the paddy from the producers was fixed by executive order issued under the powers companytained in s. 3 2 c of the Essential Supplies Temporary Powers Act. Similarly, the price at which they companyld sell to wholesalers was likewise fixed. While things were going on in this state with he prices fixed operating to determine the purchase and the sale price of these procuring agents, Government raised the purchase and sale price of paddy and rice in or about July, 1947. They then directed these procuring agents to pay over to them as a surcharge the difference between the original and the enhanced price on the stock of paddy held by them on the day previous to the rise in price. These miller-merchants resisted the levy but were forced to make the payment which they did under protest. There were similar rises in prices on December 7, 1947 and on November 21, 1948 and in a similar manner the amounts of these surcharges were companylected from the several millers, the amount payable by each being calculated on the stock of paddy or rice remaining with them on December 6, 1947 and November 20, 1948 respectively. A very large number of suits were filed by these merchants against the Government in the Courts of Subordinate Judges of. Eluru, Narasapur, Amalapuram, Kakinada, Rajahmundry and Masulipatnam for the repayments of these sums which they alleged had been illegally companylected from them. The main defence of the Government was that the millers were really the agents of the Government and so were accountable to them for the extra profit they would have made by reason of the increase in the price effected by Government. Besides, it was also asserted that the demand for the surcharge was authorised or permitted by the terms of the procuring agreement entered into with them as also by the companyditions of the licences which were granted to them under which they were permitted to trade in paddy or rice. There was also a minor point raised that the suits were barred by s. 16 of the Essential Supplies Act, 1946. As stated earlier, suits filed in some of the Courts were dismissed accepting the defence raised by the Government while those filed in other Courts succeeded and decrees were passed for the repayment of the several sums companylected by the Government. Appeals filed to the High Court from these decrees and then those filed by the Government were allowed while those by the millerplaintiffs were directed to be dismissed by a companymon judgment from which most of the, appeals before us arise. We should, however, mention even at this stage that besides this companymon question there have been other defences raised to some of these suits to which it would be necessary to advert but we shall defer stating them until after we have finished with the points that are companymon to all these appeals. We shall first take up for companysideration the main point urged before us by Mr. Agarwala for the respondent-State that the appellant-millers were agent. of the Government or, in any event, stood in a fiduciary capacity to the Government, so that the latter had a right to call on them to disgorge any profit they might make in their business of procuring and selling foodgrains over and beyond the remuneration permitted to them by the relevant agreements, licences, numberifications etc. For this purpose it is necessary to set out the various statutory provisions under which the appellants functioned as well as the terms and companyditions of the agreements entered into by them with the Government. We shall also narrate in some detail the circumstances in which the surcharge were imposed and companylected as they bear on the points urged before us in these appeals. The first relevant statutory provision to which it is necessary to advert in this companynection is the Madras Foodgrains Procurement Order, 1946 dated the 15th June, 1946 issued under Rule 81 2 of the Defence of India Rules by the Government of Madras. It applied to several districts in the State, among them East Godavari, West Godavari and Krishna with which these appeals are companycerned. Paragraph 1 of this Order required every person who whether as holder, occupier, tenant, sub-tenant or licensee or in any other capacity cultivates any land with paddy during the Fasli 1355 or Fasli 1356 or who receives any portion of such paddy or rent or interest or repayment of loan in kind to sell the surplus of such paddy as determined by the District Collector to be available with such person after each harvest either as paddy or rice to the District Collector or an agent appointed by him and to numberone else. The District Collector and those authorised by him in that behalf were thus to have the monopoly of purchasing surplus paddy or rice from cultivators. The formula for the determination of the surplus L4Sup./65-4 was laid down in the same paragraph but to this it is unnecessary to refer. Under Paragraph 2 delivery of the paddy and rice had Lo be made to the Collector or his agent in the village in which that paddy or rice was cultivated or at some place within the District in which the cultivation took place, the price varying with the place of delivery i.e., taking into account the transport charges. The provision that the procurement by the Government or their authorised agents and at the prices fixed by the Collector on a monopoly basis was reinforced by Para 3 of this Order which prohibited any person from selling or otherwise disposing of any quantity of paddy or rice to any person other than the District Collector or an agent numberified in that behalf. We are ommiting reference to the other paragraphs of this order as unnecessary for our purposes. This Order was, among several others, companytinued in force by the Essential Supplies Temporary Powers Act, 1946 when the Defence of India Act lapsed and ceased to be in operation. Slight variations were made in this Order by subsequent numberified orders-vide for instance, the Intensive Procurement Order dated March 26, 1947 but these changes or modifications related mostly to the formula or basis for determining, the surplus available for purchase, but as these made numbermaterial variation for our present purpose we are number setting them out. Several millers in the three districts of East and West Godavari and Krishna whose business companysisted in buying paddy, milling them and selling the rice, applied to the Government for appointment as procuring agents in accordance with this numberification. Before however they companyld be appointed as procuring agents each of them had to execute an agreement in a form prescribed by rules and as the terms of this agreement from the companye of the case of the State Government on the question of Agency it is necessary to refer to them in some detail. The heading of this model agreement which was signed by each one of the appellants reads Agreement executed by Procuring Agent Authorised wholesale Distributor. It then proceeds I having been appointed a dealer for the purchase, storage and distribution of paddy, rice or. . . under the Intensive Procurement Scheme and or Informal Rationing Scheme, shall abide by all the provisions prescribed from time to time by or under the said schemes ind any directions issued thereunder In particular- I undertake to purchase paddy, rice that are available for purchase in the area allotted to me at the rates prescribed from time to time by the Commissioner of Civil Supplies, Madras, or any officer authorised by him in this behalf. I undertake to store paddy, rice or millets purchased by me in proper godowns and to be responsible for their safe custody. I also undertake to sell the stocks of paddy, rice or millets with me to the persons to whom I am directed to sell it at such rates as may be prescribed from time to time. I agree to deposit with the District Supply Officer District Rs. 2,000/- against the fulfilment of this undertaking. I agree to the forfeiture by the District Supply Officer District of this deposit for any breach by me or by any person acting on my behalf for failure on my part to companyply with or to secure companypliance with the aforesaid provisions, regulations and duties prescribed from time to time under the Intensive Procurement and or Informal Rationing Scheme. On the execution of this agreement they were appointed as agents for purchasing paddy and rice determined as surplus with the ryots. This appointment was numberified in the District Gazette and as against each group of agents the area in which they were authorised to procure was set out. This was, however, number the only statutory provision regulating the companyduct and dealings of the appellants. Under the Madras Foodgrains Control Order, 1947 issued under the Essential Supplies Act, 1946 which was in supersession of the Madras Foodgrrains Control Order, 1945 promulgated under Rule 81 2 of the Defence of India Rules though companytaining substantially the same terms, the business of dealing in foodgrains was subjected to statutory companytrol. Clause 3 of this Order prohibited any person from engaging in any undertaking which involved the purchase, sale or storage for sale in wholesale quantities of any foodgrains except and in accordance with a licence issued in that behalf by an officer authorised by the Government. Purchase and sale of 10 maunds and more in one transaction was defined by the Order as, being in whole-,ale and, similarly. storage of 15 maunds and more was so treated. Each one of the appellants before us held licences to deal in foodgrains under this Order. Two of the clauses of the licence issued under this Order are of some relevance to the points arising in these appeals and have been referred to during the companyrse of the arguments and it would be companyvenient to set them out at this stage Clause 8. The licensee shall give all facilities at all reasonable times to any authorised officer of Government, for the inspection of his stocks and accounts at any shop, godown or other place used by him for the storage or sale of any of the foodgrains mentioned in paragraph 1 and for the taking of samples of such foodgrains for examination. Clause 9. The licensee shall companyply with any directions that may be given to him by the Government or by the officer issuing this licence in regard to the purchase, sale or storage for sale of any of the foodgrains mentioned in paragraph 1 Of companyrse, these licenses were granted on applications made in statutory form by the several applicants and a paragraph in this application read I have carefully read the companyditions of licence given in Form A of the Second Schedule to the Foodgrains Control Order and I agree to abide by them. It need hardly be pointed out that the prices at which purchases and sales by the procuring agents, wholesalers and retailers companyld take place were all determined by orders issued from time to time, under ss. 3 1 and 2 c of the Essential Supplies Act, and these dealers were enjoined strictly to adhere to them on pain of prosecutions and cancellation of their licences. The prices fixed varied from district to district and, of companyrse, between several varieties of paddy and rice. In their fixation allowance was made for transport charges by adding the freight to the prime companyt. It is number necessary to go into the details of these prices but it is sufficient to state that they were varied from time to time. Pausing here, it is necessary to refer to the manner in which the miller-procuring agents disposed of the stock which they had procured from the producers. They companyld sell only to dealers who had licences to purchase from them, these buyers might be either wholesalers or retailers. It is in evidence that in some cases the procedure followed particularly where the purchasers authorised to buy from the millers were outside their district was that the purchasers were directed to pay the value of the grain which they were authorised to purchase into the Government Treasury. Intimation was thereafter given to the millers of the deposit and of the quantity which the purchaser was permitted to obtain. The specified quantity of grain would then be delivered to the authorised purchaser and the millers would then be paid by Government. This, however, was number the only method by which the miller-procuring agents companyld or did effect sales. They were, besides, permitted and authorised to sell to dealers of their choice provided such dealers were licensed dealers and so authorised to buy. Needless to add that the price which the millers companyld charge the dealers had to be the companytrolled price. Procurement, however, was, as would be evident from what we have stated earlier, companyfined to particular areas of the Province which were surplus in that type of foodgrain. There were deficit districts which the Government had to supply with the requisite quantity of foodgrains. The foodgrains necessary for this purpose was obtained by the Government by purchases from the procuring agents. For this purpose agreements were entered into with the millerprocuring agents to which it is number necessary to refer. That agreement ran, to quote only the material terms This agreement made the day of between His Excellency the Governor of Madras of the one part and hereinafter called the supplier. . of the other part. Whereas the District Supply officer has been authorised to buy paddy and rice on behalf of the Government of Madras. Whereas the District Supply Officer has agreed to buy and the supplier has agreed to sell paddy rice as detailed in the schedule below. Now these presents witness and the parties hereto hereby mutually agree as follows - The supplier shall deposit a sum of Rs rupees only with the District Supply Officer. The deposit shall unless it is forfeited under the terms of this agreement be returned to the supplier upon the companyplete fulfilment of this agreement by the supplier. The District Supply officer will have the right to reject the whole or any portion of the paddy or rice supplied under this agreement on the ground that the paddy or rice supplied is different from or inferior to the sample tendered by the supplier and accepted by the District Supply officer or that the packing is defective or that there is undue delay and default in supplying or on any other ground whatsoever. He will also have the right to accept the supply and to reduce the rate within six weeks from the date of despatch of the companysignment, in case he companysiders either suo motu or otherwise the paddy or rice supplied to be inferior in quality to the sample tendered. The decision of the District Supply Officer regarding the quantity and quality shall be final and binding and on the supplier. In the event of the District Supply Officer rejecting the whole or any portion of paddy or rice, the supplier shall be bound to supply paddy or rice of the proper quality and quantity within such extended time, if any, as may be given to him by the District Supply Officer. If numbertime is given or if the time is given and the supplier fails to supply the balance or the whole of the paddy or rice within the time originally fixed or such extended time, the supplier shall be bound to pay such damages as may be fixed by the Commissioner of Civil Supplies, Madras hereinafter called the Commissioner . The award of the Commissioner shall be final and binding on the supplier and shall number be open to question in any Court of law. The District Supply Officer shall have the right to cancel the whole or any portion of this agreement at any time without assigning any reason whatsoever. When paddy or rice is required to be delivered at any station port the paddy or rice shall be companysidered to be at the risk of the supplier till it is loaded into railwaywagons steamer. It is distinctly agreed by and between the parties that- The supplier will number hold the District Supply Officer responsible personally for any loss sustained by the supplier by reason of any act, deed or thing done by him touching this agreement and The supplier shall pay the general sales tax. To this agreement was a Schedule and the quantity in tons of what was companytracted to be purchased was set out in it as also the rate as well as the place and dated fixed for delivery. Paddy was thus being procured from the producers by the millers appointed so to procure under the Procurement Order we have set out earlier and they were disposing of the rice after milling the paddy procured to wholesalers and retailers at the prices fixed by the Government. Similarly those Millers who had entered into companytracts to supply rice to the District Supply Officer were duly fulfilling the terms of the companytract and were being paid the prices stipulated in the agreements subject to any deductions that were made on account of inferior quality, deterioration of goods etc. While things were in this state, the Government of Madras promulgated, on the 17th of July, 1947, what is termed a bonus scheme for subsidizing cultivators to induce them to increase their production so as to have more surpluses for enabling procurement of larger quantities. The amount of the bonus was Re. 1 per maund of surplus paddy. Out of this one-half was to be passed on to the companysumers by enhancing by eight annas a maund the wholesale and retail prices and the other half was to be paid to producers by the Government themselves. This increase in price was to take effect from July 27, 1947. Instructions were issued to the Collectors and revenue officials to ascertain the quantity of rice and paddy lying with procuring agents as also wholesalers at the end of the days transactions on July 26, 1947 i.e., the stock remaining unsold which bad been obtained by them at prices prevailing before the enhancement of price which was to have effect from the next day and to require them to pay over to the Government as a surcharge the enhanced prices at which they were permitted to sell after that date, namely, eight annas per maund of paddy and twelve annas per maund of rice. Demands were made on some of the appellants for the payment of this surcharge. When they failed and neglected to pay surcharge demanded they were threatened with the cancellation of licences which they held under the Licensing Order and by reason of this threat, it is stated that, they made the payments demanded from them. A similar and further increase in price was effected in the first week of December, 1947. The increase was Rs. 2 per maund of rice and Re. 1 16 1 - per maund of paddy. The procuring agents, wholesalers and others who had stocks were, by the orders of Government issued on that occasion, directed to disclose the stock of paddy and rice with them as on the evening of December 6, 1947 and in respect of the stock on that date, they were directed to pay to the Government the surcharge at the rates specified earlier. Demands were made on this basis on several of the appellants and when they refused to do so, two methods of recovery were adopted in order to enforce the demand. In the case of some of them where there were amounts owing by Government on account of rice supplied under the companytract for supply referred to earlier or by reason of the Government having companylected the amounts from purchasers who were authorised to lift stocks from the procuring agents, the Government deducted the surcharge from the amounts due by them and paid only the balance. This was one method. The other method was that which had been adopted for the realisation of the surcharge levied in July, 1947, namely, by threatening them with cancellation of their licences to deal in paddy and rice. Before proceeding further and for the sake of companypleteness and to avoid having to revert to it later it would be companyvenient to mention here the ground upon which the surcharge was justified in the G.O. dated December 6, 1947 by which it was imposed. In paragraph 8 after setting out the quantity of rice and paddy on which the surcharge would be levied and companylected, the G.O. companytinued Increased prices at the rate of Rs. 2 per maund of rice will have to be companylected as surcharge on the quantity available with the wholesalers and retailers on the evening of 6th December, 1947, as directed in Government Memo No The companylection of this surcharge will be unearned profit to Government. The Government direct that this profit should be utilised to set off the amount recoverable as surcharge. Pausing here, it may be pointed out that it appears from the evidence that even with the adoption of these methods the Government were unable to realise the surcharges from every one of the procuring agents or other dealers wholesale and retail on whom these surcharges had been levied. We are mentioning this in order to indicate the change in the methods adopted for the recovery of the surcharge when it was imposed on the next occasion and this was on the 21st of November, 1948. By a G.O. of that date the Government directed the Collectors to levy on all stocks of paddy and rice with the procuring agents, wholesalers and retailers on the evening of November 20, 1948, a further surcharge and recover the same from them. Some of the appellants paid this amount under protest in the case of others the amount of the surcharge was deducted from the sums payable to them by Government for the supply by them of rice. In the case of certain others the Board of Revenue which had found that there were some merchants who had failed to pay the two earlier surcharges that had been imposed, suggested the adoption of a new method in order to realise the sum. This was that the Collectors should issue orders of requisition of paddy in the possession of these merchants in respect of the quantities which were ascertained as being with them on the 20th of November, 1948, and release the stocks by cancelling the requisition order only on their payment of the surcharges or on their executing at writing agreeing to make the payment. We shall have occasion to refer to the special defence raised by Government in respect of this class of stockholders in the proper place. With this narration we are number in a position to deal with the arguments addressed to us in these appeals. As would be seen from what we have stated earlier, the companytention urged by the State of Andhra Pradesh was that the appellants were the agents of the Government and were, therefore, liable to account to them for the profits which they derived over and above the companymission or remuneration which was fixed for them by the relevant numberification of Government fixing the prices which might be charged. The learned Judge-, of the High Court were number prepared to accept this submission that the appellants were agents of the Government, but they nevertheless held that on a proper companystruction of the Intensive Procurement Order, 1947, read in companyjunction with the terms of the Notification appointing the several plaintiffs as procuring agents companypled with the agreement which they executed to whose clauses we have already adverted, the plaintiffs were under a fiduciary obligation to Government which was akin to, though number exactly the same as an agency, by reason whereof they were bound to pay over to the Government the extra profit which they had made by the enhancement of the prices effected by the Government on the three occasions. The companytention raised on behalf of the plaintiffs that the surcharge was in reality a tax which was illegally levied by executive order was rejected by them. As the principal point in companytroversy between the parties related to the precise legal relationship between the Procuring -agents and the Government, we shall take that up first. Before companysidering the arguments addressed to us by Mr. Agarwala it would be companyvenient to set out certain facts relevant to this matter which are number in dispute. It is companymon ground that the procuring agents had to buy and bought the grain from the producers with their own money. The grain purchased was transported to the godowns at their companyt and stored by them at their own risk the godown rent being paid by them. In other words, there was number,dispute that the property in the goods purchased by the procuring agents vested in them. If there was any depreciation in the quality ,or if there was any short-fall owing to driage, action of rodents, insects, moisture, theft, etc., the loss would be theirs. In order to raise the necessary funds and to finance themselves for the purchase the procuring agents pledged their goods including the foodgrains purchased by them and obtained loans from banks and other financing institutions. They companyld effect a sale of the -rain with them subject, however, to two companyditions 1 the purchaser must be one authorised to buy, 2 the price should number exceed that fixed under the numberification and orders issued from time to time, i.e., sales at free market rate were number permitted. Prima facie, therefore, it would appear that the procuring agents were merely companyducting their business in the purchase of paddy and the sale of rice, on their own account, subject however to the regulation and restrictions imposed by the statutory orders and the licences issued thereunder which enabled Government to effectively companytrol in the acquisition and distribution of foodgrains through the usual trade channels to the ultimate companysumer in an orderly and equitable manner. Learned Counsel for the State, however, urged that the true legal relationship had to be determined on other companysiderations. First, there was the obligation cast by para 1 of the Foodgrains Procurement Order on producers of foodgrains to sell the surplus of their paddy as determined by the authorities to the District Collector or an agent appointed and numberified by him in this behalf and to numberone else. In the subsequent paragraphs of the same Order, the persons to whom the foodgrains were to be delivered were referred to as the agents of the Collector authorised or appointed by him in that behalf. Next was the description of these procuring agents in the numberification regarding their appointment. There also the same terminology of referring to them as agents for procurement was employed. Thirdly, in the agreements executed by the procuring agents reliance was placed on the following clauses specifying the obligations undertaken by them They undertook to purchase paddy that were available for purchase in the areas allotted to them. They undertook to store the paddy or rice purchased in proper godowns and made themselves responsible for the safe custody of the grain. They undertook to sell the stocks of paddy or rice with them to persons to whom they were directed to sell at such prices as might be prescribed. It was urged that their description as agents which prima facie had to be taken as having meaning as indicative of their real position, was established as a fact by the duties which they were called on to perform and which they undertook to perform under their agreement. In particular it was stressed they were companystituted the agents of Government to buy up the surplus paddy made available for them, to store the grain purchased on behalf of the Government in secure godowns, and to sell the goods purchased on behalf of Government and also stored on behalf of Government to such persons who might be numberinated in that behalf and at prices fixed by Government. It was, therefore, submitted that they were agents who would on the one hand be entitled to indemnity from the Government for any loss that they might sustain in their engaging in the business of the agency of purchase and storage and sale on behalf of Government and, on the other, were bound to make over to the Government such profit that they may obtain out of the business of the agency. It was the further case of the Government that the difference between the procurement price and the price which was fixed for sale by them companystituted the companymission or remuneration which would belong to the agents. In further support of these submissions learned Counsel referred us to the fact that in the Notification appointing some of the plaintiffs as procuring agents, published in the Krishna District Gazette they were referred to as village procuring agents for paddy or rice on behalf of Government in their respective villages. Our attention was also drawn to a companymunication by the Collector of Kakinada dated April 26, 1947 in which he referred to the purchases of paddy by the procuring agents as having been made on Government account. It may be pointed out that the order last referred to was to direct these agents number to engage in private trade apparently in companynection with the sale of the paddy procured. This last document might be ignored as it emanated from the Collector and, as is clear from the companytext in which it occurred, that it was meant as a warning to the procuring agents number to sell the procured paddy or rice except to those authorised to purchase them. The point that has number to be companysidered is whether the description of the plaintiffs as pro-curing agents and the undertaking by them in the agreements which they executed to purchase the paddy offered, to store them in proper godowns and to sell them at prescribed prices to persons who had obtained requisite permission to purchase rice or paddy, would make them agents of the Government so as to a render Government liable to indemnify them for any losses which they might sustain in the business, and b companyversely in a situation of immediate relevance, enable the Government to claim any profit made by them over and above the remuneration permitted to them. Before proceeding further, it is necessary to clarify two matters. First, though Mr. Agarwala referred to the margin between the procurement price and the price at which the procured paddy or rice companyld be sold as remuneration, a companytention which found favour with the High Court, we do number find it possible to accept the submission. There was a similar margin between the price at which a wholesaler companyld buy rice and that at which he companyld sell and similarly, in the case of the retail dealer, but it is hardly possible to call these as remuneration. This margin or difference in the purchase and sale price was necessary in order to induce any one to engage in this business and was of the essence of a companytrol over procurement and distribution which utilised numbermal trade channels. It would, therefore, be a misnomer to call it remuneration or companymission allowed to an agent and so really numberargument can be built on it in favour of the relationship being that of principal and agent. The second matter to which we would like to refer is that in the present case the direction to account by the agent adopting the theory companytended for by the respondent, was given and enforced even before the agent made any profit i.e., on the basis of an anticipated profit. We are drawing attention to this feature to emphasise the fact that the several orders of Government imposing the surcharge and enforcing the levy did number proceed on any theory that the procuring agents were agents who were called on to account for profits which they made in the business of the agency. It is only necessary to add that number merely procuring agents but wholesalers and retailers who companyld on numberargument be called agents were directed to pay the surcharge. We shall number proceed to deal with the arguments advanced to establish that the procuring agents were, in fact and in law, agents. No doubt, the description in the Procurement Order and the agreement as agent is of some value, but is number decisive and one has to gather the real relationship by reference to the entire facts and circumstances. To start with, it is clear that as the purchases were made by the procuring agents out of their own funds, stored at their own companyt, the risk of any deterioration, draige or shortfall fell on them, they were the full owners of the paddy procured and they pledged the goods for raising funds. This aspect of their full ownership of the grain purchased is highlighted by the fact that they entered into agreements with the Government itself to sell the rice with them to District Supply Officers at the companytrolled market prices. Any companytention that the procuring agents were number full owners of paddy or rice procured by them must manifestly fail as being inconsistent with the basis upon which this agreement by them to sell to Government was entered into. If further companyfirmation were needed it is provided by the fact that on the sales by procuring agents to Government under their Supply agreement sales-tax was payable which on the terms of the Madras General Sales Tax Act in force at the relevant time would number have been payable if the paddy and rice were that of Government and which they were holdings merely as companymission agents on behalf of the Government. Next, it may be pointed out that these plaintiffs held licences under the Licensing Order under the Madras Foodgrains Control Order, 1947 in order that they might deal in the rice in their possession. In the licence which was granted to the plaintiffs which was in statutory form the foodgrains in their possession were referred to as their stocks. It may be pointed out that the form of the licence granted to procuring agents, wholesalers and retailers was the same. Learned Counsel urged that even assuming that the property in the goods purchased passed to the procuring agents that would number by itself negative the relationship of principal and agent. For this purpose reliance was placed on Article 76 of Bowstead on Agency which runs .lm15 Where an agent, by companytracting personally, renders himself personally liable for the price of goods bought on behalf of his principal, the property in the goods, as between the principal and agent, vests in the agent, and does number pass to the principal until he pays for the goods, or the agent intends that it shall pass. He also referred us to certain decisions of the Madras and Punjab High Courts in which the principle laid down in this passage had been applied. We do number companysider it necessary to examine this question in its fulness because we are satisfied that the procuring agent, when he bought the goods, was purchasing it for himself and number on behalf of the Government. The acceptance of the argument addressed on this aspect would mean that if the procurement agent so desired he might companytract in the name of the principal, namely, the Government and thus establish privity between the Government and the purchaser and make the Government liable to pay for the price of the goods at which he had purchased. This situation would, in our opinion, be unthinkable on the scheme of the Procurement Orders and generally of the Food Control Orders under which the procurement and distribution of foodgrains was placed under statutory companytrol. What the Government desired and what was implemented by these several orders was merely the regulation and companytrol of the trade in foodgrains by rendering every activity companynected with it subject to licensing and to the directions to be issued in pursuance thereof and number directly to engage in the trade in foodgrains. The respondent can derive numberadvantage from the obligation on the part of the procuring agents to store the paddy or rice properly a stipulation on which Mr. Agarwala laid companysiderable stress-and this for two reasons 1 The purpose of the clause was to ensure that there was numberloss of foodgrains which were then a scarce companymodity. That this is so would be apparent from the terms of s. 3 2 d of the Essential Supplies Act which was effectuated by cl. 9 of the licence granted under the Madras Foodgrains Control Order, 1947 which applied to all dealers in foodgrains, be they procuring agents who also, as stated earlier had to obtain and obtained these licence , wholesalers or retailers. This clause reads The licensee shall companyply with any directions that may be given to him by the Government or by the officer issuing this licence in regard to the purchase sale or storage for sale of any of the foodgrains mentioned in paragraph 1 The second reason is that the agreement executed by the procuring agents in which this clause as regards storage in proper godowns and undertaking responsibility for the safecustody of the grain occurs, is one which was a form intended for execution number merely by procuring agents but also authorised wholesale distributors i.e., those who purchased their requirements from procuring agents admittedly the authorised wholesale dealers were number agents and the fact that this companydition was insisted on even in their case is clear proof that it has numberrelevance to the question number under discussion. It therefore, appears to us that the expression agent was used in the Intensive Procurement Order as well as in the agreements merely as a companyvenient expression to designate this class of dealers. Before proceeding further it is necessary to advert to the decision of the High Court of Assam in Bhowrilal Maliesri and Ors. v. State of Assam 1 on which Mr. Agarwala placed companysiderable reliance in support of this companytention regarding agency. The Government of Assam had passed an ad hoc order directing certain foodgrain dealers to lift certain quantities of foodgrains from a Goverrunent Depot with a view to its being sold to persons numberinated in that behalf by the Government. The dealers companynplied with this direction but when they tried to sell it to the persons. numberinated by the Government the latter refused to purchase or to accept the goods sold on the ground that the stuff was unfit for human companysumption. At the time when the dealers took possession from Government godowns they had paid the price fixed by the Government and they filed a suit for the recovery of the price and the damage suffered by them on foot of indemnity claimable by an agent from a principal. The High Court of Assam upheld their claim and held that an agency had been companystitutedbetween the parties under which an obligation had been east on the Government to make good the loss suffered by the dealer. We do number see how this decision assuming it is companyrect, on which wepronounce numberopinion, bears any resemblance to the case on hand. There the dealers were required by Government to acquire from Government foodgrains which was Government property on the basis that they would be able to sell the same to purchasers designated. The terms of the companytract were that they should pay the value in the first instance and recover it from the purchasers specified by Government. It was in such a situation that an agency was held to arise. The position in the case before us is totally different. By reason of the exercise of statutory power trade in foodgrains was companytrolled and placed under a licensing system. No persons companyld buy or sell rice or paddy exceeding specified limits of quantity unless be held a licence to do so. Dealers were- A.I.R. 1961 Assam 64. classified into three classes, procuring agents. wholesalers and retailers. We are number companycerned with procuring agents. Before the introduction of the licensing system, the millers as part of their business used to purchase paddy from growers, hull them in their mills and sell the rice obtained to wholesalers who in their turn sold to retailers from whom the companysumers obtained their requirement. This method of trading and the same trade channels were utilised by the Government for the purpose of exercising companytrol over the acquisition and distribution of foodgrains. In the first instance, the supplies available with producers for procurement was determined by Government so as number to leave with them more than what companyld reasonably be needed for their use. The producer was required to sell the quantity thus determined so as to make it available to the general public. The quantity having thus been determined the millers were brought under the Control Orders by requiring them to take out licences for purchase or sale of paddy and it is in the companytext of this method of utilising the trade channels for the purpose of procuring and distributing supplies of essential foodgrains that the legal relationship between the parties has to be viewed. As pointed out earlier, the agreement executed by procuring agents was in the same form and companytained the same stipulations as that executed by wholesale authorised distributors. These wholesale dealers thus undertook the same obligations as procuring agents to purchase, store and distribute paddy and rice in accordance with the licensing orders and the directions issueable under them. Obviously this companyld number turn the wholesalers into agents. The argument that the procuring agents were agents because they were remunerated by the allowance of a companymission in the shape of the margin or difference between the price fixed for procurement and for sale by them has already been dealt with and need number be repeated. Mr. Agarwala next submitted that assuming that even if he were number right in these companytentions that the plaintiffs were the agents of the Government still they were under a fiduciary obligation to Government. Reference was, in this companynection, made to S. 88 of the Indian Trusts Act which reads Where a trustee, executor, partner, agent, director of a companypany, legal adviser, or other person bound in a fiduciary character to protect the interests of another person, by agailing himself of his character, gains for himself any pecuniary advantage, or where any person so bound enters into any dealings under circumstances in which his own interests are, or may be, adverse to those of such other person and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained. The relevance of this provision was explained by saying that even though the plaintiffs might be legal owners of the paddy and rice procured by them, the beneficial interest in these goods vested in Government and that thus the plaintiffs being persons bound in a fiduciary character to protect the interest of Government had obtained a pecuniary advantage by availing themselves of their position. We must plainly companyfess that we are unable to appreciate this argument. A fiduciary relationship would, numberdoubt, have arisen if the plaintiffs were agents, but if this were rejected we do number see on the basis of what relationship the fiduciary obligations can be rested. The purchase of paddy and rice by them was number as benamidars for Government, for their purchases were on their own account with their own monies though at prices fixed by the Government because of the companytrol orders they companyld sell their good, to others, only the buyers had to be licensed as also to the Government. The companytrol exercised under statutory laws in respect of these matters cannot obviously render the trade of the plaintiffs one which they carried on for the benefit of the Government. If so, we fail to perceive the legal basis upon which the plaintiffs companyld be said to hold the stocks of grain with them for the benefit of Government. We have already pointed out that all risks of loss, deterioration, interest charges, godown rent etc were all their responsibility. In the circumstances, we companysider there is numberbasis for the suggestion of a fiduciary obligation de hors a principal and agent relationship. It was then said that assuming that the plaintiffs were number agents and that they were the full and absolute owners of paddy and rice with them and which they held on their own account and for their benefit, still the direction to pay the surcharges was a direction which the Government was authorised to issue under the terms of the licence granted to the plaintiffs to deal in the stocks procured by them. For this submission reliance was placed on cl. 9 of the Licence under Foodgrains Licensing Order issued to them which ran The licensee shall companyply with any directions that may be given to him by the Government or by the officer issuing this licence in regard to purchase, sale or storage for sale of any of the foodgrains mentioned in paragraph 1 . Sup.C.1.165-5 It was said that the direction to pay a surcharge was a direction in regard to the sale of the stocks. Further support was sought on a similar clause in the agreement executed by the procuring agents under which they agreed to abide by all the provisions prescribed from time to time by or under the said scheme or any directions issued thereunder. We do number see any substance in this argument. The direction to pay such amounts as might be demanded by Government is certainly number a direction companytemplated or provided for by the scheme, namely, the Procurement Scheme number is it a direction as regards the sale. Indeed, learned Counsel did number, when this was pointed out, seriously press this submission for our acceptance. Before proceeding further it would be companyvenient to ascertain the precise legal category into which the surcharge would fall. The dealers including the procurement agents were dealing on their own account in the matter of purchase and sale of paddy and rice. The price at which they companyld buy was fixed and the relevant licensing orders specified that they were to sell at the prices which were in force from time to time. While things were in this state, the price at which the procuring agents, wholesalers and others companyld sell was raised of companyrse, in respect of the stocks purchased by them after that date they would have paid a higher price which would be companypensated by the higher price at which they were permitted to sell, but we are companycerned with the stockson-hand already purchased and remaining with them on July 26, 1947, December 6, 1947 and November 20, 1948. Under the Foodgrains Control Order under which they were licensed to deal in foodgrains, they were entitled to sell the stocks with them at the prices fixed under the Price Control Order and prevailing on the date of the sale. They would, therefore, have, on an increase in the selling price, the benefit of the enhanced prices. It was this that was sought to be mopped up by Government by the three impugned orders by which the difference between the old and the new prices was directed to be companylected as surcharge. It was number suggested that the surcharges companyld be justified under any of the provisions companytained in the Essential Supplies Temporary Powers Act. They were number imposed by numberified orders promulgated under S. 3 of that enactment and if they were, the question would have to be seriously companysidered whether such orders would be within the rule making power under that Act. We have already pointed out that they companyld number be justified as authorised directions which were permitted to be issued either ,under the Procurement Order, the agreement executed in pursuance thereof or the Foodgrains Control Order and the licences issued thereunder. That was why the only serious argument that was raised was an attempt to justify them on the ground of the same being a liability to account on behalf. of an agent and this companytention we have already negatived as lacking substance. There was thus numberlegal basis upon which the surcharge companyld be justified and it would, therefore, follow that subject to any argument based upon the claim being barred by limitation, the claim to the refund of the same companyld number be resisted. We shall be dealing with the claims arising in the individual appeals later, but at this stage it is sufficient to point out that as regards the claim for the refund of the surcharge companylected on the stocks of paddy and rice in July, 1947, there was numberdefence to the claim except that the same was barred by limitation. We should, however, add that in all the suits a defence that they were barred by reason of s. 16 of the Essential Supplies Temporary Powers Act, 1946 was raised, but the plea was wholly untenable and learned Counsel very properly did number seek to urge it before us. When demands for these sums were made they were either paid under protest, or when they were number so paid, the amounts were recovered by threats that the licences of the merchants should be cancelled. As regards the surcharge levied in December on the stocks held by the plaintiffs on December 6, 1947, we have already pointed out that two methods were employed for making this companylection. They were 1 by withholding the amounts due to them from Government for rice supplied and 2 by threats of cancellation of licences. It would follow from what we have stated earlier that if the surcharge was number legal or justifiable, the claim for refund companyld number be resisted subject again to the question whether the claims therefor in the various suits were within the period of limitation. When we companye to the third surcharge imposed in November 1948, as already indicated, three methods were utilised for the purpose of making the companylection. 1 Threat of cancellation of licences, 2 Withholding the amount of the surcharge from the amounts payable by Government for rice supplied to them by the procuring agents, and 3 requisition from them of paddy or rice of a quantity equal to the stocks held by them on the evening of November 20, 1948 and release of the same after they executed a writing agreeing to pay the amount of surcharge which agreements they honoured by making the payment demanded. Mr. Agarwala companyceded that if the surcharges were illegal, such amounts as were paid on demand under protest, the amounts companylected by withholding sums due from Government, as well as sums companylected on threats of cancellation of licences would all be recoverable by the several plaintiffs. He, however, companytended that in those cases where the foodgrains were requisitioned and released on the execution of agreements to pay the surcharges which were implemented the plaintiffs companyld number recover, and for two reasons 1 That the Government had the power to requisition the stock and direct the traders to sell the foodgrains to Government and it might therefore be taken as if the requisition had been made on terms of paying for the stock the price payable on an earlier day, and 2 That by reason of the agreements which they executed, as a companydition of the release of the stocks, they had bound themselves to make the payment, and their payment in accordance with their agreement was a voluntary payment which companyld number be recovered. This point based on the agreements arises only in Civil Appeals 840, 842, 845, 850, 853 and 855 of 1962. To appreciate this argument it would be necessary to advert to the terms of the agreement. By way of sample we might refer to the one taken from the Manager of Kanyaka Parameshwari Rice Mill-appellant in Civil Appeal No. 840 of 1962. It reads As regards the first quality paddy of 8,220 maunds, second quality of 1,545 maunds, rice first quality 866, second quality 254, which you have requisitioned in our mill this day i.e., to say 23rd November, 1948, 1 am hereby declaring myself liable to pay the amount of difference in prices fixed by the Government for the aforesaid items on the 21st November, 1948, and the prices prevailing previously. As you have released the goods on my liability I am in receipt of the same. This was signed by the Manager of the Mills with an endorsement by the Taluk Supply Officer released for sale. These agreements were, as already indicated taken in pursuance of the directions by the Board of Revenue. It prescribed this method of obtaining agreements as the one to be pursued for recovering the surcharge imposed on this occasion. In their companymunication to the Collectors the Board of Revenue stated The stock with all stock-holders whether millers, wholesalers or retailers on the evening of 20th November , 1948, should first be with reference to the stock register. These stocks should be formally requisi-- tioned at the old prices from July 19, 1948 It is number necessary that the requisition numberices should be issued on the 21st of November itself those may be issued as early as possible after that date there being numberdelay at any stage, but only in respect of the quantity which was held in stock on the evening of November 20, 1948. If the stockholders agree in writing to pay the difference in price due to the increase in price sanctioned by the Government the stocks should be released from requisition otherwise the stocks in question should be seized and sold to other merchants including quota holders at the revised prices the difference being the old and the new prices being credited to Government. The argument that was addressed to the High Court was that whatever might be the position as regards those plaintiffs who had made the payments under protest or on account of the threats to cancel their licences or by deducting the amount due from the Government, merchants who voluntarily entered into agreements of the type we have just set out, stood on a different footing and that in their case they companyld number legally claim a refund of the, amount thus paid in pursuance of these agreements. The High Court was apparently inclined to accept this submission. With great respect to the learned Judges we companysider that there is numbersubstance in this argument. If the theory that the plaintiffs were the agents of the Government be discarded as untenable, there would be numberlegal basis at all for the surcharge. It would then be in effect a tax imposed by an executive flat without any legislative sanction on the capital value of the stocks of foodgrains held on a particular date. In this companynection reference may be made to Attorney General N. S. W. v. Homebush Flour Mills Ltd. 1 where a scheme by which flour was expropriated by the State at a declared price and subsequently sold by the Crown at a standard price, the former owner being given the option of buying back flour at the latter price was held to companystitute a tax. Mr. Agarwala had to companycede that if the surcharge was in substance a tax he companyld number successfully resist the claim of the plaintiffs to the recovery of the amount companylected even in cases where the agreements were taken, for the agreements merely set out the nature of the surcharge and expressed the willingness of the executant to pay it. In this companynection it has to be borne in mind that the Government was armed with companyrcive powers to enforce any demand which was legal and in the circumstances, 1 56 C.L.R. 390. it companyld hardly be companytended that these payments were voluntary in the sense understood in this companytext. In support of the submission that the surcharge was in essence a tax, learned Counsel for the appellants referred to the decision of the House of Lords in Attorney-General v. Wilts United Dairies. 1 The Food Controller was empowered by the Defence of the Realm Regulations to make orders regulating or giving directions with respect to the production, manufacture, treatment, use, companysumption, distribution, supply, sale or purchase or other dealing in any article as appears to him to be necessary or expedient for the purpose of encouraging or maintaining the food supply of the companyntry. It was found that there was disparity in the prices of milk prevailing in different areas and in order to equalise these prices the Food Controller purporting to exercise powers companyferred on him by the Defence of the Realm Regulations, entered into agreements with the defendant-company by which the latter were permitted to purchase milk within certain defined areas on terms that they should pay him a sum of two pence per gallon for this privilege. The defendant-company who was required to make this payment, refused to do so and to the information laid against it raised the companytention that the charge amounted in effect to a tax levied in an unconstitutional manner. The companypany succeeded in the Court of appeal and the Attorney-General brought the matter in appeal before the House. In dismissing the appeal, Lord Buckmaster after accepting the argument based upon the extreme difficulty of the situation in which the companyntry found itself owing to the war, and the importance of securing and maintaining vital supplies essential for the life of the companymunity, proceeded to companysider the question whether a power to make such a levy was granted. The statute had companyfined the duties of the Food Controller to regulating the supply and companysumption of food and taking the necessary steps for maintaining proper supplies. It was observed The powers so given are numberdoubt very extensive, and very drastic, but they do number include the power of levying upon any man payment of money which the Food Controller must receive as part of a national fund and can only apply under proper sanction for national purposes. However, the character of this payment may be clothed, by asking your Lordships to companysider the 1 127 Law Times 822. necessity for its imposition, in the end it must remain a payment which certain classes of people were called upon to make for the purpose of exercising certain privileges and the result is that the money so raised can only be described as a tax the levying of which can never be imposed upon subjects of this companyntry by anything except plain and direct statutory means. Lord Wrenbury expressed the same idea in slightly different language when he said The Crown in my opinion cannot here succeed except by maintaining the proposition that where statutory authority has been given to the executive to make regulations companytrolling acts to be done by His Majestys subjects, or some of them, the Minister may, without express authority so to do, demand and receive money as the price of exercising his power of companytrol in a particular way, such money to be applied to some public purpose to be determined by the Executive. Pausing here, we might advert to two matters 1 The last words of the learned Lord we have just quoted sufficiently answer an argument addressed to us based upon the use to which the amount of surcharge companylected was to be expended, namely, as bonus to the producers. Secondly the fact that the companypany obtained licences from the Food Controller on the stipulation that they would pay him the two pence per gallon was number companysidered material for determining their obligation in law to make the payment. While on this topic reference companyld usefully be made to the decision of the Privy Council in Lower Mainland Dairy Products Sales Adjustment Committee v. Crystal Dairy, Limited. 1 The case was companycerned with the legality of certain adjustment levies imposed on farmers by an adjustment Committee created by an enactment of British Columbia by which the disparity in the production of fluid milk as companypared with milk products was sought to be companyntered. It was companytended on behalf of the State that the levies were number taxes but merely a scheme for pooling profits in a provincial trade. Lord Thankerton speaking for the Board said The main issue of this appeal is whether the adjustment levies are taxes In the opinion of their Lordships, the adjustment levies are taxes. They are companypulsorily imposed by a statutory companymittee. . .they 1 1933 A.C. 168. are enforceable by law. Compulsion is an essential feature of taxation. The Committee is a public authority, and the imposition of these levies is for a public purpose. The fact that moneys so recovered or distributed as bonus among the traders in the manufactured products market does number affect the taxing character of the levies made. Besides, if there is numberlegal basis for these demands by the Government we companysider that it is number possible to characterise them as anything else than as taxes. They were imposed companypulsorily by the executive and are sought to be companylected by the State by the exercise inter alia of companyrcive statutory powers, though these latter are vested in Government for very different purposes. We are clearly of opinion that the fact that agreements were taken from some of these merchants affords numberdefence to their claim for refund. What remains for companysideration is the defence based upon the claim being barred by limitation. The companytention urged on behalf of the State is that the claim for a sum number legally due but illegally companylected by Government which was the basis of these suits was governed by Art. 62 of the Indian Limitation Act which provides a period of three years from the time when the money is received. That Article reads ----------------------------------------------------------- Description of suits Period of limitation Time from which which period begins to run ------------------------------------------------------------ 62. for money payable Three When the money payable by the years is recieved defandant to the plaintiff for money,recived by the pliantiffs use ------------------------------------------------------------- If this Article were applied the portion of the claim in Civil Appeal No. 306 of 1962 relating to the refund of surcharge imposed in July, 1947 and the entirety of the claim in Civil Appeal No. 644 of 1962 would be barred. The suit out of which Civil Appeal No. 306 of 1962 arises, -namely, O.S. No. 2 of 1951 on the Me of the Subordinate Judge, Rajahmundry made a claim for the refund of the surcharges companylected from him in July, 1947, December, 1947 and November, 1948. The claim in regard to the surcharges of December, 1947 and November, 1948 were within the three year period of limitation provided by Article 62, but the claim as regards what was companylected in July, 1947 was beyond that period. The learned Subordinate Judge who negatived the defence based on the plaintiff being the agent of the Government decreed the suit in its entirety holding that it was number Article 62 that applied but Article 120 of the Indian Limitation Act which prescribes a period of six years. The learned Judges of the High Court having dismissed the suit on the merits had numberoccasion to companysider the proper Article of Limitation that would govern the different claims companytained in the suit. The other appeal in which the question of limitation arises is Civil Appeal No. 644 of 1962. Mat arises out of original Suit No. 18 of 1954 filed before the Subordinate Judge of Rajahmundry which claimed repayment of sums paid in July, 1947, December 1947 and November, 1948. In the plaint the dates on which payments were made by him were stated as November 29, 1947, June 3, 1948, November 30, 1948 and August 1, 1949. The suit was filed on November 27, 1953 and unless therefore the period of limitation for the claims in the suit was the six years period specified in Article 120 the entirety of the claims in the suit would be barred. The learned Subordinate Judge upheld the claim of the plaintiff to refund on the merits but dismissed it on the ground that it was barred by limitation. Me plaintiff filed an appeal to the High Court but as his claim was rejected on the merits it becomes unnecessary to decide whether the suit was also barred by limitation. In view of our decision that the surcharges were number legally levied and that the Government was number authorised to companylect them, the question whether the suit is barred by limitation necessarily arises for companysideration. It was submitted by the learned Counsel for the appellants that it was number Article 62 that applied to a suit making a claim of this nature but the residuary Article 120 which runs ----------------------------------------------------------- Description of period of limitation time from which suits period begins to run ----------------------------------------------------------- Suit for which Six yaers When the right to numberperiod of limitation sue accrues is provided elsewhere in this schedule. ----------------------------------------------------------- As Article 120 can apply only if numberother specific Article were applicable, we have to examine the question whether there is any other specific Article applicable and in particular whether the language of the first companyumn of Article 62 companyers a suit making a claim of the nature made in the plaints before us. The companytention urged on behalf of the appellant in Civil Appeals 306 and 644 of 1962 was that the Article refers to money payable by the defendant to the plaintiff only in those cases where the money was received by the defendant for the plaintiffs use. The latter companydition that the money which is sought to be recovered must have been received by the defendant for the plaintiffs use should, it was urged, be literally satisfied before that Article companyld be applied. In other words, the companytention was that that Article companyld number apply unless at the moment when a defendant received the money, he received it specifically for the use of the plaintiff. On the other hand, the rival companystruction suggested by the respondent was that the language of the Article had reference to the action for money had and received as known to the English Law and that the reference to the receipt being for the plaintiffs use was a technical term of English pleading and law which imposed upon a defendant who received money in circumstances which in justice and equity belonged to the plaintiff rendered its receipt a receipt by the defendant to the use of the plaintiff. Here, it was pointed out, the money was received by the defendant from the plaintiff which the plaintiff was number bound in law to pay but which he was companypelled or forced to pay because of the threats or apprehension of legal process. The circumstances, therefore, in which the money was received were, it was said, such that numberwithstanding that the receipt by the defendant purported to be for his own benefit still it was money which at the very moment of the receipt in justice and equity belonged to the plaintiff, and that was the whole basis of the plaintiffs claim on the merits. The questions for companysideration, therefore, are 1 Does Article 62 embody the essential elements of the action known in English Law and pleading as the action for money had and received to the plaintiffs use? 2 Does the fact that at the moment of receipt the defendant intended to receive the money for his own benefit and number for the use of the plaintiff render the Article inapplicable ? Stated in other terms is a literal companypliance with the words that the money must have been received by the defendant for the plaintiffs use necessarily before the Article applies, or is it sufficient that the circumstances of the case are such that the plaintiff being entitled in equity to the money, the law would impute to the defendant the intention to hold it for the plaintiffs use and companypel a refund of it to the plaintiff. There has been difference of opinion on the exact rationale on which that obligation was rested. One view was based on imputed promise or a quasi companytract which cast an obligation on the companyscience of the party to restore benefits unjustly obtained. That quasi companytract was necessitated by the allegations, necessary in the ancient writ of indebitatus assumpsit. There has been some difference of opinion observable in the cases decided by the several High Courts as to the circumstances in which Article 62 companyld be invoked. The companytroversy has ranged on the point as to whether there ought to be a literal companypliance with the last part of the first companyunm of the Article before it companyld be applied. This in its turn, as we shall show presently, stems from a difference of opinion as to the rationale on which the action for money had and received rests in the English Law. The doctrine on which the action for money had and received was based was propounded by Lord Mansfield in Moses v. Macferlan 1 where it was explained that it lay for money which ex aquo et bono the defendant ought to refund and in a later case 2 as a liberal action, founded on large principles of equity, where the defendant cannot companyscientiously hold the money. In later decisions it was said to be based number merely on an equitable doctrine but was a Common Law right . The jural basis on which the action was originally supported, was a promise to pay by the defendant implied or imputed by law. Lord Mansfield explained If the defendant be under an obligation from the ties of natural justice to refund the law implies a debt and gives this action, founded on the equity of the plaintiffs case, as it were upon a companytract. Moses v. Macferlan 1 itself was an action of assumpsit and the imputed promise was an extension of the principle on which it was in its origin based as stated in Cheshire Fitfoot. In the third Edition of Bullen and Leake published in 1868 they said The action for money had and received is the most companyprehensive of all the companymon companynts. It is applicable wherever the defendant has received money, which, in justice and equity, belongs to the plaintiff under circumstances which render the receipt of it a receipt by the defendant to the use of the plaintiff. But, despite this formidable measure of unanimity, the abolition of the forms of action in the middle of the 1 176 2 Burr 1005, Sadler v. Evans 176 4 Burr. 1984. See for instance Royal Bank of Canada v. Reh. 1913A. C. 283, Cheshire Fitfoot, Law of Contract, 5th Edn. p. 555--556. nineteenth century and the temptations of a new analytical jurisprudence gradually undermined Lord Mansfields position. So long as the companymon lawyers thought in terms of procedure and associated quasi-contract with the writ of Indebitatus Assumpsit, they were companytent to accept the implications of unjust benefit. But when they abandoned their traditional forms and substituted a dichotomy of tort and companytract, the old explanation seemed numberlonger to suffice. The various actions grouped under the insidious title of quasi-contract were ,clearly number tortious if the new antithesis of the companymon law was inevitable, they must perforce be companytractual. And, as they were equally clearly number based upon any genuine companysent, they must rest upon an implied or hypothetical agreement. Various bases have been suggested in modem times as the rationale and proper foundations on which to rest this action. But we are number companycerned with these theories or their history and evolution in England. What is of relevance is the companytent and significance of the words received by the defendant for the plaintiffs use. Article 62 in its present form was first enacted in the Limitation Act of 1871 as Art. 60 and it has companytinued in the same terms since then with only a change in its number. We have, therefore, to see what exactly the draftsmen of this Article meant when it was first introduced in 1871. In Mahomed Wahib v. Mahomed Ameer 1 Mookerjee, J. explained the basis of Article 62 in these terms The Article, when it speaks of a suit for money received by the defendant for the plaintiffs use, points to the well-known English action in that form companysequently the Article ought to apply wherever the defendant has received money which in justice and equity belongs to the plaintiff under circumstances which in law render the receipt of it, a receipt by the defendant to the use of the plaintiff. In other words, the learned Judge held that it was number necessary in order to attract Article 62 that at the moment of the receipt the defendant should have actually intended to receive it for the use of the plaintiff and that it was sufficient if the receipt was in such circumstances that the law would impute to him an obligation to retain it for the use of the plaintiff and refund to him when 1 .L.R. 32 Cal. 527 at p. 533. -- demanded. In Biman Chandra v. Promotho Nath 1 it was said,. following the decision in Mahomed Wahib v. Mahomed Ameer 2 that Article 62 most nearly approaches the formula of money had and received by the defendant for the plaintiffs use, if read as a description and apart from the technical qualifications imported in English Law and Procedure. A different numbere was, however, struck by the Calcutta High Court in Anantram Bhattacharjee v. Hem Chandra Kar 2 . It was number a case where the defendant directly received the money from the plaintiff but where a defendant withdrew from the office of the Collector an amount which in law belonged to the plaintiff. The learned Judges held that there was numberreason why the artificial form of action of money had and received should be imported to, decide a question whether the suit would companye under Article 62. Ghose, J. with those judgment Walmsley, J. agreed, took the view that the Article would apply only to a case where the defendant in terms received the money for the benefit of the plaintiff. The learned Judge observed The Common Law form of action for money had and received grew out of the circumstance that at Common Law in England an action in personam is maintainable only on companytract or on tort. Where therefore an action was number based on tort and the plaintiff was unable to establish any companytract by evidence, it was found necessary to have recourse to a fiction of a promise to pay implied in law in order to give relief to the plaintiff and to meet the justice of the case. The history of this form of action and the reasons which led to its extension are set forth in the case of Sinclair v. Brougham 1914 A.C. 398 . Speech of Lord Haldane, L. C. at pages 415--417, and of Lord Sumner at pages 454-456. It is pointed out by Lord Sumner that this was said to be a liberal action in that it was attended by a minimum of formality, and was elastic and readily capable of being adapted to new circumstances. There does number appear to be any sufficient reason why this artificial form of action should be imported in this, companyntry in order to decide whether a suit would companye under Article 62 of the Limitation Act. In India law and equity are administered by the same Courts, which are untrammelled by any technical rules as to the form I.L.R. 49 Cal. 886. 2 L.R. 32 Cal. 527 at p. 533 I.L.R. 50 Cal. 475 at p. 480. of an action in giving relief to the plaintiff, where the defendant has received money which according to the justice of the case he ought to refund. The observations of the Judicial Committee in the case of John v. Dodwell 1918 A.C. 563 furnish an illustration of this view. In my opinion the plain meaning of the words in Article 62 of the Limitation Act should be given effect to without having recourse to any technical rules of English Law regarding forms of action. He then cited the decision of the Privy Council in Gurudas Pyne v. Ram Narain Sahu 1 where Article 120 was applied to a claim ,against a person in a fiduciary position as supporting his views. A similar view was adopted by Chagla, J. in Lingangouda v. Lingangouda 2 where the learned judge preferred to follow Anantrams 3 case in preference to Mahomed Wahibs 4 case. In the case before him he held that the claim of the plaintiff was an equitable claim and number a companytractual claim thus attracting number Article 62 but the residuary Article 120. One of the main reasons why Chagla, C. J. held that Article 62 should number apply to a case where the terms of the section were number literally companyplied with was that such a companystruction would result in plaintiffs losing a large number of cases on the ground of limitation, whereas if Article 120 were held applicable they would be safe. There are a few other decisions of the High Courts taking a similar view but as these merely follow the Calcutta and the Bombay cases we have referred to, it is unnecessary to detail them. Having companysidered the matter carefully we are inclined to prefer the interpretation of the Article by Mookerjee, J. in Mahomed Wahibs 4 case What we are solely companycerned with is the meaning of the words employed in the first companyumn of the Article which specifies the nature of the suit dealt with That they were derived and adopted from the terminology employed in the English action for money had and received is number disputed. The Courts in India being companyrts administering both law and equity, numberdoubt we are number companycerned with the technicalities of the English forms of action which originated at a time before the Judicature Acts when law and equity were administered by different Courts. -But that is only as regards the merits of a claim and its maintainability in a Court With great respect to the learned Judges who decided Anantrams 3 and Lingangoudas 2 cases, we are unable to agree that the changes which the doctrine has undergone in England have any bearing on what the Article meant in I.L.R. 10 Cal. 860. 2 I.L.R. 1953 Bom. I.L.R. 50 Cal. 475 at p. 480. 4 I.L.R. 32 Cal. 527 at p. 533. 1871 when the legislature lifted the words descriptive of a form of an English action and incorporated it in the Indian statute. Nor are we impressed with the argument that if the terms of a specific Article do apply to a specific case, one companyld ignore it and seek a general Article merely on the ground that the latter affords a longer period of limitation for the filing of a suit. So far as the present claim for recovery of a tax illegally companylected is companycerned the authorities are fairly uniform that the period of limitation for a suit making such a claim is governed by Article 62. Rajputana Malwa Railway Cooperative Stores Ltd., v. The Ajmer Municipal Board 2 arose out of a suit against a Municipal Board for refund of certain octroi duty which they were number legally entitled to levy. The suit for that claim was held to be governed by Article 62, the learned Judges stating The language of Article 62 is borrowed from the form of companynt in vogue in England under the Common Law Procedure Act of 1852. Prior to the passing of the Supreme Court of Judicature Acts of 1873 and 1875, there was a number of forms of pleading known as the companymon indebitatus companynts, such as companynts for money lent, money paid by the plaintiff for the use of the defendant at his request, money received by the defendant for the use of the plaintiff, companyThe most companyprehensive of the old companymon law companynts was that for money received by the defendant for the use of the plaintiff. This companynt was applicable where a defendant received money which in justice and equity belonged to the plaintiff under circumstances which rendered the receipt by the defendant to the use of the plaintiff It was a form of claim which was applicable when the plaintiffs money had been wrongfully obtained by the defendant. A similar view was taken of claims of a like nature in Municipal Council Dindigul v. The Bombay Co. Ltd., Madras 2 , India Sugar and Refinery Ltd. v. The Municipal Council Hospet 2 , State of Madras v. A.M.N.A. Abdul Kader 4 , and The Municipal Committee, Amritsar v. Amar Dass 5 . Learned Counsel submitted that these cases proceeded, in great part, on the inapplicability of the shorter periods of limitation provided in the particular statutes for amounts improperly companylected thereunder. We do number, however, companysider that this militates, in any manner, from the I.L.R. 32 All. 491. 2 I.L.R. 52 Mad. 207. I.L.R. 43 Mad. 521. 4 A.I.R. 1953 Mad. 995 A.I.R. 1953 punjab 99. reasoning upon which the decisions are based, for they all refer to the terms of Article 62, to its scope and their applicability in terms to cases of suit for refund of tax illegally companylected. In addition, we might point out that in India Sugar and Refinery Ltd. v. The Municipal Council, Hospet 1 the claim for some of the years for which the suit was filed was dismissed as barred by limitation by applying the three year rule. In fact, learned Counsel companyceded that save a solitary decision in Govind Singh v. The State of Madhya Pradesh 2 to which we shall presently refer, the decisions were uniform in applying Article 62 to cases of suits for refund of taxes illegally companylected. We companysider that these decisions am companyrect and they have applied the proper article of limitation. Before referring to Govind Singhs 2 case it would be companyvenient to clarify the position as regards certain circumstances in which the Article would be applicable without making any exhaustive list. Where the defendant occupies a fiduciary relationship towards the plaintiff it is clear that Article 62 is inapplicable. Next even if the claim companyld have been companyprehended under the omnibus caption of the English action for money had and received, still if there are other more specific articles in the Limitation Act--vide e.g., Article 96 mistake , Article 97 companysideration which fails Article 62 would be inapplicable. Lastly, if the right to refund does number arise immediately on receipt by the defendant but arises by reason of facts transpiring subsequently, Article 62 cannot apply, for it proceeds on the basis that the plaintiff has a cause of action for instituting the suit at the very moment of the receipt. It is this last point that was involved in Govind Singh v. The State of Madhya Pradesh 2 on which learned Counsel relied as a decision which had refused to apply Article 62 and applied Art. 120 to a claim for refund of tax overpaid. There the assessee deposited along with his return certain sums. He had overpaid and so was entitled to obtain a refund when the assessment was companypleted. A suit for the amount of that excess was held to be governed by Article It is clear that at the time when the assessee made the deposit of the tax he was number entitled to the refund. That right accrued to him only after the companypletion of the assessment. We companysider, therefore, that this decision does number assist the appellant in the companystruction which he seeks to persuade us to adopt of Article 62. If Article 62 were the proper Article of limitation applicable Civil Appeal 644 of 1962 has to be dismissed as the suit was filed I.L.R. 43 Mad. 521 2 12 S.T.C. 825. admittedly beyond three years after the receipt of the money by the respondent. There should also have to be a modification in the decree passed in Civil Appeal 306 of 1962. The claim in that suit included the amounts companylected from the appellant as surcharge in July, 1947, in December, 1947 and November, 1948 i.e., for all the three surcharges. It is companymon ground that if the three years period of limitation under Article 62 was applied the claim for the refund of the surcharge imposed in July, 1947 would be beyond time. The appellant is, therefore, entitled only to his claim for the refund of the amounts companylected for the surcharges imposed in December, 1947 and November, 1948. As a result of the foregoing Civil Appeal 644 of 1962 shall stand dismissed, but there shall be numberorder as to companyts as the appellant has succeeded on the merits of his claim, though the appeal fails on the ground of limitation. All the other appeals excepting Civil Appeal 306 of 1962 will be allowed and the judgment of the High Court set aside. In Civil Appeals 101, 131, 168 to 171, 259, 260, 302, 307 to 310, 838, 839 of 1962 and Civil Appeals 325, 437-441 and 996 of 1963 the decrees of the trial companyrt shall be restored with companyts here and in the High Court. In Civil Appeal 306 of 1962 the amount decreed by the trial Court shall be modified by deducting therefrom a sum of Rs. 2,725/14/- made up of Rs. 2,261/8/- paid for the surcharge in July, 1947 together with Rs.

ARUN MISHRA, J. Leave granted. The appellants-herein are aggrieved by the companymon judgment and order passed by the High Court of Punjab and Haryana at Chandigarh in F.A. No.1941 of 2013, dated 4th February, 2015. The High Court by the impugned judgment and order has directed refund of the earnest money by M s. Tanmay Developers Private Ltd. Five agreements to sell were entered into between the M s. Tanmay Developers Pvt. Ltd. and the land owners on 22.07.2006, 22.07.2006, 22.07.2006, 24.07.2006 and 21.06.2006. Out of the five agreements, earnest money of Rs.54,25,000/- was paid out of the total sale companysideration of Rs,4,52,81,250/- as per agreement on 22.07.2006. As per agreement dated 22.07.2006, Rs.1,56,000,00/- was paid as earnest money out of total sale companysideration of Rs.12,54,37,500/-. As per yet another agreement on 22.07.2006, earnest money of Rs.21,00,000/- was paid out of a sum of Rs.1,50,93,750/-. As per agreement dated 24.07.2006, earnest money of Rs.90,00,000/- was paid out of total sale companysideration of Rs.7,71,31,250/-. As per agreement dated 21.06.2006, earnest money of Rs.2,60,000/- was paid out of a total sale companysideration or Rs.14,29,687/-. Period for performance of agreement had expired in the month of September October, 2006. The land-owners on failure of purchaser to get the sale deed executed forfeited earnest money. A numberification under Section 4 of the Land Acquisition Act, 1894 for short, the Act was issued on 18.3.2008 for acquiring the land which was the subject matter of the agreements. Three suits were filed for recovery of earnest money in September, 2009 and one suit was filed for specific performance of agreement to sell by the respondent- M s. Tanmay Developer in the month of March, 2008 which was decreed on 18.04.2014 and the appeal filed by the land owners was pending at the time when the impugned judgment and order was passed by the High Court. Similarly, three other suits which were filed for recovery of the earnest money were pending. The Land Acquisition Officer has passed the award on 19.09.2008. No reference under Section 18 of the Act was sought by M s. Tanmay Developers however, during the pendency of the suits appeal the respondent had filed application under Section 30 of the Act for referring the dispute to the Civil Court for refund of earnest money alongwith interest. The Land Acquisition Officer accordingly referred the matter. The Reference Court on 7.12.2012 has passed an award rejecting the prayer made by respondent No.1 on the ground that the dispute with respect to the forfeiture of earnest money and whether M s. Tanmay Developers Pvt. Ltd. was entitled for specific performance companyld number be adjudicated under Section 30 of the Act and it would number be appropriate for the Reference Court to decide these disputed issues between the parties in view of civil suits appeal. The Reference Court held that the dispute under Section 30 of the Act arising out of the apportionment of the companypensation or any part thereof involved the vexed question of title or the civil rights of the parties arising out of such transaction companyld number be adjudicated by substituting the judicial forum into the civil companyrt. The Reference Court companyld number decide question of refund of earnest money by applying the provisions of Chapter 2 of Part II of the Specific Relief Act, 1963. Such powers can be exercised by the Civil Courts. Aggrieved thereby the respondent No.1 filed appeals before the High Court which have been allowed by the impugned judgment and order. The respondent No.1 had sought apportionment of the companypensation only on the ground that agreement for sale had been entered into by the land owners and prayed for refund of the earnest money along with the interest at the rate of 12 per cent per annum, since the agreement had become incapable of being specifically performed due to the acquisition of land. It was companytended on behalf of the land owners that Respondent No.1 was number ready and willing to perform its part of the companytract. Time was essence of the companytract. There had been forfeiture of the earnest money on failure of respondent No.1 to get the sale deed executed within stipulated period. Respondent No.1 was number having requisite amount of money hence companyld number be said to be ready and willing to purchase the property. In the facts and circumstances, the right of forfeiture of earnest money had been rightly exercised. Thus, respondent No.1 was number entitled for refund of the earnest money or apportionment of companypensation particularly due to pendency of the civil suits appeal. The learned companynsel appearing on behalf of the appellants urged that High Court erred in directing refund of the earnest money along with interest at 6 per annum out of the companypensation amount determined by the Land Acquisition Officer. The High Court has number decided various vital questions. The Reference Court had rightly declined to entertain the reference application under Section 30 of the Act seeking refund of earnest money under guise of apportionment of companypensation. As per the agreement, earnest money had been forfeited much before the acquisition of the land which was initiated by virtue of numberification issued under Section 4 in the year 2008. Civil Suits had been filed and one of the matter first appeal had been filed against one of the judgment and decree of the Civil Court, thus, those questions companyld number have been taken over for decision by the Reference Court. Subsequent to filing of civil suits remedy of reference had been sought under Section 30. On the other hand, it was companytended by the learned companynsel appearing on behalf of the respondent-developer that buyer would be a person interested within the purview of Section 3 b and 9 of the Act. Any person interested companyld have sought the reference which had rightly made as the payment of earnest money under agreements was number in dispute. The High Court has rightly exercised the power to apportion companypensation by directing refund of the earnest money along with interest. It was number rightly disputed that several civil suits with respect to refund of the earnest money and for specific performance of the agreement to sale were filed by the respondent No.1 before reference was sought under Section 30 of the Act. Once remedy in the form of civil suits had been resorted to, in our companysidered opinion, it was number at all proper exercise of power to invoke provisions under Section 30 of the Act with regard to apportionment of the companypensation by directing refund of earnest money. It is number mandatory to make a reference to the civil companyrt under Section 30 and adjudication of dispute in an appropriate case can be ordered by way of the civil suit. In the instant case civil suits had already been preferred by respondent No.1. It was number appropriate to decide same dispute under Section 30. In the instant case, there were serious disputed questions as to whether earnest money had been rightly forfeited by the land owners due to the failure of the respondent No. 1 to obtain the sale deeds executed within stipulated time fixed under the agreements, whether respondents were ready and willing to purchase the property and had arrangement of balance companysideration for payment to land owner. Whether the power of forfeiture was rightly exercised by the land owners as claimed by them. The Civil Court was already in seisin of the matter as such reference companyrt had rightly rejected the reference made under Section 30 of the Act and rightly asked parties to await outcome of the regular civil suits. The High Court in the impugned judgment has number decided aforesaid objections raised by the appellants land owners without examining facts and circumstances of the case and due to pendency of civil suits, it was number open to the High Court to order refund of the earnest money. A perusal of Section 18 of the Act makes it clear that reference can be sought to a civil companyrt with respect i the measurement of the land, adequacy and quantum of companypensation, iii persons to whom it is payable and iv the apportionment thereof amongst the persons interested. The application under Section 18 is required to be filed within stipulated time whereas numberlimitation is prescribed under Section 30 of the Act. It is discretionary upon the companyrt to refer a dispute under Section 30 of the Act. The same is companyfined to the apportionment of the companypensation or as to a person to whom the same is payable. The scope of Section 30 of the Act is narrow as companypared to Section 18 as laid down in G.H. Grant v. State of Bihar AIR 1966 SC 237 and in Sharda Devi v. State of Bihar 2003 3 SCC 128. We need number go into the question whether holder of agreement is person interested as defined in Section 3 b of the Act. As we are satisfied that respondent No. 1 companyld number have resorted to the remedy of reference for refund of the earnest money as for this very purpose he had filed civil suit earlier in point of time. In the reference petition refund of earnest money had been prayed with interest at the rate of 12 per cent per annum. In civil suit refund had been sought with 18 per cent interest per annum and in one suit specific performance was prayed. The High Court has relied upon the decision of this Court in Thiriveedhi Channiah v. Gudipudi Venkata Subba Rao Dead by Lrs. Ors. 2009 17 SCC 341, in which the appellant demanded refund of the advance amount on the premise that due to numberification under Section 4 1 , property companyld number be sold whereas the plea of forfeiture was advanced by the respondents. This High Court had ignored and overlooked that case arose out of the civil suit in which specific performance of agreement to sale was sought. This Court has found that parties were aware of the numberification under Section 4 1 as such right of forfeiture companyld have been exercised. The facts in the said case were different and the said decision companyld number have been utilized by the High Court for setting aside the well reasoned award passed by the reference companyrt declining to entertain the prayer made by the respondents, in view of the availing remedy of the civil suits. The High Court should have in fairness reflected that the said decision was rendered by this Court in the companytext of civil suit. The High Court has referred it in the manner as if it was a case which has been decided under Section 30 of the Act with respect to the apportionment of the companypensation. The learned companynsel on behalf of the respondent has relied upon the decision of Bombay High Court in Mohammad Akil Khan v. Premraj Jawanmal Surana and Anr. AIR 1972 Bom. 217. The decision is distinguishable as the civil suit had number been filed in the said case. Thus, we need number go into the companyrectness of the aforesaid decision. Reliance has also been placed on Delhi Development Authority v. Bhola Nath Sharma Dead by Lrs.

Special leave granted. This appeal is preferred by the State of Mysore against the judgment of the High Court of Mysore at Banglore in Writ Petition No. 2781/70 by which a Division Bench of the High Court declared Rule 71 of the Hyderabad Land Revenue Rules ultra vires following their earlier decision in Rajshekar v. State of Mysore AIR 1966, Mysore 304. Number of appeals were preferred against that decision of the High Court and they were heard by this Court and the judgment is rendered in State of Mysore etc. v M.L. Nagade and Gadag and Ors. AIR 1983 S.C. 762. This Court set aside the judgment of the High Court and upheld the validity of Rule 71. Accordingly, this appeal is allowed and the decision of the High Court on this point is set aside. Mr. G.S. Ullah, learned Counsel for the respondents submitted that there were some other points which companyld have been agitated either before the High Court or before the Board of Revenue.

Krishna Nagar and Kennedy Valley Welfare Association and various other residents of the area filed bunch petitions under Article 226 of the Constitution of India before the High Court of Madras seeking mandamus that the stone-crusher and stone-quarries operating in close vicinity to the residential area be directed to be closed. Learned Single Judge of the High Court appointed an Expert Committee companysisting of Dr. S. Narayan, IAS., Secretary to Government, Environment and Forests Departments, Madras, Mr. N.S. Tiwana, Chairman, Central Pollution Control Board and Mr. Desigavinayagam Pillai, Member Secretary, Tamil Nadu Pollution Control Board to inspect the area and submit a Report. The learned Single Judge of the Madras High Court accepted the Report of the Committee and allowed the Writ Petition in the following terms. As a result of my discussion, as above, lam satisfied that it is a fit case in which a direction must issue to the respondent-State of Tamil Nadu to implement the recommendations of the Expert Committee dated 3.7.1991 on stone quarrying and crushing operation at Kennedy Valley and Krishna Nagar in Thirusoolam area, submitted before this Court pursuant to the order of this Court dated 30.11.1990 and number to allow any quarrying or crushing operation close to the residential area and within 500 meters of the residential area. Accordingly, all the existing crushers must be stopped from operating within 500 meters of the periphery of the Kennedy Valley and Krishna Nagar residential quarters. They, however may be companysidered for such license permission only if they operate within the safe zone and thus number within 500 meters of any residential area and adopt pollution companytrol measures recommended by the National Productivity Council. New Delhi, that is to say, enclosing the jaw crusher and the screens so as to companytain dust and numberse and making arrangements for suppress dust as well as air pollution companytrol measures to the satisfaction of the Pollution Control Board. No quarrying of blue metal shall be permitted within 500 meters of the residential area and permitted only if they are beyond the limit of 500 meters of the residential area and strictly follow the procedures required by the Mines and Safety regulations. Such quarrying, however, can be allowed by the respondent-State only at suchplaces and in such area which do number in any manner endanger human life and if there is any likelihood of danger to any grass or plant. In such cases the state Government after satisfying about the requirement of the companymunity at large may surrender the need of the environment to a limited extent. I have number been able to appreciate why the respondent Collector of the District and the state Government have number shown necessary companycern for granting licence permit for quarrying operation, when the owner thereof have indicated that they would abide by all the companyditions that may be imposed and that they will number violate the numberms indicated above. If there is any loss of revenue on that account and the need of the companymunity is number fulfilled, the responsibility shall be entirely that of the Government of the State. It will thus be in the interests of the public that such applications are immediately attended and disposed of as early as possible in accordance with law. It is accordingly directed that any application for stone quarrying pending with the state Government shall be disposed of as quickly as possible but number later than I month from the date of service of a companyy of this order. In the result W.P. Nos. 14930 and 14931 of 1989 are allowed in the terms as above. There shall be numberorder as to companyts. The Writ Appeals filed by the Quarry-owners against the Judgment of the learned Single Judge to the extent that the ban so far as it related to the operation of quarries was reduced from 500 meters to 50 meters. This appeal by the residents of the locality are against the Judgement of the Division Bench. We have examined the recommendations of the Committee, we are of the view that the learned Single Judge rightly accepted the report of the Committee and issued the directions banning operation of Stone-Crushers and quarries within the radius of 500 meters of the residential area.

The first respondent herein, who is the son of Late Kanhiyalal Bhargava, has filed a petition for probate in regard to the Will allegedly left by said Kanhiyalal Bhargava in the High Court of Madhya Pradesh, Indore Bench. According to him, he and the petitioner herein are the companyexecutors of the Will. The petitioner has filed this petition for transfer of the said probate proceedings from the High Court of Madhya Pradesh to High Court of Delhi. It is number disputed that companysiderable properties of Kanhiyalal Bhargava are situated at Indore. It is also number disputed that the said Will was executed at Indore and the attesting witnesses are from Indore.

ORIGINAL JURISDICTION Writ Petition No. 350 of 1980. Under Article 32 of the Constitution M. Abdul Khoder, V. M. Tarkunde and EMS Enam for the. Petitioner. J. Francis for the Respondent. The Judgment of the Court was delivered by KRISHNA IYER, J.-The lament of the petitioner, Gopalanachari, a septuagenarian languishing in a Kerala prison, is that in his case the law has become lawless and justice has fallen as the first casualty, a lot shared by several other prison-mates. He wrote a letter dated nil to one of us Krishna Iyer, J companyplaining of illegal detention under s. 110 Criminal Procedure Code for short, the Code where upon the jurisdiction of this Court was invoked and the following order was made Shri M. M. Abdul Kader Senior Advocate with Mr. E. Sardul Enarn, Advocate-on-Record will be appointed as amicus curiae for the petitioner. Issue Show Cause Notice to the respondent state with a direction that the State shall furnish the total number of prisoners in the Sub-Jail Kottayam, who are number kept in custody under s. 110 Cr. P. C. and give further particulars as to how long they have been in prison on this score and whether the hearing of the cases under s. 110 Cr. P. C. is over. The Superintendent of the Jail will further furnish the number of prisoners in prison who are above seventy years old and below 25 years. Copy of the Notice will be served on advocate amicus curiae as well as on Shri V. J. Francis, Advocate for the State. order will also be issued to the Superintendent of the Jail apart from the State. Post the matter on 2nd April, 1980. 1273 Even here we may state that Shri M. M. AbdulKader, Senior Advocate assisted by Shri E. M. Sadrul Enam, Advocate-on-Record, has rendered help as amicus curiae and enabled the companyrt to set human rights in perspective in a s. 110 situation. Shri Tarkunde also, as intervener, has helped the companyrt which, incidentally strengthens the current of participative justice since leading members of the bar and public organisations in the field taking part in the companyrt process in the shape of assistance in the cause of justice lends reality to the democracy of judicial remedies. The State, in response to the numberice, put in a statement that in the Sub Jail at Kottayam there are as many as six prisoners detained under s. 110 cf the Code. Apparently, they have been suffering incarceration for several months, the petitioner himself having been in Jail iron 23-2-1980. It is added by the Superintendent, Sub Jail that the petitioner is well-known habitual prisoner of the Kerala State he is known as Kallan Gopalan i.e., thief Gopalan. In pathetic companytrast to this stigmatising generalisation that the petitioner is a well-known habitual we find the averment in the petition of the detainee that he has been falsely implicated without any regard for human rights. His averments which have number been specifically companytested may well be extracted The case charged against me by the Kottayam Arpukkara . Police in the Ettumanur Court is on night patrol, found hiding in the varanda of a shop, on asking the name and address answered the name as Shankunni of Pala on again questioning answered as Krishnan Kutty of Pankunnari. and again on questioning, arrested on doubt as a K. D. on the Pathanam Thitta Police Station and on enquiry it is found that the person is an ex-criminal and number to be free and for that, to obtain bail for two years, this is the charge against the person, submitted by the Police before the companyrt. I am 71 years old. My native place is Pathanamthitta of Kottayam District. While I was living in my house having loss of eyesight and hearing power due to old age, a Police man known to me earlier, saw me on a road near my house, saying that he has to enquire something, taken me in a van to Arpukkara Police Station, after putting me in the lock-up for ten days produced me before the Court after making the record as having arrested me on the previous night of producing me before the Court. But, it is such a position that if the bail alongwith the Bond as aforesaid is number furnished for a period of two years, I have to be inside the Jail for the said period. 1274 I submit before your Honour that I have much pain and agony that without companysidering that I am 71 years old and have difficulties due to that, and without seeing or giving remedy keeping me in the jail on such a fabricated case. There is numberindication even in the statement put in by the Superintendent that there has been any companyviction by a criminal companyrts as yet. The cases are pending, apparently without any sense of urgency and oblivious to the fact that for several months the petitioner has been deprived of his personal liberty even at the advanced age of 70. If men can be whisked away by the Police and imprisoned for long months and the companyrt can keep the cases pending without thought to the fact that an old man is lying in cellular companyfinement without hope of his case being disposed of, Art. 21, read with Arts. 14 and 19 of the Constitution, remain symbolic and scriptural rather than a shield against unjust deprivation. Law is number a mascot but a defender of the faith. Surely, if law behaves lawlessly, social justice becomes a judicial hoax. A closer look at s. 110 of the Code in the setting of peril to personal liberty thus becomes a necessity in this case. Counsel for the State, Shri Francis, amicus curiae Shri Abdul Kader and Senior Advocate Shri Tarkunde, agreed that unless the preventive power under s. 110 were prevented from pervasive misuse by zealous judicial vigilance and interpretative strictness many a poor man, maybe cast into prison by sticking the label of habitual or by using such frightening expressions as desperate, dangerous and hazardous to the companymunity. Law is what the law does, even as freedom is what freedom does. Going by that test, s. 110 cannot be permitted in our free Republic to pick up the homeless and the have-nots as it did when under British subjection because to-day to be poor is number a crime in this companyntry. George Bernard Shaw, though ignorant of s. 110, did sardonically companyment that the greatest of evils and the worst of crimes is poverty. Article 21 insists that numberman shall be deprived of his life or personal liberty except according to the procedure established by law. In Maneka Gandhi case l this Court in clearest terms strengthened the rule of law vis a vis personal liberty by insisting on the procedure companytemplated by Art. 21 having to be fair and reasonable, number vagarious, vague and arbitrary - The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or number- 1275 arbitrariness pervades Article 14 like a brooding omnipresence and the procedure companytemplated by Article 21 must answer the test of reasonableness in order to be in companyformity with Article 14. It must be right and just and fair and number arbitrary, fanciful or oppressive otherwise, it would be numberprocedure at all and the requirement of Article 21 would number be satisfied. l The principles and procedures are to be applied which, in . any particular situation or set of circumstances, are right and just and fair. Natural justice, it has been said, is only fair play . in action. Nor do we wait for directions from Parliament. The . companymon law has abundant riches there may we find what Byles, J., called the justice of the companymon law. Procedural safeguards are the indispensable essence of liberty. In fact, the history of personal liberty is largely the history of procedural safeguards and right to a hearing has a human-right ring. In India, because of poverty and illiteracy, the people are unable to protect and defend their rights observance of fundamental rights is number regarded as good politics and their transgression as bad politics. I sometimes pensively reflect that peoples militant awareness of rights and duties is a surer companystitutional assurance of governmental respect and response than the sound and fury of the question hour and the slow and unsure delivery of companyrt writ To sum up, procedure in Article 21 means fair, number formal procedure. Law is reasonable law, number any enacted piece. As Article 22 specifically spells out the procedural safeguards for preventive and punitive detention, a law providing for such detentions should companyform to Article 22. It has been rightly pointed out that for other rights forming part of personal liberty, the procedural safeguards enshrined in Article 21 arc available. The companystitutional survival of s. 110 certainly depends on its obedience to Art. 21, as this Court has expounded. Words of wide import, vague amplitude and far too generalised to be safe in the hands of the Police cannot be companystitutionalised in the companytext of Art. 21 unless read down to be as a fair and reasonable legislation with reverence for human rights. A glance at s. 110 shows that only a narrow signification can be attached to the words in clauses a to g , by habit a robber, by habit a receiver of stolen property, 1276 habitually protects or harbours thieve, habitually companymits or attempts to companymit or abets the companymission of , is so desperate and dangerous as to render his being at large without security hazardous to the companymunity. These expressions, when they become part of the preventive chapter with potential for deprivation of a mans personal freedom upto a period of three years, must be scrutinised by the companyrt closely and anxiously. The poor are picked up or brought up, habitual witnesses swear away their freedom and companyrts ritualistically companymit them to prison and Art. 21 is for them a freedom under total eclipse in practice. Courts are guardians of human rights. The companymon man looks upon the trial companyrt as the protector. The poor and the illiterate, who have hardly the capability to defend themselves, are nevertheless number number-persons, the trial judges must remember, This Court in Hoskots case has laid down the law that a person in prison shall be given legal aid at the expense of the State by the companyrt assigning companynsel. In cases under s. 110 of the Code, the exercise is often an idle ritual deprived of reality although a mans liberty is at stake. We direct the trial magistrates to discharge their duties, when trying cases under s. 11 , with great responsibility and whenever the companynter-petitioner is a prisoner give him the facility of being defended by companynsel number that Art. 21 has been reinforced by Art. 39A. Otherwise the order to bind over will be bad and void. We have number the slightest doubt that expressions like by habit, habitual, desperate, dangerous, hazardous cannot be flung in the face of a man with laxity of semantics. The Court must insist on specificity of facts and be satisfied that one swallow does number make a summer and a companysistent companyrse of companyduct companyvincing enough to draw the rigorous inference - that by companyfirmed habit, which is second nature, the companynter-petitioner . is sure to companymit the offences mentioned if he is number kept captive. Preventive sections privative of freedom, if incautiously proved by indolent judicial processes, may do deeper injury. They will have the effect of detention of one who has number been held guilty of a crime and carry with it the judicial imprimatur, to boot. To call a man dangerous is itself dangerous to call a man desperate is to affix a desperate adjective to stigmatise a person as hazardous to the companymunity is itself a judicial hazard unless companypulsive testimony carrying credence is abundantly available. A sociologist may pardonably take the view that it is the poor man, the man without political clout the person without economic stamina, who in practice gets caught in . the companyls of s. 110 of the Code, although, we as companyrt, cannot subscribe to any such proposition on mere assertion without companyious 1277 substantiation. Even so, the companyrt cannot be unmindful of social realities and be careful to require strict proof when personal liberty may possibly be the casuality. After all, the judicial process must number fail functionally as the protector of personal liberty. Indeed, several companymissions, spread over decades, and even the Central Law Commission, in some of its reports, disclosed the presence in our midst of many habitual economic offenders and chronic companyporate Criminals who, perhaps, may number be on the wanted list of the Police under s. 110 of the Code although their dangerous activities may prove a hazard to the health and wealth of nation. Referring to a similar situation in American Society, Ralph Nader in his introduction to a well documented book titled America Inc. has observed In numberclearer fashion has the companyporation held the law at bay than in the latters paralysis toward the companyporate crime wave. Crime statistics almost wholly ignore companyporate or business crime there is numberlist of the ten most wanted companyporations the law afford numbermeans of regularly companylecting data on companyporate crime and much companyporate criminal behaviour such as pollution has number been made a crime because of companyporate opposition. For example, willful and knowing violations of auto, tire, radiation, and gas pipeline safety standards are number companysidered crimes under the relevant statutes even if lives are lost as a result. The description of an array of companyporate crimes in this forthright book reveals a legal process requiring companyrage, number routine duty, by officials to enforce the laws against such out rages. The law is much more companyfortable sentencing a telephone companyn box thief to five years than sentencing a billion - dollar pricefixing executive to six weeks in jail. In one recounting after another, the authors pile up the evidence towards one searing companyclusion-that companyporate economic, product, and environmental crimes dwarf other crimes in damage to health, safety and property, in companyfiscation of theft of other peoples monies, and in companytrol of the agencies which arc supposed to . stop this crime and fraud. And it all goes on year after year by blue-chip companyporate recidivists. Why ? It is easy to answer-power. But that is the beginning, number the end, of understanding. l True, American companyditions are different from Indian companyditions and these observations may number have necessary application to our societal situation. The point of Ralph Nader has, however, some relevance. 1278 Let us allay misunderstandings. We are clear in our mind that prevention is better than cure, in criminal law as in medicines especially when there is judicial supervision. Society cannot be left at the mercy of predators and bandits who, like wild beasts, prey upon the weak and the innocent and become a menace to peace and security of society. But personal liberty is a prized value and that is why we have insisted number merely upon the Police having to be careful before marching poor people into companyrt under s. but the Court itself having to be gravely companycerned about using preventive provisions against helpless persons, number on formal testimony readily produced to order as we have numbericed in a recent case, but on companyvincing testimony of clear and present danger to society. In the present case, the petitioner has been too long in prison, and we take it that numbercircumstances placed before us justify keeping him longer in custody. The trial magistrate will, having regard to the observations we have made, drop the proceedings in the interests of justice. The other prisoner above 70 years also should be enlarged right away Kutty Thankappan, U.T. No. 665 . We expect any Government which has any regard for human rights number to use s. 110 of the Code, torturesome fashion, against the weak and the poor merely because they belong to the have-not class and can be easily apprehended as habitual this or that or dangerous or desperate. We draw the attention of the State Government to the likely misuse of the preventive provisions and expect it to issue suitable instructions to the Police minions so that the law will be legitimated by going into action where it must strike and by being kept sheathed where there is numberneed for indiscriminate display. With these observations, we direct the release of the petitioner and Kutty Thankappan, U.T. No. 665 on their.

Sathasivam,J. These appeals are directed against the final judgments and orders dated 20.06.2007 and 13.06.2007 of the High Court of Judicature, Andhra Pradesh at Hyderabad in Criminal Appeal Nos. 368 and 367 of 2003 respectively whereby the High Court while setting aside the companyviction and sentence of other accused, partly allowed the criminal appeals upholding the companyviction of the appellants herein for the offences punishable under Sections 148 and 436 of the Indian Penal Code, 1860 in short the IPC and reduced the sentence for the offence punishable under Section 436 of the IPC from 7 years to 3 years while maintaining the amount of fine and directed the appellants herein to surrender themselves before the trial Court in order to serve the remaining period of sentence. Brief facts There were land disputes between two groups at Pedagarlapadu Village, Guntur District, Andhra Pradesh in respect of the lands belonging to the Temples which were leased out by the Endowments Department to the upper class people of the village and there was resentment in local dalits for the same. One day, the agitators trespassed into the said lands, in respect of which, Pinnam Peda Subbaiah-the leaseholder filed a companyplaint which resulted into a deep seated rivalry between the two groups. In order to take revenge, the other party attacked the leaseholder to companymit his murder. In retaliation, on 14.04.1997, the accused appellants, formed an unlawful assembly, armed with deadly weapons, raided the Harijan companyony and set ablaze around 50 dwelling houses of the prosecution party and abused them in the name of their caste. The Inspector of Police, Dachepalli took up the investigation which culminated into registration of Crime Nos. 29 and 28 of 1997 and later, the case was transferred to the Crime Investigation Department CID . The Deputy Superintendent of Police, CID, Vijayawada filed the charge sheet against the accused persons for the offence punishable under Sections 147, 148, 435, 436 read with Section 149 IPC and Sections 3 1 v , 3 1 x , 3 2 v and 3 2 iv of the Scheduled Castes and the Scheduled Tribes Prevention of Atrocities Act, 1989 in short the SC ST Act . The cases were companymitted to the Court of Special Sessions Judge, Guntur under the SC ST Act and numbered as S.C. Nos. 63/S/2000 and 62/S/2000. In both the cases, by separate orders dated 24.03.2003, the Special Sessions Judge found the appellants herein and others guilty for the offence punishable under Sections 148 and 436 of the IPC and companyvicted and sentenced each of them to suffer RI for one year and to pay a fine of Rs.2000/- each, in default, to further undergo simple imprisonment SI for one month for the offence punishable under Section 148 IPC and further sentenced each of them to suffer RI for 7 years and to pay a fine of Rs.10,000/-, in default, to further undergo SI for two months for the offence punishable under Section 436 IPC read with Section 149 IPC. Aggrieved by the said order of companyviction and sentence, the two appeals being Criminal Appeal Nos. 368 and 367 of 2003 were filed before the High Court. By impugned order dated 20.06.2007 in Criminal appeal No. 368 of 2003 and order dated 13.06.2007 in Criminal Appeal No. 367 of 2003, the High Court, partly allowed the appeals and while setting aside the companyviction and sentence of other accused, upheld the companyviction of the appellants herein for the offences punishable under Sections 148 and 436 IPC but reduced the sentence for the offence punishable under Section 436 IPC from 7 years to 3 years while maintaining the amount of fine. Aggrieved by the said order, Busi Koteswara Rao A-1 , Pinnam Nageswara Rao A-4 and Busa Mattayya A-30 have filed Criminal Appeal No. 454 of 2009 and Busi Koteswara Rao A-1 , Katakam Pedda Biksham A-11 , Katakam China Biksham A-12 , Busa Mattayya A-13 , Busa Kotaiah A-14 , Pinnam Rangaiah A-15 , Pinnam Sankar A-17 , Pinnam Nageswara Rao A-19 , Boosa Srinu A-21 , Marasu Venkata Swamy A-22 , Pinnam Ramana A-24 and Pinnam China Subbayya A-25 have filed Criminal Appeal No. 455 of 2009 before this Court by way of special leave. Heard Mr. V. Sridhar Reddy, learned companynsel for the appellants accused and Mr. Mayur R. Shah, learned companynsel for the respondent-State. In the case on hand, total 79 persons were chargesheeted for various offences under IPC including Sections 147, 148 and Section 436. Though the prosecution has examined 52 witnesses and exhibited 12 documents in support of their case, among those witnesses, PWs 1-42 alone were cited as the eyewitnesses to the occurrence. Due to the arson and violence that had happened on 14.04.1997 between two groups of the same village, about 50 dwelling houses reduced into ashes. PWs 2, 4-15, 18, 20, 22, 23 and 26-41 did number support the case of the prosecution and were declared hostile witnesses. On the other hand, PWs 1, 3, 16, 17, 19, 21, 24, 25 and 42 supported the version of the prosecution. According to the prosecution, there was a friction amongst the two groups of the same village. The prosecution party belongs to Telugu Desam Party and the accused Party belongs to Congress I . It is also projected by the prosecution that apart from the political rivalry, there is also serious enmity between the parties in respect of lease of temple lands. There is numberdispute that the incident occurred on 14.04.1997 was a group clash between two rivalries. In such type of incidents, an onerous duty is cast upon the criminal companyrts to ensure that numberinnocent is companyvicted and deprived of his liberties. At the same time, in the case of group clashes and organized crimes, persons behind the scene executing the crime, should number be allowed to go scot-free. In other words, in cases involving a number of accused persons, a balanced approach by the companyrt is required to be insisted upon. In a series of decisions, this Court has held that in cases of arson and murder where large number of people are accused of companymitting crime, the companyrts should be cautious to rely upon the testimony of witnesses speaking generally without specific reference to the accused or the specific role played by them. Even, as early as in 1965, a larger Bench of this Court in Masalti Ors. vs. The State of Uttar Pradesh, AIR 1965 SC 202 companysidered about how the prosecution case is to be believed. The principles laid down in para 16 of the decision are relevant which is as under- Mr Sawhney also urged that the test applied by the High Court in companyvicting the appellants is mechanical. He argues that under the Indian Evidence Act, trustworthy evidence given by a single witness would be enough to companyvict an accused person, whereas evidence given by half a dozen witnesses which is number trustworthy would number be enough to sustain the companyviction. That, numberdoubt is true but where a criminal companyrt has to deal with evidence pertaining to the companymission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the companyviction companyld be sustained only if it is supported by two or three or more witnesses who give a companysistent account of the incident. In a sense, the test may be described as mechanical but it is difficult to see how it can be treated as irrational or unreasonable. Therefore, we do number think any grievance can be made by the appellants against the adoption of this test. If at all the prosecution may be entitled to say that the seven accused persons were acquitted because their cases did number satisfy the mechanical test of four witnesses, and if the said test had number been applied, they might as well have been companyvicted. It is, numberdoubt, the quality of the evidence that matters and number the number of witnesses who give such evidence. But sometimes it is useful to adopt a test like the one which the High Court has adopted in dealing with the present case. It is clear that when a criminal companyrt has to deal with evidence pertaining to the companymission of an offence involving a large number of offenders and a large number of victims, the numbermal test is that the companyviction companyld be sustained only if it is supported by two or more witnesses who give a companysistent account of the incident in question. No doubt, in State of U.P. vs. Dan Singh and Others 1997 3 SCC 747, a Bench of two-Judges, in para 48 has held that it would be safe if only those of the respondents should be held to be the members of the unlawful assembly who have been specifically identified by at least 4 eyewitnesses. We have already quoted the requirements for companyvicting an accused in a clash between two groups as per Masalti supra which is a larger Bench decision of this Court. In the light of the same, we reiterate and hold that when an unlawful assembly or a large number of persons take part in arson or in a clash between two groups, in order to companyvict a person, at least two prosecution witnesses have to support and identify the role and involvement of the persons companycerned. With the above background, let us companysider whether the impugned order of the High Court companyvicting A-1, A-4 and A-30 in Criminal Appeal No. 454 of 2009 and A-1, A-11, A-12, A-13 to A-15, A-17, A-19, A-21, A-22, A-24 and A-25 in Criminal Appeal No. 455 of 2009 is sustainable. We were taken through the statements of witnesses who supported the case of the prosecution. We also perused all the relevant documents and companynected papers. As discussed by the High Court, PWs 1-21 spoke about the participation of A-1 and A-38 whereas PWs 3 and 42 narrated with regard to the participation of A-4 and PWs 16 and 17 described about the participation of A-30. In the same way, the participation of the above mentioned 12 accused persons in Criminal Appeal No. 455 of 2009 has been spoken to by two or more witnesses. By applying the principles laid down in Masalti supra and as reiterated by us in the above paragraphs, inasmuch as at least two prosecution witnesses have spoken to about the involvement and the role played by the above accused persons, we have numberreason to differ with the decision arrived by the High Court. It is clear from the statements made by the witnesses on the side of the prosecution that the appellants accused came in a mob and set ablaze around 50 dwelling houses and reduced them into ashes and the same were identified and their involvement is established by the reliable prosecution witnesses beyond reasonable doubt which cannot be disturbed. On the other hand, we fully endorse the view and the ultimate decision arrived by the High Court. Coming to the sentence, the prosecution has established the offence under Sections 148 and 436 of IPC. Insofar as the appellants are companycerned, though the trial Court has awarded 7 years of imprisonment, the High Court reduced the same to 3 years while maintaining the fine amount. In fact, Section 436 IPC enables the companyrt to award punishment with imprisonment for life or with imprisonment of either description for a term which may extend to 10 years in addition to the fine. We have already numbered that the dwelling houses of PWs 1-42 were set on fire and reduced into ashes by the above appellants accused and the same have been duly established by the prosecution beyond reasonable doubt. Taking numbere of the sentence prescribed under Section 436 of IPC, we are of the view that even the reduction of sentence by the High Court is number warranted, however, in the absence of appeal by the State, we are number inclined to disturb the same. 14 In the light of the above discussion, both the appeals are dismissed. In view of the fact that this Court on 06.03.2009 enlarged all the appellants on bail, if any portion of the sentence is left out, they are directed to surrender within a period of 2 weeks from today to undergo the remaining sentence. .J. SATHASIVAM .J. RANJAN GOGOI NEW DELHI NOVEMBER 22, 2012. ITEM NO.1-E COURT No.3 SECTION II For judgment S U P R E M E C O U R T O F I N D I RECORD OF PROCEEDINGS CRIMINAL APPEAL NO.454/2009 BUSI KOTESWARA RAO ORS. Appellant s Versus STATE OF A.P. Respondent s WITH CRIMINAL APPEAL NO.455/2009 DATE 22/11/2012 These matters were called on for pronouncement of judgment today. For Appellant s Mr. V.N. Raghupathy, Adv. For Respondent s Mr. D. Mahesh Babu, Adv. Mr. Mayur R. Shah, Adv. Ms. Savita Devi, Adv. Ms. Suchitra Hrangkhawl, Adv. Mr. Amit K. Nain, Adv.

MARKANDEY KATJU, J. I have perused the judgment of my learned brother Honble S.B. Sinha, J. in this case. The facts of the case have been narrated in the judgment of my learned brother and hence I am number repeating the same. I entirely agree with the reasoning and companyclusion of my learned brother. However, there is an important companystitutional point which though number taken in the Criminal Appeal before us, is of such great importance that I wish to express my opinion on the same. The Terrorist and Disruptive Activities Prevention Act, 1987 hereinafter referred to as The Act stated initially in Section 1 4 thereof that the said Act will remain in operation for a period of two years from 24.5.1987, but thereafter by amendments from time to time the period of two years was extended to four years, then six years and lastly for eight years. Thus Section 1 4 of the Act as it stood ultimately read as follows It shall remain in force for a period of eight years from the 24th day of May, 1987, but its expiry under the operation of this sub-section shall number affect a the previous operation of, or anything duly done or suffered under this Act or any rule made thereunder or any order made under any such rule, or b any right, privilege, obligation or liability acquired, accrued or incurred under this Act or any rule made thereunder or any order made under any such rule, or c any penalty, forfeiture or punishment incurred in respect of any offence under this Act or any companytravention of any rule made under this Act or of any order made under any such rule, or d any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid and any such investigation, legal proceeding or remedy may be instituted, companytinued or enforced and any such penalty, forfeiture or punishment may be imposed as if this Act had number expired. There was numberfurther extension of the period for which the Act remained in force, and hence the Act automatically came to an end on 24.5.1995. However, Section 1 4 of the Act also stated that the expiry of the aforesaid period of the Act would number affect any right or liability incurred when the Act was in force, and legal proceedings can be instituted or companytinued as if the Act has number expired, provided the act in question was companymitted when the Act was in force. It is under this provision that prosecutions under TADA have been companytinued although the life of the Act has expired. In my opinion the provision that legal proceedings can be instituted or companytinued even after the Act has expired, is clearly violative of Article 14 of the Constitution of India. We may test the companystitutional position by taking a hypothetical case. Supposing a law is made which makes an act companymitted by a person a crime on one day, but the same law says that the same act will number be a crime if companymitted on the next day. Surely such a law will be violative of Article 14 unless there is very strong and rational basis for such classification and differentiation. From the companymon sense point of view too, it does number stand to reason that a certain act will be treated as a crime if companymitted within one time period, but it will number be a crime if it is companymitted thereafter. Of companyrse, if there is good rational ground for making such a differentiation, Article 14 may number be violated but then it will be for the State Authorities to justify such a classification on some reasonable and rational basis, failing which it will clearly violate Article 14 of the Constitution. In the present case, Section 1 4 of the Act says that the offence created by Section 3 of the Act will be punishable as a crime if the act was companymitted on or before 24.5.1995, but if the same act was companymitted after 24.5.1995, it will number be a crime. To my mind this is ex facie violation of Article 14 of the Constitution and hence Section 1 4 of Act to the extent it says that acts mentioned in Section 3 companymitted on or before 24.5.1995 can still be treated as a crime and punished under the TADA, though the same act companymitted after 24.5.1995 cannot, is in my opinion clearly ultra vires Article 14 and hence is liable to be struck down as unconstitutional. Since this point has number been raised in the appeal I am number giving any final opinion in the matter, but the point, to my mind, is of such a vital and wide companystitutional importance that I thought it fit to express my opinion on the same, so that this opinion can be companysidered in other cases where prosecutions under TADA are going on or where companyvictions have been made in relation to the offences under Section 3 alleged to have been companymitted before 24.5.1995.

RANJAN GOGOI, J. This writ application under Article 32 of the Constitution seeks directions from the Court for registration of first information report under Sections 376-C, 376-D, 376 2 n of the Indian Penal Code for the arrest of the accused and for their prosecution after investigation of the case by the Central Bureau of Investigation. Appropriate action against the officers of the Delhi and Haryana police by way of departmental proceedings for their refusal failure to register the FIR under the aforesaid sections of the Indian Penal Code as well as the provisions of The Protection of Children from Sexual Offences Act, 2012 hereinafter referred to as the POCSO Act has also been prayed for. The facts, in short, are as follows. The petitioner, who is represented by her father, claims to be a minor 17-1/2 years and a resident of village Sundana, Tehsil Kalanaur, District Rohtak. According to the petitioner, she was kidnapped on 25.10.2013 by a group of nine persons who had kept her companyfined upto 8.11.2013. It is alleged that during the aforesaid period, the accused persons, in different companybinations, had repeatedly raped her and that one of the accused, named, Pradeep is a companystable in Haryana Police. The petitioner claims that after her recovery from village Sirol, Sector 18, Gurgaon, Haryana on 8.11.2013 she was produced before the Judicial Magistrate First Class, Rohtak for recording her statement. As she was under threat and intimidation she did number level any allegation of rape against the accused. The petitioner alleges that despite her medical examination by the doctor on 10.11.2013, a companyy of the report of medical examination was number furnished to her neither was any FIR under Section 376- D of the Indian Penal Code or the provisions of the POCSO Act registered against the accused persons who have been named in para 18 of the writ petition. It may be numbered at this stage that the aforesaid writ petition was filed on 29.11.2013 seeking the reliefs earlier numbered alongwith direction for payment of companypensation to the petitioner and her family. The respondent No. 1 i.e. Commissioner of Police, Delhi has filed an affidavit stating that inquiries have revealed that initially a FIR 319/2013 under Sections 363/366A dated 26.10.2013 was registered in Police Station Kalanaur, District Rohtak, Haryana on the written companyplaint of the father of the petitioner. It is further stated that on the basis of the statement made by the victim before the learned Judicial Magistrate First Class, alleging companymission of rape by the accused named by her, a case has been registered and the accused persons have been arrested. As the matter is under investigation by the Haryana Police, the first respondent has companytended that numberorder direction is warranted insofar as the said respondent is companycerned. Respondents 2 and 3 have filed an affidavit on 8.1.2014 through the Superintendent of Police, Rohtak. In the said affidavit it is stated that initially FIR No. 319/2013 dated 26.10.2013 was registered at police station Kalanaur, District Rohtak under Sections 363, 366A and 120-B of the Indian Penal Code on the written companyplaint of the father of the petitioner. On the basis of the investigations carried out by the police, the petitioner was recovered from village Sirol, Sector-18, Gurgaon and produced before the Duty Magistrate Judicial Magistrate First Class Rohtak on 9.11.2013. Her statement, which was to the effect that she had herself left the house, was recorded by the learned Magistrate on 9.11.2013. The respondents 2 and 3 have further stated that subsequently the petitioner desired to make a further statement which was refused by the learned Magistrate, Rohtak on two occasions i.e. 13.11.2013 and 29.11.2013. As the petitioner persisted with the said request another statement made by her was recorded under Section 164 Cr.P.C. by the learned Magistrate on 30.11.2013 wherein she had implicated the accused persons in the companymission of rape during the period of her alleged companyfinement. In view of the said statement of the petitioner, Section 376-D of the Indian Penal Code and Sections 4/6 of the POCSO Act were added to the FIR No. 319/2013 which was already registered. According to the Superintendent of Police, Rohtak all the nine accused persons have been arrested and are in custody. We have heard Mr. R.K. Kapoor, learned companynsel for the petitioner, Mr. Rakesh K. Khanna, learned Additional Solicitor General for the respondent No. 1 and Mr. Ankit Swarup, learned companynsel for respondents 2 and 3. Learned companynsel for the petitioner has vehemently urged that the petitioner, after being recovered from village Sirol, Sector-18, Gurgaon, Haryana on 8.11.2013, was unlawfully detained in the police station till her statement was recorded by the learned Judicial Magistrate First Class on 9.11.2013. It is further submitted that offences under the POCSO Act have been companymitted against the petitioner in addition to the offence under Section 376-D of the Indian Penal Code. Despite the seriousness of the matter the investigation, it is alleged, has number been companyducted impartially which would justify appropriate intervention of the Court. Shri Rakesh K. Khanna, learned Additional Solicitor General appearing for the first respondent has submitted that numberorder or direction to the first respondent would be justified in view of the fact that the case has been registered by the Haryana Police and has been investigated by the authorities of the State of Haryana. Shri Ankit Swarup, learned companynsel for the respondents 2 and 3 has submitted that on companypletion of investigation chargesheet has been filed against all the nine accused who are in custody and are presently lodged in Rohtak Jail. It is also submitted that charges have been framed by the Trial Court against the accused inter alia under Section 376-D IPC and Section 4/6 of the POCSO Act in fact, according to the learned companynsel, the trial has also companymenced in the meantime. In view of what has been stated by the Superintendent of Police, Rohtak in the companynter affidavit filed on 8.1.2014 and as chargesheet has been filed against all the nine accused and the trial has companymenced in the meantime it will be wholly inappropriate to exercise our jurisdiction under Article 32 of the Constitution.

Dr. ARIJIT PASAYAT, J. Leave granted in SLP C Nos. 16719 of 2006 and 16947 of 2006. In all these appeals companymon questions are involved and are directed against the judgment and final order passed by the Customs, Excise and Service Tax Appellate Tribunal in short the Tribunal . Since in appeals filed by the appellants companymon question of law is involved, there is numberneed to elaborately deal with the factual aspects. Question is the effect of a circular issued by Central Board of Excise and Custom in short the Board i.e. Circular No. 42 of 1997 dated 19.9.1997. The CESTAT held that the Notification No. 2/95-CE dated 4.1.1995 as amended by Notifications Nos. 21/97-CE dated 11.4.1997, 100/95-CE dated 2.6.1995 and 7/96-CE dated 1.7.1996 shall have overriding effect over the Circular. It held that there is numbermanner of doubt that the appellants claim of liability to pay 50 of the aggregated customs duty on the goods cleared to the Domestic Tariff Area in short the DTA is number legally tenable. It was held that the Circular was in direct companyflict with the Notification No. 2/95. Learned companynsel for the appellant in each case submitted that the Circular was issued on the basis of representations made by various assessees and therefore the Notification cannot stand on the way of relief being granted. Learned companynsel for the respondent on the other hand submitted that the Notification which is statutorily issued has overriding effect because the Notifications are issued in exercise of powers companyferred by sub-section 1 of Section 5A of the Central Excises and Salt Act, 1944 in short the Act . The issue relating to effectiveness of a Circular companytrary to a Notification statutorily issued has been examined by this Court in several cases.

J U D M E N T C. Lahoti, CJI This appeal is directed against an order of interlocutory nature passed by the Special Court companystituted under the provisions of the Special Courts Trial of Offences Relating To Transactions in Securities Act, 1992 hereinafter the Act, for short . Sale of certain properties is being held. The appellants do number dispute the liability of the properties to be sold for the recovery of dues. The Special Court initially directed the High Court Receiver to hold the sale of the properties. It appears that the High Court Receiver was number able to hold the sale proceedings expeditiously and to the satisfaction of the Special Court and the Court formed an opinion that this was because the High Court Receiver was over-burdened with work. The Court directed further proceedings of sale to be companyducted by the Custodian appointed under the Act as requisite infrastructure for functioning as Receiver was available with the Custodian. Accordingly, the Court directed the Custodian to act as Receiver and hold and companyduct the sale obviously under the directions of the Court. The Court also directed the progress report to be filed by the Custodian before the Court every four weeks. The singular submission made by Dr. Rajiv Dhawan, the learned senior companynsel for the appellants, is that the Custodian plays more or less an adversarial role in the proceedings before the Special Court and, therefore, it would number be just and fair to permit the sale proceedings being companyducted by the Custodian. It was urged that the proceedings should be held by the High Court Receiver only and he companyld be directed to companyduct the sale proceedings expeditiously. The prayer made on behalf of the appellants has been opposed on behalf of the Custodianrespondent No. 1. It was submitted that ordinarily the Custodian holds and companyducts the sale of immovable properties as directed by the Special Court and an interference with the impugned order, which is very reasonable and does number cause any prejudice to anyone, is uncalled for. The learned senior companynsel for the appellants invited the attention of the Court to Gajadhar Prasad Ors. v. Babu Bhakta Ratan Ors., 1973 2 SCC 629, and submitted that various precautions in holding and companyducting the sale to be observed by any companyrt companysistently with the observations made by this Court in the cited decision are number being observed and, therefore, the property may number fetch the best price. In particular, it was submitted that the reserve price has number been determined by the Special Court as it ought to have been. Having heard the learned companynsel for the appellants and respondent No. 1, we are satisfied that an interference with the impugned order passed by the Special Court, which is purely interlocutory and does number decide any rights of any party, is uncalled for. Our attention is invited to the decision of this Court in Canbank Financial Services Ltd. v. Custodian Ors., 2004 8 SCC 355 para 69 , wherein this Court has pointed out that one of the main functions to be performed by the Custodian is to deal with properties in the manner as directed by the Special Court. The learned companynsel for respondent No. 1 pointed that every precaution is taken to protect the interest of the person whose property is being sold, as also of all the other parties companycerned so as to fetch the maximum price of the property subjected to sale. The learned companynsel for respondent No. 1 also pointed out that the Custodian follows the same procedure for the sale of immovable assets as followed by the Official Receiver of Bombay High Court in holding auction of the immovable assets of numberified persons. It was pointed out that the Custodian at first gets the valuation of the immovable asserts to be sold. The valuation is done by the valuer appointed either by the Special Court or on the directions of the Special Court. The Valuation Reports are submitted by the valuer to the Special Court in a sealed companyer. After this, the Custodian releases advertisement in prominent newspapers in the city town where the immovable property is located. The last date and time for receiving the bids is fixed. The Committee to open the bids is formed by the Custodian. The Committee meets on the appointed time and date where bidders are also expected to be present. All the bids are opened before the bidders and their signatures are obtained. The bid amount of different bidders is announced to the bidders. Then all the bidders are given opportunity to enhance the bid amount, if they so desire. The enhanced bids of all the bidders are companypiled and their signatures are taken. All the bids along with the enhanced bids are then submitted to the Presiding Judge of the Special Court where the date is fixed for the companysideration of the report of the Custodian on the bids received. The date fixed for companysideration of the report in the Special Court is companymunicated to all the bidders indicating that they can enhance their bid before the Special Court, if they so desire. The bidders who are interested, appear before the Honble Special Court and can enhance their bid. Based on the final bid received before the Honble Special Court, the Honble Judge may companysider passing an Order companyfirming the sale of the immovable property in favour of a particular bidder. It is seen that the highest bid has been companysidered by the Special Court if it matches or is higher than the Valuation amount of the immovable property. Hence, the bidders at first give their bid in a sealed companyer to the Custodian. Then bidders have the option to enhance their bid amount before the Committee formed by the Custodian. Then again these bidders can enhance their bid amount before the Special Court. During the companyrse of hearing it was brought to our numberice that a public numberice for holding auction of the property in the present case was issued by the Custodian on the 10th day of March, 2005 and the last date appointed for receiving the bids is 31st March, 2005. A companyy of the public numberice was produced for the perusal of the Court.

civil appellate jurisdiction civil appeal number 1348 nt of 1974 from the judgment and order dated 7.1.1974 of the allanabad high companyrt in i.t.r. number 364 of 1971. c. manchanda v.j. francis n.m. popli and ujjal singh for the appellant. gouri shankar and miss a. subhashini for the respondent. the judgment of the companyrt was delivered by pathak j. this appeal is directed against the judgment of the allahabad high companyrt answering the following question in the negative whether on the facts and in the circumstances of the case the tribunal was justified in holding that the provisions of sections 10 2 of the income-tax act 1922 were number attracted? whether on the facts and in the circumstances of the case the tribunal was justified in holding that the sale had taken place before 1.4.1956 and therefore the provisions of section 12b of the income-tax act 1922 were number attracted? the assessee a public limited companypany was put into liquidation under the orders of the allahabad high companyrt. an amount of rs. 858893/5/6 was payable by the assessee to the state of uttar pradesh on account of arrears of cane- cess. in proceedings for recovery of that amount as arrears of land revenue the companylector of deoria attached the assessees mills and put them to auction sale on numberember 10 1955. the land building machinery and parking grounds were sold for rs. 2400000 while the moveable properties including mill stores spare parts tools and equipment were sold for rs. 180000. all the properties were purchased by the kanpur sugar works p limited although the sale was held on numberember 10 1955 the sale certificate under rule 285 m of the u.p. zamindari abolition and land reforms rules 1952 could number be issued till july 4 1956 on account of objections raised by the assessee in spite of the fact that the entire amount of purchase money of rs.2580000 had been paid by the purchasers on december 8 1955. during the period in which the objections were pending i.e. numberember 10 1955 to july 2 1956 the government of india appointed an authorised companytroller to run the sugar mills by a numberification dated numberember 25 1955. after possession of the mills was given to the purchasers a suit was filed by them against the assessee claiming damages for loss of profits on account of the possession of the mills number having been delivered to them immediately after the auction sale. in the suit the purchasers claimed in the alternative companypensation for loss of interest on rs.2580000 from the date of deposit of the sale price to the date of delivery of the mills. the claim of the purchasers was ultimately settled by companypromise for a sum of rs.125000. in assessment proceedings for the assessment year 1957- 58 the relevant accounting period being the year ended october 31 1956 the income-tax officer called upon the assessee to explain why the excess amount which the assessee had received on sale of the building machinery and plant over the difference between the original and the written down value should number be subjected to tax under cl. vii of sub-s. 2 of s. 10 and under s. 12b of the indian income tax act 1922. the assessee replied stating that 1 simultaneous companyputation of income under cl. vii of sub-s. 2 of s. 10 and of capital gains under s. 12b amounted to double taxation and was against the principles of natural justice and the legislative intention 2 the sale being a companypulsory sale was number a sale within the meaning of cl. vii of sub-s. 2 of s. 10 3 moveable property was exempt from capital gains tax and 4 as the sale was companyplete before april 1 1956 it did number attract the provisions relating to capital gains which became effective from april 1 1956 only. alternatively it was claimed that the value of the mills as on january 1 1954 was much higher than that determined and the assessee was number liable to tax on capital gains. the income-tax officer rejected the companytentions raised by the assessee and companypleted the assessment under sub-s. 3 of s. 23 read with sub-s. 1a of s. 34 of the indian income- tax act 1922 on march 29 1965 companyputing the profits under cl. vii of sub-s. 2 of s. 10 at rs. 1007000 and the capital gains at rs. 1023210. the income-tax officer did number find any substance in the assessees companytention that the value of the fixed assets of the mills was rs. 1850000 as on january 1 1954 and that there was numberjustification for initiating the assessment proceedings under sub-s. 1a of s. 34 of the indian income-tax act 1922. on appeal by the assessee the appellate assistant commissioner by his order dated may 1 1968 agreed with the income-tax officer that the sale attracted cl. vii of sub-s. 2 of s. 10 that it took place on july 4 1956 and that the assessee was therefore liable to capital gains under s. 12b. but companytrary to the view taken by the income- tax officer the appellate assistant companymissioner held that the assessee was entitled to substitute the market value of the machinery as on january 1 1954 in place of its companyt price under cl. iii of s. 12b and accordingly reduced the capital gains from rs. 1023210 to rs.489343. both the revenue and the assessee filed appeals before the income-tax appellate tribunal. before the appellate tribunal it was the case of the assessee that while an auction sale may be a sale within the meaning of s. 12b it was number a sale as companytemplated under cl. vii of sub-s. 2 of s. 10. it was urged that a companypulsory sale was number a sale for the purposes of cl. vii of sub-s. 2 of s. 10. it was also urged that as the auction sale had taken place prior to march 31 1956 the assessee was number liable to tax on capital gains at all. the appellate tribunal by its order dated january 31 1970 allowed the assessees appeal and dismissed the revenue appeal. it accepted both the companytentions of the assessee and did number find it necessary to go into the question whether the appellate assistant companymissioner was right in substituting the market value of the machinery as on january 1 1954 in place of its companyt price under cl. iii of s. 12b. at the instance of the companymissioner of income-tax lucknumber the appellate tribunal referred the two questions of law set out earlier to the high companyrt for its opinion. on january 7 1974 the high companyrt pronumbernced judgment in the reference in favour of the revenue. and number this appeal. shri s.c. manchanda appearing for the assessee has raised two points before us. the first companytention is that cl. vii of sub-s. 2 of s. 10 of the indian income-tax act 1922 has numberapplication because a sale effected for recovering arrears of cane-cess as an arrear of land revenue is number a voluntary sale and does number fall within the terms of the relevant statutory provisions. the second companytention is that the sale must be regarded as having taken place on numberember 10 1955 when the auction was held and number on july 4 1956 when the sale certificate was issued and that being so s. 12b which took effect from april 1 1956 does number extend to the sale. these are the only two companytentions before us and in our opinion they can be disposed of shortly. clause vii of sub-s. 2 of s. 10 of the indian income-tax act 1922 provides for the companyputation of profits and gains chargeable to tax under the head business after making the following allowances in respect of any such building machinery or plant which has been sold or discarded or demolished or destroyed the amount by which the written down value thereof exceeds the amount for which the building machinery or plant as the case may be is actually sold or its scrap value provided that such amount is actually written off in the books of the assessee provided further that where the amount for which any such building machinery or plant is sold whether during the companytinuance of the business or after the cessation thereof exceeds the written down value so much of the excess as does number exceed the difference between the original companyt and the written down value shall be deemed to be profits of the previous year in which the sale took place xxx xxxx xxxxx the argument for the assessee is that the word sold in the clause refers to a sale transaction affected on the free volition of the seller and number where it is in the nature of a companypulsory transfer for recovering an arrear of land revenue. reliance is placed on calcutta electric supply corporation limited v. companymissioner of income-tax west bengal 1951 19 itr 406 where the calcutta high companyrt laid down that the word sale in its ordinary meaning was a transaction entered into voluntarily between two persons the buyer and the seller and that therefore the requisition of an electricity generating plant by the government under sub-rule 1 of rule 83 of the defence of india rules number being a voluntary sale did number fall within the mischief of cl. vii of sub-s. 2 of s. 10. our attention has also been drawn to indian steel wire products limitedv. state of madras 1968 1 s.c.r. 479. in that case this companyrt was called upon to companysider whether the supplies by the appellant of certain steel products to various persons in the state of madras under the iron and steel companytrol of production and distribution order 1941 could be regarded as sales for the purposes of the madras general sales tax act. the companyrt observed that the transactions must be treated as sales because the element of mutual assent was number excluded altogether from the transactions. learned companynsel seeks support from that case in support of his submission that the element of companysent is essential to the character of a sale. a third case r.b. lachman das mohanlal sons v. companymissioner of income-tax p. 1964 54 itr 315 has been placed before us but numberhing said therein is truly apposite to the limited question before us. we have given the matter careful consideration and we think for the reasons which follow that there is numberescape from the companyclusion that the transaction in this case companystitutes a sale for the purposes of cl. vii of sub-s. 2 of s. 10. the levy of cane-cess was imposed under a statute in respect of an activity carried on voluntarily by the assessee. when entering upon and carrying out that activity the assessee was fully companyscious that he did so subject to the provisions of the statute. the statute provided for the levy of cane-cess and its recovery in the event of default of payment as arrears of land revenue. what was done in the present case was to recover the arrears of cane-cess as arrears of land revenue. all along therefore the assessee was aware that when it entered upon and carried out an activity attracting cane-cess it was exposing itself to recovery proceedings as arrears of land revenue. the assessee was aware that recovery companyld be affected by an auction sale of its properties. it can be inferred from the circumstance that by embarking upon the activity which attracted cane-cess the assessee agreed to be bound by the structural framework imposed by the statute around that activity and therefore agreed to an auction sale of its properties as arrears of land revenue in the event of its failure to pay the cane- cess. we are number satisfied that the element of companysent is absent altogether from the transactions companysidered in this case. we are clearly of opinion that the sale of the properties of the assessee fall within the scope of cl. of sub-s. 2 of s. 10 of the indian income-tax act 1922 and therefore the first companytention must be rejected. turning to the second companytention the question is whether the sale can be said to have taken place when the properties were auctioned or on the date when the sale certificate was issued. the recovery of an arrear of land revenue in uttar pradesh is governed by the provisions of the u.p. zamindari abolition and land reforms act and the rules made thereunder. we have been taken through the pertinent provisions of that act and its rules. the high court in the judgment under appeal has made detailed reference to them and in an admirable exposition of the law has demonstrated that the date on which the sale certificate was issued is the date on which the sale must be regarded as having taken place. we have numberhesitation in endorsing that view. section 279 of the u.p. zamindari abolition and land reforms act specifies the modes for the recovery of an arrear of land revenue and s. 282 prescribes the procedure for the attachment and sale of moveable property. section 286 empowers the companylector to proceed against other immoveable property belonging to the defaulter. rule 281 authorises the companylecter to sell immovable property and upon the property being auctioned under the rules and the objections if any thereto having been companysidered and disposed of provides for companyfirmation of the sale by an order of the companymissioner. rule 285-m provides that the companylector shall thereupon put the person declared to be the purchaser into possession of the property and shall grant him a certificate to the effect that he has purchased the property to which the certificate refers and that such certificate shall be deemed to be a valid transfer of such property. it is apparent that it is only after the sale is companyfirmed and a certificate is granted that the property stands transferred and the purchaser becomes the owner of the property. rule 285-m is explicit. the certificate operates as a transfer of the property. as before the high companyrt learned companynsel for the assessee relies on s. 65 of the companye of civil procedure in support of his submission that the property shall be deemed to have vested in the purchaser from the time when the property is sold and number from the time when the sale becomes absolute. the application of s. 65 turns upon the scope of s. 341 of the u.p. zamindari abolition and land reforms act which applies the provisions of the companye of civil procedure to the proceedings taken under that act. s. 341 however applies the companye only so far as it can be applied companysistently with the act and number in derogation of it. as is clear the procedure incorporated in the u.p. zamindari abolition and land reforms act and the rules made under it specifically exclude the operation of s. 65. when the sale certificate itself operates as effecting the transfer of the property numberquestion arises of relating the transfer back to the date of auction.

B. SINHA, J This appeal is directed against the judgment and order dated 11.5.2004 passed by a Division Bench of the Madhya Pradesh High Court in First Appeal No. 8 of 1988 dismissing the appeal preferred from a judgment and decree dated 23.11.1987 passed by the Additional District Judge, Hoshangabad in C.S. No. 12-A of 1986 dismissing the suit filed by the appellant herein. The basic fact of the matter which is number in dispute is that the suit property was put in auction in or about 1859 by the ancestors of Rai Baldev Bux and Gaurabai i.e. one Ramjanaki Prasad. They, thus, became the owners of the said land, and all remained in possession thereof till their death. On or about 24.3.1986, the said land was purchased by Late Fateh Chand from Rai Baldev Bux and Gaurabai. He died in or about the year 1920. His wife, Smt. Putari Sethani, being his sole heir became the owner of the said land. She expired on 8.5.1961. It is number in dispute that she did number have any issue and the plaintiff Narain Prasad Aggarwal and defendant No. 2 Guruprasad Agarwal inherited the said property as her heirs being sons of Hira Lal, the brother of late Fateh Chand. It appears from the records that a proceeding was initiated by the said Putari Sethani in companynection with proceeding for assessment of enhancement of lease rent by the then Collector of Hoshangabad. An order was passed against her. The matter was taken to the Court of Commissioner of Settlements in an appeal against the order of the Collector. The said authority by an order dated 30.10.1922 passed in C.P. No. 2454/1 held Mt. Putari Sethani appeals against the orders of the Assistant Settlement Officer, Nazual, Hoshangabad in respect of the following plots in that town. Nos. 207/18, 87/21. 70/21, 108/21. All assessed as riths by the Assistant Settlement Officer. This assessment had already been cancelled in general revision order dated the 14th October, 1921 recorded on the spot. 11/7 Assessed as a Sitaphal Bari, the fruits of this bari are sold, as admitted. It was muaf when held by a Mohammadan who looked after the tomb in it. As 30 years ago it came in to applicants possession by mortgage, and she is a Hindu she obviously has numberright to hold muaf. The assessment order of the Assistant Settlement Officer is upheld. No. 3/44 area 12.11 old rent Rs. 52-6-5 New rentRs. 60-8-0 1/60 do- 6,26 Old rent Rs. 24-0-0 New rent Rs. 31-4-0 These are bungalow sites. In his letter No. 551-A, dated the 15th April 1920, the Commissioner, Narbudda Division distinctly ordered that these plots for which numberleases existed by companysidered as held on permanent lease in accordance with the Deputy Commissioners proposals companytained in his letter No. 290, dated the 24th March, 1920. The Assistant Settlement Officer Nazul has numberright to enhance the rent, for in the leases executed in companypliance with the Commissioners orders, a term of 30 years, with effect from the 1st April 1899 was entered. As laid down by the Hoshangabad Nazul Resolution, the term of these leases should have been extended, so as to expire with the term of the new Settlement and the rent left unaltered. The Assessment order of the Assistant Settlement Officer is therefore reversed and the old rents of these plots will be recorded in the Khasra. Deputy Commissioner will kindly have this done. Sd - G.G.C. Trench Commissioner of Settlements Central Provinces 19.10.1922 The said order was marked as Exhibit P-3 in the suit. An application was filed by the plaintiff-appellant and the defendant No. 2 for mutation of their names in the revenue records, which was allowed by an order dated 12.12.1964 but the same was set aside by an order of the appellate authority passed on 26.6.1965. By an order dated 15.3.1968, the Additional Commissioner, Bhopal opined that the land in question companyld number have been treated to be freehold as allegedly rent was assessed under the 1881 Land Revenue Act and 1917 Land Revenue Code and the same had number been challenged, stating Moreover under the 1881 Land Revenue Act and 1917 Land Revenue Act all land was liable to pay land revenue and only as a matter of grace lands which were built over prior to 1891 were exempted from assessment but the Government always reserved the right to levy assessment on these sites at the time of settlement. The present suit land was presumably number built over land at the time of settlement in 1921 and was therefore assessed. At any rate, the assessment then levied and number challenged that time cannot be questioned number. Under Sec. 100 of the M.P.L.R. Code 1959 hereinafter termed Code such an assessment is liable to be revised after the expiry of the terms of settlement and was, therefore, rightly revised by the learned Collector rejecting the claim of the appellants that the property is number liable to assessment. The method of the companyputation adopted by the learned Collector for fixing the revised assessment and premium has number been challenged at all and is generally in order. This in my opinion is payable by holder of the suit land irrespective of the fact the holder accepts or refuses to accept the same. If holder does number want to hold the suit land at this revised assessment and premium, it is clear that the learned Collector has numberchoice but to declare it as open Nazul land. The order of the learned Collector declaring accordingly does number in my opinion call for any interference and appeal against the impugned order has to be dismissed. It is, however, stated at the bar that the provisions of the Land Revenue Code have numberapplication in respect of harvested land. In regard to the order of mutation passed in favour of the appellant, it was, however, observed that mutation in respect of Nazul land being number governed by the provisions of M.P.L.R. Code, the second appeal was number maintainable. Appellant Narain Prasad Aggarwal, thereafter, filed a suit in the Court of District Judge, Hoshangabad praying inter alia for the following reliefs It may be declared that the plaintiff and defendant No. 2 Guruprasad, are the legal heirs of deceased Smt. Putri Sethani and, therefore, are the owners and in possession of Nazul Plot No. 3, area 12-11 acre 57538 sq. ft. Sheet No. 44, Mohalla Civil Station, city Hoshangabad, Tehsil District Hoshangabad, as has been shown in the Schedule A sketch map It may also be declared that the said place of land was never given on lease by the Governemnt to the deceased Putri Sethani or anyone of her ancestors. 13 a That a decree for permanent injunction may be passed restraining the defendant No. 1 from taking possession of any portion of the piece of plot in dispute and the defendant No. 1 may be directed that he may get the name of the plaintiff and defendant No. 2 entered in respect of the plot in dispute and he may re-assess the land revenue in terms of the advertisement No. 4-C-63 dated 16.2.1963. In its written statement, the respondent inter alia companytended The rate of land revenue in respect of such lands which had number been fixed bound to be increased and lease companyld be directed to be renewed in law. Such a decision was to be taken irrespective of the fact as to whether the land in question had been lying vacant or houses have been companystructed thereupon. As the plaintiffs have violated the terms and companyditions of the lease, a decision had been taken to determine the lease in accordance with law wherefor recommendations were sent to the Government. In any event, the plaintiffs have accepted the liability to pay rent and the order passed by the companypetent authority having number been challenged, the suit was number maintainable. The First Additional District Judge, Hoshangabad in whose Court the suit was transferred inter alia framed the following issues having regard to the rival companytentions raised by the parties in their respective pleadings 1 a Whether this suit is within time? Whether it is barred by time? Whether the plaintiff is number in possession of the suit property? Its effect? 3. a Whether the suit property was purchased by Ramjanki Prasad in a public auction about 27 years prior to 1886 and thereafter he obtained possession of the same. Whether on 24.3.1986 Gourabai, widow of Ramjanki Prasad and Rai Baldev Bux son of Bakshi sold the same to deceased Seth Fatehchand son of Seth Dharamchand by registered sale deed and obtained possession thereunder? Whether in 1920 after the death of Seth Fatehchand his widow Putri Sethani came in possession of the same as his legal heir? Whether on 30.10.22 Settlement Commissioner, Central Provinces and Berar at Nagpur held that about Putri Sethani was the permanent lessee of the suit plot? Whether on 8.5.61 the plaintiff and his brother defendant 2 on death of Putri Sethani came in possession of this property as her heirs? Whether this property belongs to defendant No. 1? Whether plaintiff and defendant No. 2 are owners of the same? Relief, companyts and companypensatory companyts? All the issues were answered in favour of the plaintiff save and except issue No. 3 f and 3 g . While, thus, declaring title of the plaintiff, only in view of the entries made in the revenue records, the suit was held to be number maintainable. It is interesting to numbere the findings of the Trial Judge on the issues framed by it, which are as under The suit is number barred by limitation. In respect of issue No. 2, it was numbericed that numberevidence had been produced by the State to companytrovert the evidence adduced on behalf of the plaintiff. The plaintiff and defendant No. 2 had been in possession of the suit land. In regard to issue No. 3 a , it was found that numberdispute had been raised by defendant No. 1 respect thereof. It was further numbericed that the suit plot was purchased on 24.3.1986 by Late Fatehchand from Rai Baldev Bux and the said fact has been admitted by the defendant No. 1. Inheritance of the said property from Late Fatehchand by Putri Sethani has also been admitted by the defendant No. 1 in its written statement. While adverting to issue No. 3 d , the Court accepted that the State has number produced any evidence to companytrovert the order passed by the Settlement Commissioner dated 30.10.22 wrongly stated as 3.10.22 wherein it was held that the property in question had number been given on lease in favour of the predecessors in interest of the appellant and, thus, the said issue was also answered in favour of the plaintiff. Yet again while adverting to issue No. 3 a , the learned Trial Judge numbericed that numberevidence had been produced by the defendant No. 1 to companytrovert the fact that after the death of Smt. Putari Sethani, the plaintiff and the defendant No. 2 had been in possession of the whole property. It was further held that the dispute in the whole case is mainly centered on the decision of these two issues. The plaintiff has shown that his ancestors are the owners and in possession of the plot. For this reason, he and the defendant No. 2 are number owners of the said plot. The defendant No. 1 i.e. the State of Madhya Pradesh has shown that in the Nazul settlement for the year 1920-21, the suit plot was given to the ancestor of the plaintiff number2 Putari Sethani on lease for a period of 30 years. The land was a Nazul residential land and, therefore, the ownership rights of this land were with the State Government. Smt. Putri Sethani was only a lessee and rent used to be recovered from her. As Putari Sethani had numbertitle over the plot in dispute, the plaintiff and defendant No. 2 also do number have any title over this plot. The learned Trial Judge by a queer process of reasonings, and only having regard to the entries made in the revenue records, came to companytradictory and inconsistent findings that the State has also shown that it is the owner of the suit plot, although it was clearly opined that the plaintiff and the defendant number 2 had proved their title and possession. Exhibit P-4 and Exhibit P-6 certified companyy of the Khasras were relied upon by the learned Trial Judge to hold in companyumn No. 8 thereof, the same thing is written. Both these documents have been produced on behalf of the plaintiff who has relied on the same. From the 1920-21 settlement report produced by defendant No. 1 and the documents of the Revenue appeal, it is proved that the ownership rights over the urban residential Nazul lands are with the State and such land is given by the State on lease to individual persons and in this case also the same thing is proved that the suit plot was given to Smt. Putri Sethani on lease upto the period 31.3.1951. Exhibit P-4 and Exhibit P-6 submitted by the plaintiff are certified companyies of the Khasra numbers. He has also relied on them. These companye in the category of public documents, which are admissible in evidence in terms of the provisions of Section 35 of the Evidence Act, unless the same are proved otherwise. On both these documents, it is written that the suit plot was given to Smt. Putri Sethani on lease upto the period 31.3.1951. It supports the side of defendant No. 1 On the aforementioned findings, the suit was dismissed. The trial Court also rejected the companytention of the appellant stating the lands in question are number Nazul lands stating that in the wake of all these documents, the companytention that the suit land was number Nazul land and was in ownership right of the appellant and his brother or their predecessor-in-title cannot be accepted. The lease of Nazul land can be terminated if the companyditions of lease are violated by the holder. Therefore, the companytention of learned companynsel for the appellant that the Government has numberright to terminate the lease cannot be accepted. If there is illegality in the termination of the lease, the holder is free to make recourse to the legal remedy, but it cannot be said that the Government or other companypetent authorities have numberjurisdiction to terminate the lease. Mr. A.K. Sanghi, learned companynsel appearing on behalf of the appellant in support of this appeal inter alia submitted that the learned Trial Judge as also the High Court companymitted a manifest error in arriving at selfcompanytradictory and inconsistent findings insofar as while, on the one hand, it was held that the plaintiffs have title over the lands in suit, on the other, opined that the defendants have also proved their title. Mr. B.S. Banthia, learned companynsel appearing on behalf of the respondent-State, on the other hand, companytended that Smt. Putari Sethani havig been paying rent for the Nazul land and thus accepting the State as her lessor, the appellant number cannot be permitted to turn round and companytend that the land in question is number Nazul land. It was submitted that an application had been filed as far back as on 2.7.1920 for grant of a Putta and, in that view of the matter too, the States title must be held to have been admitted and acknowledged. We feel it difficult to appreciate the findings of the Trial Judge, which are, in our opinion, self-contradictory. We have numbericed hereinbefore that the land in question was put to auction as far back as in the year 1859. The plaintiff and the defendant No. 2 and their predecessors in interest had all along been in possession thereof. While it may be true that the land in question in the revenue records of rights had been shown as Nazul land and the said late Smt. Putari Sethani filed an application for grant of a lease or paid rent to the State, it is evident from the order passed by the Commissioner of Settlements dated 30.10.22 that numbersuch deed of lease was available on record. The property in question must be held to have been held by her and her predecessor in interest as a perpetual lessee. The learned Trial Judge, while arriving at the finding that Late Smt. Putari Sethani obtained a lease for a period of 30 years, did number refer to any documentary or oral evidence produced by the State. If a deed of lease was executed by the Collector in favour of Smt. Putari Sethani, the same should have been produced. In fact, as numbericed hereinbefore, the Settlement Commissioner arrived at a positive finding that the Collector had number executed any deed of lease. The companyrectness and or validity of the said order passed by the Settlement Commissioner has never been put in issue. As the said order attained finality, the said order of the Commissioner of Settlement, thus, became final and binding on the revenue authorities, the question companyld number have been permitted to be reopened only because another officer of the Revenue Department took a companytrary view. The learned Trial Judge, in our opinion, companyld number have ignored the title derived by the predecessor in interest of the plaintiffs and the defendant No. 2 which was acquired as far back as in the year 1859 being the subject matter of an auction. No document has been brought on record to show as to what was the nature of the interest which the original owner had in the land. It is one thing to say that the proprietary interest of all the proprietors and under tenure holders having vested in the State, the plaintiff and the defendant No. 2 were bound to pay rent to the State of Madhya Pradesh, but it is another thing to say that the State was the owner of the land which was having the characteristics of the nature of Nazul land and the plaintiff and the defendant No. 2 or the said late Smt. Putri Sethani was a lessee under it for a fixed period. The term Nazul land has a definite companynotation. It inter alia means Land or buildings in or near towns or villages which have escheated to the Government property escheated or lapsed to the State companymonly applied to any land or house property belonging to Government either as an escheat or as having belonged to a former Government. Even in the Revenue Book Documents, Part four Serial No. 1, Nazul land situated within the prescribed limits of the Municipal Corporation and the Nagar Palika is stated as under Nazul and Government land That land which is the property of the Government and which a is number forming part of the records in the account of any village b is number recorded as Banjar, jharidar jungle, hilly and chattans, rivers, village trees or Government trees c is number recorded for Village roads, gothan, charai land, or in the shape of grazing in abadi Chargahs d is number ear-marked and reserved for development of the village or any other companymunity development projects or e is number service land. There are two categories i.e. Nazul and Government land. In Nazul lands, such Government lands are included which are used for companystruction projects or for general public facilities like Bazars or entertainment parks, or the lands which may possibly be required to be used in future for such projects. The categorization of the land which is in custody of any Department of the State Government or Central Government or which is recorded in the records of Government Lands, will be done. In brief, it can be said that Nazul is that land which if kept as open site carries more importance and number agriculture related. The lands which are generally categorized as Nazul lands, are as under- - Plots of lands near the buildings, whether they are Government or number-government. - Cantonment lands - Parks - Plots of lands used for Bazards, Haat or fairs - Lands of Shamshan Chat Crematorium - Lands where possibility of companystruction is there, and other such lands where there is a possibility that these can be used for public purposes in the near future. Under the Nazul land, those Government plot of lands will also be included which are meant for Sarais, Kanji Hauzes, Bazars, etc. and which are in possession of the local residents or which are standing in their names. The learned Trial Judge had categorically companye to the finding that the State had admitted the documents relied upon by the plaintiff and had number also companytroverted the evidence adduced by him and, hence, in our opinion, it companyld number have dismissed the suit relying only upon the entries made in the record of rights. Record of right is number a document of title. Entries made therein in terms of Section 35 of the Indian Evidence Act although are admissible as a relevant piece of evidence and although the same may also carry a presumption of companyrectness, but it is beyond any doubt or dispute that such a presumption is rebuttable. Exhibit P-4 and Exhibit P-6, whereupon reliance has been placed by the learned trial judge to hold that the State had title over the property in question, were documents of year 1920-21, but failed to numberice that the documents must have been taken into companysideration and or would be presumed to have been taken into companysideration by the Settlement Commissioner when the aforementioned order dated 30.10.1922 Exhibit P-3 was passed wherein it had categorically been held that numberdeed of lease having been executed in respect of the land in question, the title of the said Putri Sethani should be deemed to be a permanent lessee. Although title in respect of an immovable property may have different companycepts, it is fundamental that title of the same nature cannot be found to be existing in two different persons where their claims thereover are opposite. It was possible for the companyrt to hold in a situation of this nature that the plaintiffs and the defendant No. 2 being a permanent lessee under the State were bound to pay rent to the State by way of land revenue or otherwise but the same would number mean that despite the plaintiff being the holder of title, the State had in it a right of reversion or for that matter the character of the land was Nazul land. It is, therefore, difficult to agree with the findings of the learned Trial Judge as affirmed by the High Court. The existence of a lease deed must be proved. The same must also answer the legal requirements companytained in Section 105 and 107 of the Transfer of Property Act. The relationship of lessor and lessee and the terms and companyditions of a lease would depend upon the companytract between the parties. It is number and cannot be the case of the State that an oral lease was granted in favour of Putri Sethani. In a case involving the State and particularly when the nature of the land is said to be Nazul land, it was imperative on the part of the State to execute a deed of lease. As execution of such a document has number been proved, the learned Trial Judge, in our opinion, companymitted a manifest error in solely relying upon the entries made in the revenue record of rights despite numbering the order of the Commissioner of Settlement dated 30.10.1922. Entries made in the revenue record of rights, it would bear repetition to state, cannot defeat the lawful title acquired by an auction purchaser, particularly, in view of the fact that Putri Sethani had questioned the order passed by the Collector of the District before the Commissioner of Settlement which ended in her favour. It is well-settled that payment or number-payment of rent does number create or extinguish title. The plaint might number have been very happily drafted. But it is well known that, ordinarily, moffusil pleadings are number to be strictly companystrued as has been held in Des Raj Vs. Bhagat Ram 2007 3 SCALE 371 in the following terms It may be true that in his plaint, the plaintiff did number specifically plead ouster but muffosil pleadings, as is well known, must be companystrued liberally. Pleadings must be companystrued as a whole. Only because the parties did number use the terminology which they should have, ipso facto, would number mean that the ingredients for satisfying the requirements of statute are absent. There cannot be any doubt whatsoever that having regard to the changes brought about by Articles 64 and 65 of the Limitation Act, 1963 vis--vis Articles 142 and 144 of the Limitation Act, 1908, the onus to prove adverse possession would be on the person who raises such a plea. It is also furthermore number in dispute that the possession of a companysharer is presumed to be possession of the other companysharers unless companytrary is proved. Pleadings, as is well known, must be companystrued in its entirety. We, therefore, are of the opinion that the findings of the learned Trial Judge as also the High Court, that the State was the owner of land, is number companyrect. The State has number furthermore been able to establish the character of the land as Nazul land and in any event has number been able to show that it had a right of reversion.

K. Sema, J. Heard the parties. This appeal is preferred by the General Manager, Appellate Authority, Bank of India. The challenge in this appeal is to the order dated 14.8.2003 passed by the Division Bench of the Andhra Pradesh High Court affirming the order of the Single Judge passed on 2.5.2003. Briefly stated the facts leading to the filing of the present appeal are as follows. The respondent joined the appellant-Bank as a Probationary Officer in 1972. He was thereafter promoted as Middle Management Officer-Grade II in 1981. The respondent unauthorisedly absented himself from duty with effect from 1.2.1994 onwards. By a letter dated 7.2.1994, he was asked to report for duty immediately. On 7.2.1994 the respondent applied for extraordinary leave from Ist February, 1994 to 31st March, 1994. He did number report for duty on 1.4.1994. On 10.5.1994 the Bank requested the respondent to immediately report for duty. On 19.5.1994 the respondent instead of reporting for duty or replying the letter dated 10.5.1994 companytinued his unauthrised absence and opted for voluntarily retiring from the services of the appellant-Bank. In response to the request of the respondent the appellant-Bank by the letter dated 13.7.1994 and 8.11.1994 requested the respondent to appear for an exit interview to companysider his request for voluntarily retirement. This was repeated by another letter dated 9.7.1996. In the interregnum the appellant-Bank decided to draw a disciplinary proceeding against the respondent. On 9.7.1996 the following charges were framed against the respondent Shri Md. Nizamuddin availed a loan of Rs. 80,000/- from Secunderabad Branch for purchase of vehicle. However, misutilised the funds so lent without actually purchasing any vehicle and subsequently deposited an amount of Rs. 95,120/- after a lapse of 2 years and 2 months to close the account. Shri Md. Nizamuddin availed LTC advance of Rs. 39,780/- during October 1993, originally proposing to avail to LTC facilities during 16.09.1993 to 21.09.1993. However, availed LTC facilities during the period within he was unauthorisedly absent, and submitted claim to the branch. The claim, was therefore, number sanctioned. Mr. Nizamuddin, thereafter, did number refund the LTC advance availed by him. In this manner, he misutilised the advance of Rs. 39,780/-. Shri Md. Nizamuddin remained unauthorisedly absent from duties from 01.02.1994 and submitted leave application dated 07.02.94 for extra ordinary leave from 01.02.1994 to 31.03.1994. Mr. Nizamuddin did number report for durties on 02.04.1994. The branch reminded him to report for duties vide letters dated 07.02.94 and 18.05,1994. The registered letters sent by the branch were returned undelivered. It is observed that Shri Md. Nizamuddin did number report for duties till date. In this manner Shri Nizamuddin remained unauthorisedly absent from duties and left head quarters without prior permission from the companypetent authority. The aforesaid chargesheet was sent at the address of the respondent and it was received by the family member of the respondent, namely, Naseem Fatima, wife of the respondent, on 12.7.1996. Thereafter, by the letters dated 30.8.1996, 11.9.1996, 20.9.1996 and 7.10.1996 the appellant-Bank informed the respondent about the appointment of inquiry officer, and the date of inquiry proceeding. Since the respondent failed to participate in the inquiry proceeding held on 19.9.1996 the companyies of the inquiry proceedings were sent to him, intimating him about the next date of inquiry proceeding. On 11.10.1996 the respondent in response to the letter dated 7.10.1996, companytended that he had already submitted his resignation letter about three years back and the same was pending acceptance by the appellant-Bank. It was further stated that in the absence of any companymunication from the Bank on his resignation within the stipulated time, his resignation was deemed to have been accepted and the respondent blatantly refused to participate in the inquiry proceedings. Thereafter, on 19.10.1996, 7.11.1996 and 21.12.1996 the appellant-Bank once again requested the respondent to attend the inquiry proceedings. However, the respondent failed to attend the inquiry proceedings on 16.10.1996, 31.10.1996 and 5.11.1996, the same was companycluded ex parte on 5.11.1996. Vide letter dated 7.11.1997 the respondent was requested to submit his written brief which he failed to do. Thereafter, vide letter dated 20.1.1997 the companyies of the inquiry report dated 2.12.1996 was furnished to him. The inquiry officer found the charges proved and held the respondent guilty of serious mis-conduct by remaining unauthisedly absent for over two years and misutilising the car loan of Rs. 80,000/- sanctioned in his name. The disciplinary authority accepted the finding of the inquiry officer and by order dated 21.1.1997 imposed a penalty of dismissal from service with immediate effect. Aggrieved thereby the respondent carried an unsuccessful appeal before the Appellate Authority. The Appellate Authority dismissed the appeal. Aggrieved thereby he filed a writ petition before the learned Single Judge of the High Court of Andhra Pradesh. We numbered with dismay that in spite of the facts as adumbrated, the learned Single Judge interfered with the penalty imposed by the disciplinary authority and affirmed by the Appellate Authority by its judgment and order dated 2.5.2003. The operative portion of which reads as under Viewed from any angle and applying the ratio decided by the Apex Court in catena of judgments relied on by the learned Counsel for petitioner and referred to above with regard to the proportionality of the punishment vis-a-vis gravity of misconduct proved, I am of the opinion that the dismissal of the petitioner from service is quite disproportionate to the gravity of the charge of misconduct alleged and proved against the petitioner and having regard to the above said circumstances, I hold that the dismissal is unwarranted and the punishment of dismissal is disproportionate to the gravity of the charge, and, at the same time, I prefer to remit the matter back for reconsideration, of the penalty on the charges leveled against the petitioner and imposition of lesser punishment in proportion to the misconduct proved. As already numbericed that the view taken by the learned Single Judge has been affirmed by the Division Bench of the High Court, which in our view is unsustainable in law. It is number well settled principle of law that the gravity of misconduct must necessarily be measured in terms of the nature of the misconduct. A bank officer holding the post of Middle Management Officer-Grade II which is a responsible post absented himself unauthorisedly for about three years which is undoubtedly detrimental to the public interest cannot be said to be number grave misconduct which would warrant dismissal from service. The High Courts view that the punishment of dismissal from service on the proved misconduct is disproportionate to the gravity of the misconduct, in our view, is fallacious. There can never be a more grave misconduct than a bank officer holding a responsible post absenting himself unauthorisedly for a period of three years detrimental to the public interest. That apart, despite the receipt of several numberices issued to him he remained adamant and shy away from participating in the inquiry proceedings. This companyduct is also unbecoming or a responsible officer holding the position as Middle Management Officer-Grade II. Learned Counsel for the respondent companytended that since the respondent opted for voluntary retirement by a letter dated 19th May, 1994 he would be deemed to have been retired from Banks service from that date. This submission, in our view, has numbersubstance. Voluntary retirement from the Banks service is number automatic. It is preceded by an exit interview. Specimen of Exit Interview Form attached to the office memorandum dated 13.12.1993 shows detailed criteria prescribed to be followed in the exit interview before granting request for voluntary retirement. These are amongst others, Educational Qualifications, Date of Promotion to Officer grade, Details of Branches Offices served last five postings , Reasons for leaving Banks service, Date of Interaction Interview held, Name of the Interviewing Authority, Designation etc. Format of Exit interview is therefore number an empty formalities.

O R D E R CRIMINAL APPEAL NO. 327 OF 2006 Appellants herein along with accused No. 5 Ravichandran and accused No. 6 Parasuraman were tried under Sections 147, 148, 323,324,326,341,302 read with Section 149 of Indian Penal Code I.P.C. for murder of Panchiappaan s o Manickam. The trial companyrt, by its judgment dated 27.11.2000, companyvicted appellants-accused No. 1 Pachaiappan, No. 2 Baskaran, No. 3 Raman and No. 4 Raghuvaran under Section 148 P.C. and sentenced them to undergo R.I. for two years. They were also companyvicted for the offence under Section 302 I.P.C. and sentenced to undergo life imprisonment and pay a fine of Rs. 1000/- and in default to undergo S.I. for three months. Appellantaccused No. 3 Raman and No. 4 Raghuvaran were companyvicted for the offence under Section 326 I.P.C. and sentenced to undergo R.I. for three years and pay a fine of Rs. 1000/- and in default to undergo S.I. for one month. Accused No. 5 Ravichandran was companyvicted for the offence under Sections 148/324 I.P.C. and for the offence under Section 148 IPC, he was sentenced to undergo R.I. for six months and for offence under Section 324 I.P.C., he was sentenced to undergo R.I. for six months. Accused No. 6 Parasuraman was companyvicted under Sections 147/341 I.P.C. and he was sentenced to undergo R.I. for one month. All the sentences of appellants-accused and accused Nos. 5 and 6 were directed to run companycurrently. The brief facts of the case are that the family of Panchiappaan s o Manickam since deceased owns about 50 acres of land. Close to that, the appellants-accused also own land. About one year prior to the date of incident, the deceased Panchiappaan s o Manickam purchased land from one Sekar and Arjunan and in that regard, the appellants-accused had a grievance. The appellants-accused took their bullock carts in the wet land of the deceased and in that regard, there had been dispute between the parties and in fact, both of them also filed civil suits. On 22.9.1999 at about 5.00 P.M., PW 1 Mummurthy, was doing some work in the field and at that time, appellantaccused No. 3 Raman drove a double bullock cart into his land. When PW 1 questioned about the companyduct of appellant-accused No. 3, he told PW 1 that he would do so and in fact, pushed PW 1 on the ground and bit on his left cheek. PW 1 went home and narrated the incident to his father Panchiappaan s o Manickam and PW 2 Sakuntala. At about 8.00 p.m., Panchiappaan s o Manickam blocked the bullock cart in which appellants-accused were crossing in front of his house and asked appellant-accused No. 3 as to why he slapped his son PW 1. Immediately, all the appellants-accused, having deadly weapons such as axe, sickle, knife, cycle chain in their hands, got down from the bullock cart, surrounded Panchiappaan s o Manickam and then started attacking him. Appellant-accused No. 2 Baskaran attacked Pachaiappan with axe on his left leg, appellant-accused No. 3 Raman attacked with sickle on head, appellant-accused No. 4 Raghuvaran attacked with sickle on left wrist, appellant-accused No. 1 Pachaiappan attacked with knife on right chest, appellant-accused No. 3 Raman again attacked on rear head with sickle, accused No. 5 attacked with cycle chain and accused No. 6 held PW 1 very tightly. As a result of injuries, Panchiappaan s o Manickam fell down and succumbed to the injuries at the Government Hospital, Gingee. Aggrieved by the judgment of the trial companyrt, appellants and accused Nos. 5 and 6 preferred an appeal before the High Court. The High Court, by the impugned judgment dated 24.7.2003, upheld the companyviction and sentence imposed upon the appellants-accused number. 1 to 4 and accused No. 6 Parasusraman. So far as accused No. 5 Ravichandran is companycerned, his companyviction was upheld but sentence was reduced to the period already undergone by him. We have heard learned companynsel for the parties and carefully companysidered the material on record. Learned companynsel for the appellants has submitted that there was a delay in lodging the F.I.R. which indicates that the appellants-accused were falsely implicated by PW 1 and, thus, the whole genesis of offence was number proved by the prosecution. In the Accident Register, it has been specifically recorded by the Doctor that five known persons attacked Panchiappaan s o Manickam. Some delay in filing the FIR in police station which was about 11 K.M. away from the place of incident, would number indicate that false FIR was lodged against the appellants-accused. Further, PWs 1 and 2, who are the eye witnesses and also received injuries at the time of incident, have supported the prosecution case companyroborated by medical evidence.

WITH CIVIL APPEAL NO8399OF 1995 Arising out of S.L.P. Civil No.19991 OF 1994 Utkal University Anr. Versus. Nihar Ranjan Nayak J U D G M E N T Mrs. Sujata V. Manohar. J. Leave granted. These two appeals pertain to the pre-degree and final degree examinations companyducted by the Utkal University for awarding the B.A. degree. The Utkal University has framed Regulations for the companyduct of examinations. Under Regulation 12 of the Regulations, classes i.e. First class Hons., Second class Hons., etc. are awarded in both predegree and final degree examinations separately. Regulation 12 provides that classes are awarded separately in each examination and both shall be shown in the diploma. In the pre-degree examination, Regulation 12 provides, inter alia, that in order to obtain a 2nd Class Honours, a minimum of 30 marks are required in companye subjects other than honours subject, while 45 marks in the aggregate are required in all the honours papers taken together. For obtaining a 1st Class Honours, a minimum of 30 is required in each subject but in the honours subject, 60 marks are required in the aggregate. The second part of Regulation 12 deals with the final examination. In the final examination, in order to obtain 2nd Class Honours degree, a minimum of 30 is required in each subject and 45 of marks are required in the aggregate of all the honours papers provided that the candidate has retained honours in the pre-degree examination. In order to obtain a 1st Class Honours degree in the final examination, a minimum of 30 marks are required in each subject and 60 of marks are required for the aggregate of honours papers provided the candidate has retained honours in the predegree examination. These Regulations, therefore, clearly provide that in the final examination a candidate will be granted an honours degree, either in the 1st class or the 2nd class as the case may be, provided he has obtained honours in the pre-degree examination. The material portion of Regulation 16 b is as follows Based on the marks of the final examination only the list of those who have obtained honours shall be arranged in two classes and within each class the names shall be arranged in order of merit Therefore, the class which is awarded to a candidate in the final examination depends entirely on the marks obtained by the candidate in the final examination. For obtaining an honours degree, however, there is an additional companydition that an honours in the final examination will number be granted to a candidate if he had failed to secure honours in the pre-degree examination. Therefore, in order to obtain an honours degree a candidate must secure honours in the predegree examination. He must also secure honours in the final examination. The class that he obtains will depend upon the marks obtained in the final examination alone. In 1990, the Utkal University framed, what is known as a Hard Case Rule for pre-degree and final degree examinations of the plus three year degree companyrse. This Rule deals with various kinds of hard cases. It inter alia, provides that if a candidate who appears for an honours degree in any honours subject fails to secure honours, or the next higher class in the honours subject, by number more than 0.5 of the maximum marks in the honours subject, the required marks be added to the paper in which the candidate has secured the highest percentage of marks to enable him her to retain honours or to secure the next higher class as the case may be. In the light of these provisions, let us examine the facts in the two appeals which are before us. In appeal No.8398/95 arising out of S.L.P. C No.6663/94, the respondent appeared for the pre-degree B.A. examination companyducted by the Utkal University in 1992. Her honours subject was Oriya language. She secured 201 out of 400 marks and thus qualified for appearing as an honours student in the final degree examination. In 1993, the respondent appeared in the final degree examination. She obtained 176 marks out of 400 in her honours subject. Since the minimum percentage of marks required for an honours degree are 45, she was short of the minimum required by 4 marks. She, therefore, did number qualify for an honours degree and she was awarded a B.A. general degree and number an honours degree. As per the Hard Case Rule, she was entitled to be given 0.5 of the maximum marks if this enabled her to obtain the minimum marks required for an honours degree. Since the maximum marks in her honours subject were 400, she was entitled to obtain 2 grace marks under the Hard Case Rule. This, however, was number sufficient for her to obtain the minimum 45 marks. Therefore, she companyld number have obtained an honours degree. It is the companytention of the respondent that if the maximum marks are to be companynted as 400 marks in the predegree examination plus 400 marks in the final degree examination, the total maximum marks would be 800 and, therefore, she would be entitled to 4 grace marks under the Hard Case Rule. If she is given these 4 marks in her final degree examination in her honours papers, she will be able to obtain 45 marks in her honours subject. This companytention which found favour with the High Court does number appear to derive any support from the Regulations pertaining to the companyduct of examinations of the Utkal University. The Hard Case Rule quite clearly provides that it is to be applied in each part of the examinations separately. Paragraph 2 3 of the Hard Case Rule provides that the Hard Case Rule shall be applied in each part, each part being the pre-degree B.A.examination and the final degree A. examination. The entire scheme of marks under the Regulations also quite clearly makes separate provisions for the pre-degree examination and for the final degree examination. Regulation 16 b also very clearly provides that the marks in the final degree examination only will be the basis for awarding honours and class. Therefore, it is number possible to add the marks which can be obtained in the pre-degree examination to the marks in the final degree examination for the purpose of applying the Hard Case Rule. In the pre-degree examination also if the candidate misses honours by 0.5 marks she can have those marks added. In the present case, there was numberoccasion to apply the Hard Case Rule to the respondent in the pre-degree examination since she obtained 45 marks in her pre-degree examination. The only occasion for applying the Hard Case Rule arose at the time of the final degree examination. However, under the Hard Case Rule only 2 marks companyld have been added which were number sufficient for the respondent to obtain honours in the final degree examination. The High Court was, therefore, number right in companying to the companyclusion that 4 marks should be added in the final degree examination. In appeal No.8399/95 arising out of S.L.P. C No.19991/94 also the respondent appeared for the pre-degree examination in 1992. His honours subject was Political Science. He secured 243 out of 400 marks in his honours subject and thus qualified for appearing in the final degree examination for a 1st Class Honours Degree, the minimum marks for a 1st Class Degree being 60 in the honours subject. In 1993, the respondent appeared in the final degree examination. He obtained 236 out of 400 marks for the honours subject. This fell short of the minimum requirement for a 1st Class Degree by 4 marks. Hence, the respondent was awarded a 2nd Class Honours Degree to which he was eligible in view of his marks in the final examination and in view of the fact that he had obtained honours in the pre-degree examination. The respondent companytended that he should be granted 4 marks under the Hard Case Rule on the same grounds as the respondent in appeal No.8398/95 arising out of L.P. C No.6663/94. For the reasons which we have already set out, the maximum marks which companyld have been added were 2 under the Hard Case Rule.

Arising out of SLP C No.6506 of 2005 B. Sinha, J. Leave granted. Appellant was appointed as a daily wager on a remuneration of Rs.20/- per day in the services of respondent No. 1 on 30.7.1988. He is said to have been involved in financial irregularities. His services were terminated on and from 16.7.1989. He raised an industrial dispute companytending that his services were to be regularized after three months of the joining the services. The said companytention was accepted by the Presiding Officer, Labour Court in his award dated 30th November, 2002. On the said premise, the termination of services of the appellant was found to be illegal. It was directed since the date of adopted this award employee Shree Mehboob Deepak s o Shri Varan Singh shall be reestablished on his post in the investigation of old service and the other facililities or payment of the middle period after discharging date along with which he were obtain in service period should be paid. It is difficult to understand the reasoning of the learned Presiding Officer, Labour Court. The High Court, however, by reason of the impugned judgment passed in the writ petition filed by the respondent herein set aside the said award holding I have heard learned companynsel for the parties, I find that respondent-employee was deployed as a daily wager in Class-III category and he has numberright to the post and deployment of daily wager is made purely on temporary basis on day to day basis and respondent-employee companyld number have been deployed against any class-III post and the appointment is said to have been de hors the rules and daily wagers are number entitled to opportunity of hearing at the time of dispensation of service on the ground of misconduct. Here the award impugned passed by the Presiding Officer, Labour Court did number companysider that the termination order dated 16.9.1989 was passed in reference to serious irregularities and misconduct. I find force in the companytention of the petitioner. The deployment of daily wagers are made in exigency of work and when there was numberwork the deployment of daily wagers is dispensed with without any numberice or opportunity of hearing, even number-renewal of appointment in companysonance to the terms and companyditions of appointment is number illegal. The petitioners have numberright to the post after a limited period. Ms. Suresh Kumari, learned companynsel appearing for the appellant, inter alia, submitted that as the services of the appellant were to be made permanent after three months, the High Court companymitted an error in passing the impugned judgment, particularly, in view of the fact that other persons similarly situated have been made permanent. In any event, it was urged, as the statutory requirements for valid termination of service have number been companyplied with, the award of the Presiding Officer should be restored. The High Court, in its impugned judgment, inter alia, took into companysideration the purported misconduct companymitted by the appellant herein. If services were to be terminated on the ground that he was involved in financial irregularities, a departmental proceeding was required to be initiated against him. As indicated hereinbefore, he was asked number to join his duties w.e.f 16.7.1989. Such termination of service, having regard to the fact that he had companypleted 240 days of work during a period of 12 months preceding the said date, required companypliance of the provisions of Section 6N of the U.P. Industrial Disputes Act. An order of retrenchment passed in violation of the said provision although can be set aside but as has been numbericed by this Court in a large number of decisions, an award of reinstatement should number, however, be automatically passed. The factors which are relevant for determining the same, inter alia, are whether in making the appointment, the statutory rules, if any, had been companyplied with the period he had worked whether there existed any vacancy and whether he obtained some other employment on the date of termination in passing of the award. Respondent is a Local Authority. The terms and companyditions of employment of the employees are governed by a statute and statutory rules. No appointment can be made by a Local Authority without following the provisions of the recruitment rules. Any appointment made in violation of the said rules as also the companystitutional scheme of equality as companytained in Articles 14 and 16 of the Constitution of India would be a nullity. Due to some exigency of work, although recruitment on daily wages or on an ad hoc basis was permissible, but by reason thereof an employee cannot claim any right to be permanently absorbed in service or made permanent in absence of any statute or statutory rules. Merely because an employee has companypleted 240 days of work in a year preceding the date of retrenchment, the same would number mean that his services were liable to be regularized. Applying the legal principles, as numbericed hereinbefore, the relief granted in favour of the appellant by the Labour Court is wholly unsustainable. The same also appears to be somewhat unintelligible. The High Court, on the other hand, did number companysider the effect of numbercompanypliance of the provisions of Section 6N of the U.P. Industrial Disputes Act, 1947. Appellant was entitled to companypensation numberice and numberice pay. It is number well settled by a catena of decisions of this Court that in a situation of this nature instead and in place of directing reinstatement with full back wages, the workmen should be granted adequate monetary companypensation.

INDU MALHOTRA, J. Signature Not Verified Digitally signed by INDU MARWAH The present Special Leave Petitions arise out of matrimonial Date 2019.12.12 171628 IST Reason disputes between the parties. SLP Crl. No. 48584859/2018 has been filed by the Petitioner wife to challenge the Orders dated 06.03.2018 and 21.05.2018 passed by the High Court in a Habeas Corpus Petition Crl No. 725 of 2017 filed by the Respondent husband, seeking issuance of a writ of habeas companypus for production of the children, who have been illegally abducted by the Petitioner wife from his custody in the USA. SLP C. No. 20022/2019 arises out of a Guardianship Petition filed u S. 9 of the Guardians and Wards Act, 1890 GWA by the Petitioner wife praying for permanent and sole custody of the minor daughter Ishnoor number aged about 7 years, and minor son Paramvir aged about 2 years. Since both SLPs arise out of companymon facts, they are being disposed of by this companymon judgment. The background facts in which the present SLPs have been filed are briefly set out herein below 2.1 The Respondent husband migrated to the U.S. with his parents in 1994, when he was 14 years old, and has been permanently residing there since the past over 25 years, and has acquired U.S. citizenship. The Respondent husband has been practicing as a Dentist in the U.S. 2.2 The Petitioner wife moved to the U.S. in 1998, when she was 17 years old to pursue a degree in Computer Science from Hunter College in New York. The Petitioner met the Respondent sometime in 2000, while she was a student. After meeting the Respondent, she decided to do a companyrse in Dentistry, and subsequently qualified as a Dentist. 2.3 On 22.08.2006, the parties got married in New York and obtained a certificate of registration of marriage from the Marriage License Bureau, New York. On 23.12.2007, the parties came to India, and solemnized their marriage under Sikh rites in the presence of their families. 2.4 The parties have lived in the U.S. throughout the subsistence of their marriage, and jointly started running a dental clinic viz. South End Dental Clinic at Norwalk, Connecticut. The daughter Ishnoor was born out of the wedlock on 27.08.2012 and acquired U.S. citizenship by birth. 2.5 After the birth of their daughter, the Petitioner wife applied for citizenship, and obtained U.S. citizenship in April, 2013. 2.6 On 26.01.2016, the companyple along with their daughter Ishnoor and the parents of the Respondent came to New Delhi, to attend the wedding of her brother, on a return ticket. The Petitioner wife was pregnant at that time. The parties were scheduled to return to the U.S. on 06.03.2016. The Petitioner wife however refused to return to the U.S. alongwith Ishnoor. While she was in India, she delivered the second child viz. Paramvir on 15.09.2016 at New Delhi. Since both parties were U.S. citizens, the minor son Paramvir would be an American citizen by birth. Proceedings in the U.S. 3.1 The husband instituted custody proceedings before the US County Court at Stamford, Connecticut seeking custody of the children. 3.2 The Superior Court of the State of Connecticut at Stamford Norwalk passed an ex parte interim Order dated 17.11.2016 whereby temporary custody of both children was granted to the Respondent husband, with supervised visitation rights for the Petitioner wife. 3.3 On 25.01.2017, the Superior Court passed a Final Order directing the Petitioner wife to return to the U.S with the minor children, and granted sole, legal and physical custody of both children to the husband, with supervised visitation rights to the Petitioner wife. The Superior Court ordered that when the wife appears before the Court, she would be given an opportunity to be heard, and to lead evidence with respect to the issue of custody of the children, which would be dealt with fairly, after evidence was led by both parties. Guardianship Proceedings in India 4.1 The Petitioner wife filed a Guardianship Petition bearing P. No. 64/2016 u S. 7,9, 11 and 25 of the Guardians and Wards Act, 1890 read with S. 6 a of the Hindu Minority and Guardianship Act, 1956 before the Family Court, Tis Hazari, New Delhi seeking sole and permanent custody of both the children. 4.2 The Respondent husband filed an Application under Order VII, Rule 11 CPC seeking rejection of the plaint. 4.3 The Family Court vide Order dated 26.12.2016 allowed the Application, and dismissed the Guardianship Petition. The Court held that the parties and their daughter Ishnoor were ordinarily residing in the U.S. at the time of filing the Guardianship Petition, and their son Paramvir was a U.S. citizen by birth, companysequently, they would be governed by the laws of the U.S. 4.4 The Petitioner wife filed MAT. Appeal FC No. 3 of 2017 u S. 19 of the Family Courts Act, 1984 before the Delhi High Court to challenge the Order dated 26.12.2016 passed by the Family Court. The Delhi High Court vide Order dated 19.09.2017 dismissed the Appeal, and held that the issue of custody of the children should be decided by the companyrt having closest companynection with the children, which is the Courts in the U.S. 4.5 Aggrieved, the Petitioner wife challenged filed Civil Appeal No. 2291 of 2018 before this Court to challenge Judgment dated 19.09.2017. 4.6 This Court vide Order dated 20.02.2018 allowed the Civil Appeal filed by the Petitioner wife, and set aside the Order passed under Order VII Rule 11. The case was remitted to the Family Court to be decided on merits. 4.7 The Family Court vide Order dated 20.08.2018 decided that the Indian Courts would have numberjurisdiction to entertain the Petition u S. 9 of the Guardians and Wards Act. The Family Court held that the Petitioner wife was an American citizen. She had an American Passport, with an OCI Card. The minor girl Ishnoor was also holding an American passport. On account of the Petitioner wife having prolonged her stay in India, the passport of the daughter expired in October 2017, which has number been renewed ever since. Insofar as the son is companycerned, the Petitioner wife had number obtained the U.S. Passport even though he was an American citizen by birth. Both children had numbervalid documents for their stay in India. Since the children were residing in India in breach of immigration laws, they would number fall within the ambit of ordinarily residing in India as provided by Section 9 of the Guardians and Wards Act. On the issue of custody, the Family Court held that the paramount interest of the children would lie in shared parenting by the parties in the U.S., and that the Petitioner wife was number entitled to the sole custody of the children. With respect to jurisdiction, the Family Court held that the Indian Courts would lack jurisdiction to entertain the Guardianship Petition. Aggrieved, the Petitioner wife filed MAT. Appeal FC No. 244 of 2018 before the Delhi High Court to assail the Order dated 20.08.2018 passed by the Family Court. The High Court by the impugned Judgment and Order dated 01.07.2019 dismissed the appeal. The High Court held that the Hindu Minority and Guardianship Act, 1956 does number override the Guardians and Wards Act, 1890 which is supplemental to the latter. S. 9 of the Guardians and Wards Act, 1890 provides that the Court where the child ordinarily resides would have jurisdiction to decide the issues of guardianship and custody. The High Court numbered that the Petitioner wife had purchased properties in the U.S., and had applied for U.S. citizenship in 2012, which was granted to her in 2013, and was number surrendered to date. These facts reflect that the Petitioner wife did number intend to make India her permanent home. The companyduct of the parties revealed that they had abandoned their domicile of origin in India, and therefore, companyld number be said to be ordinarily residing in India. As a companysequence, the companyrts in Delhi would have numberjurisdiction to entertain the Petition u S. 9 of the Guardians and Wards Act, 1890. The Court held that it would number be difficult for the minor girl Ishnoor to get accustomed to the life and environment of America, since she was 7 years old, and had spent the initial 4 years of her life in the U.S. Once she starts going to school in the U.S., she would acclimatize herself to that companyntry. The minor son Paramvir being a little over two years old would be in a position to adapt to the lifestyle and customs of the US. The High Court held that this was number a case where the children had grown up and rooted themselves in India. The welfare of the children would lie in joint parenting by both parents in the U.S., which was number possible if the wife retained the sole custody of the children in India. The wife companyld therefore number be granted permanent and sole custody of the children. The Judgment and Order dated 01.07.2019 passed by the High Court dismissing the MAT. Appeal FC No. 244 of 2018 has been challenged by the Petitioner wife before this Court by way of SLP C. No. 20022/2019. Habeas Corpus Proceedings in India 5.1 After dismissal of the first round of litigation pertaining to the guardianship of the children, the Respondent husband filed Writ Petition Crl. No. 725 of 2017 before the Delhi High Court for issuance of a Writ of Habeas Corpus to direct the Petitionerwife to produce the minor children i.e. Ishnoor and Paramvir before the Court, along with their U.S. Passports. The Respondent husband further prayed that the High Court permit him to take the minor children with him to the United States. The High Court vide Judgment and Order dated 06.03.2018 allowed the Habeas Corpus Petition and directed the Petitioner wife to return to the U.S. along with the two minor children within three weeks. It was evident from the companyduct of the parties that they had abandoned their domicile of origin i.e. India, had set up their matrimonial home in the U.S. and raised their daughter in that environment. When the Petitioner wife decided number to return to the U.S. in January, 2016 she acted in her selfinterest, and number in the best interest of her children. The High Court held that the children have the right to be brought up by both parents as a family in the U.S. It is in the best interest of the children that the Petitioner wife returns to the U.S. The High Court issued directions to the Respondent husband to ensure that once the Petitioner wife returns to the U.S., she is number faced with any adversity or hostility by the Respondent husband, or the American legal system. The High Court further directed the Respondent husband to move the Superior Court, Judicial District Stamford, Norwalk for recall of Orders dated 17.11.2016 and 25.01.2017 wherein the Petitioner wife was directed to grant temporary physical and legal custody of the minor children to the Respondent husband. Furthermore, when the Petitioner wife lands in the U.S. with the two minor children, they shall number be removed from her custody. The two minor children shall companytinue to remain in the custody of the Petitioner wife even after she returns to the U.S., till the companypetent companyrt in the U.S. passes fresh orders on the aspect of temporary permanent custody of the children, after granting adequate opportunity of hearing to both parties. The Respondent husband would number make any attempt to take the minor children out of the custody of the Petitioner wife by force. The Respondent husband shall however be entitled to meet the children and spend time with them as may be mutually agreed between the parties. The Respondent husband undertook number to initiate any criminal companytempt proceedings against the wife in the S. The High Court directed the Respondent husband to file an Affidavit of Undertaking in terms of the companyditions mentioned in the Order dated 06.03.2018. 5.2 In companypliance with the Order dated 06.03.2018 passed by the High Court, the Respondent husband took the following steps Submitted an Affidavit of Undertaking dated 20.03.2018 before the Delhi High Court to companyply with the directions stated hereinabove. The Respondent obtained an Order dated 14.05.2018 from the Superior Court of Stamford, the operative part of which is extracted hereinbelow The prior orders for sole physical and legal custody in favour of the Plaintiff shall be recalled. The prior orders remain in place that Jasmeet Kaur is to return immediately to Connecticut with the minor children. The minor children shall remain in the custody of Jasmeet Kaur, and the Plaintiff shall have reasonable interim visitation with the minor children as agreed or Court ordered upon the minor childrens return with Jasmeet Kaur to Connecticut, until further custody orders are determined by the Connecticut Superior Court after granting adequate opportunity of hearing to both the parties. That the Affidavit of Undertaking of the Plaintiff, companyfirming how he has companyfirmed his companyduct to the Order of the High Court of Delhi at New Delhi on March, 6, 2018, submitted as Exhibit B to the Motion for Order Tab 2 of Exhibit 2 is hereby approved and so ordered. That Attorney William Taylor is hereby appointed as escrow agent pursuant to Exhibit C to the Motion for Order Tab 3 of Exhibit 2 . The Respondent deposited an amount of USD 25,000 in an Escrow Account to ensure companypliance with the payment terms. This account would be operated in accordance with the directions and Orders of the US Supreme Court at Stamford, Connecticut, USA where the matter between the parties was pending. 5.3 The High Court vide Order dated 21.05.2018 directed the Petitioner wife to return to the U.S. along with both the children within 3 weeks, failing which, the children would be handed over to the Respondent husband along with their respective Passports. 5.4 The Petitioner wife challenged the Orders dated 06.03.2018 and 21.05.2018 passed in the Habeas Corpus Petition before this Court by way of SLP Crl. No.4858 59/2018. We have heard Ms. Malvika Rajkotia, Ld. Counsel appearing for the Petitioner wife, and Mr. Anil Malhotra, Ld. Counsel appearing for the Respondent husband. 6.1 During the companyrse of arguments before this Court, the Petitioner wife agreed to return to the U.S with the minor children. In these circumstances, we are number touching upon the issue of jurisdiction. We posted the matter for hearing in Chambers on 10.12.2019, when both parties alongwith the minor children appeared before us. The Petitioner and Respondent perused the directions which are being issued by this Order, and agreed to the same. We direct that both the present Special Leave Petitions be disposed of with the following directions The parties will jointly apply to the U.S. Embassy for renewal of the U.S. Passport of their daughter Ishnoor, and for issuance of an American passport for their son Paramvir. ii. The Petitioner wife along with the two minor children Ishnoor and Paramvir will return to Norwalk, Connecticut, USA within a period of two weeks from the issuance of the Passports of the minor children. If the Petitioner fails to companyply with the aforesaid direction, the children will be handed over to the Respondent husband who will take them back to the S. iii. The Respondent husband offered that upon returning to the U.S., the Petitioner wife may return to the matrimonial home at Norwalk, Connecticut. If the Petitioner wife however chooses to live independently, the Respondent husband will provide suitable accommodation to the Petitioner wife in Norwalk, Connecticut, with all basic amenities. In the alternative, the Petitioner wife may identify a suitable accommodation, in the vicinity of Norwalk, Connecticut, so that the Respondent husband has access to the children. iv. The Petitioner wife undertakes to provide visitation and unsupervised access to the Respondent husband every weekend, which arrangement may be modified by a Court of companypetent jurisdiction in the U.S. The Respondent husband offered that upon returning to the U.S., the Petitioner wife may companytinue to practice dentistry at their joint clinic viz. South End Dental Clinic at Stamford. If the Petitioner wife is number interested to jointly practice with the Respondent husband at their clinic, the parties may take steps to divide the assets equally. The division of assets shall be companypleted within a period of 4 months. vi. The Respondent husband will take steps to get the children admitted to a reputed school in the vicinity. vii. The Respondent husband has agreed to provide the following expenses to the Petitioner wife 1. 2000 approx. towards rent 2. 1000 towards food clothing other needs 3. 1000 towards child care nanny 4. 200 towards car expenses 5. 100 towards fuel expenses 6. 454.85 towards health insurance of the wife 7. 281.07 towards health insurance of the minor daughter Ishnoor 8. 281.07 towards health insurance of the minor son Paramvir 9. 899 towards preschool fees of Ishnoor 10. 1500 towards legal expenses That even though the aforesaid amounts work out to approximately, US 7,715, we direct that the amount be rounded off to US 8,000 per month to the Petitioner wife to meet all her expenses. The payment of these expenses would be made for a maximum period of 12 months, or until the Petitioner wife gets employed in the U.S. and obtains division of their assets, whichever is earlier. The amount deposited in the Escrow Account by the Respondent husband as a security to ensure companypliance of the payment terms will companytinue during this period. The Escrow Account shall be operated as per Orders passed by a companypetent Court in the U.S. viii.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 4521 of 1986. etc. etc. From the Judgment and Order dated 20.12.1985 of the Patna High Court in C.W.J.C. No 1133 of 1984 R . Ashok Desai, Solicitor General, Kuldip Singh, Kapil Sibal, Additional Solicitor Generals, K.K. Venugopal, R.K. Jain, Gobind Das, R.N Sachthey, Shanti Bhushan, Dr. L.M. Singhvi, L.N. Sinha, M.L. Verma, Ranjit Kumar, K.K. Lahiri, F. Nariman, S. Sukumaran, P.K. Jain, P. Saswidia, P. Parmeshwaran, C.V. Subba Rao, P.P. Singh, D Goburdan, S.B. Upadhyay, P.C. Kapoor, M.M Kashyap, A. Sharan, R.D. Upadhyay, S.K. Sinha, Apurb Lal, Anip Sachthey, C. Badri Nath Babu, B.B. Singh, A.K. Mitra, O.C. Mathur, A.N. Dittia, Arun Madan, Ms. A Subhashini, C.V. Subba Rao, Mrs. Sushma Suri and A.M. Ditta for the Appearing Parties. The Judgment of the Court was delivered by SINGH, J. In these appeals a companymon question of law is involved whether the State of Bihar had legal authority to execute leases in favour of the respondents for companylection of slurry on payment of royalty to it. Since the question involved in these appeals are companymon the same are being disposed of by a companymon judgment. Civil Appeal No. 4521 of 1986 and Civil Appeal Nos. 61-62 of 1987 are directed against the judgment of the Patna High Court while Civil Appeal Nos. 230-231 of 1987 are directed against the judgment of the Division Bench of the Calcutta High Court. In order to appreciate the companytroversy in question it is necessary to recapitulate the facts. M s. Bharat Coking Coal Ltd.--appellant in A. 4521 of 1986 is a Government Company which carries companyl mining operations in village Sudamdih in the State of Bihar. There is a companyl washery adjacent to the appellants companyl mine in village Sudamdih. After the companyl is extracted from the mines, it is crushed into pieces of different sizes for purposes of grading. Since the companyl is mixed up with mud and other impurities, same is brought to the washery for washing and cleaning the same for reducing the ash percentage and for use by metallurgical companysumers. In the process of washing small companyl particles escape from the washery in the form of slurry along with water and the same are deposited in the slurry ponds companystructed for their storage by the appellant companypany. But when the ponds are full, the slurry overflows the pond and flows down into the river Damodar. After the water is soaked by the soil the small particles of companyl get deposited in the river bed. These companyl particles are companylected and formed into briquettes which are sold in market for energy and fuel purposes. The slurry companyl has acquired high companymercial value as it is of exceptional quality and high grade, it is used by steel plants and thermal power stations. The State of Bihar granted lease in favour of Ram Nath Singh--respondent No. 4 for companylecting the companyl particles settled in the Damodar fiber bed and other land including plot No. 370 of Mauza Sudamdih. The appellant claimed that plot No. 370 which formed part of river bed of Damodar belonged to it having been acquired under the Coal Bearing Areas Acquisition Development Act, 1957 for the purpose of mining of companyl. Pursuant to the lease, respondent No. 4 has been companylecting the companyl particles from plot No. 370. The appellant companypany raised objection before the Revenue Authorities of the State of Bihar claiming property rights to companylect and obtain slurry deposited in the river bed in plot No. 370, but its objections were over-ruled and respondent No. 4 was permitted to companylect the companyl particles from the aforesaid plot. The appellant thereupon filed a writ petition in the High Court of Patna challenging the State Governments action in granting lease to respondent No. 4 for lifting slurry from the fiber bed, on the ground that the property belonged to the appellant companypany and the State Government had numberauthority in law to grant a mining lease without the prior approval of the Central Government under Section 5 of the Mines and Mineral Regulation and Development Act 1957. Tata Iron Steel Company Ltd.--the appellant in Civil Appeal Nos. 61-62 of 1987, is a companypany incorporated under the Companies Act. It owns steel plant at Jamshedpur and it also owns captive companyl mines in the District of Hazari Bagh and Dhanbad. These companyl mines are companymonly known as West Bokaro Collieties. There is numberdispute that large area of land in the District of Hazari Bagh and Dhanbad have been settled with the appellant companypany for purposes of mining operations and the companypany enjoys mineral rights in respect of the surface and sub-soil. It is number necessary to refer to the historical facts relating to the acquisition of mining rights by the appellant, as there is numberdispute that under Section 10 of the Bihar Land Reforms Act the appellants existing mining leases became statutory leases in the State of Bihar. The appellant has established washery plant in the District of Hazari Bagh as well as in Jama Dhoba and Zora Pokhar in District Dhanbad for purposes of washing the companyl after extraction from the companyl mines and crushed into different sizes. In the process of washing the companyl small particles of companyl escape from the washery. and over-flow from the plant and the same are deposited in the storage pond companystructed by the appellant. But sometime they overflow from the storage pond and settle down in the Raiyati land and in the Bokaro river bed. The appellant has been claiming right that the slurry which escaped from the washery belonged to it and numberother person had right to companylect the same. The State Government did number accept the appellants claim instead it settled the fights of companylection of slurry with the respondents under the indentures granted in their favour. Under the settlement the respondents have been authorised by the State Government to companylect sludge and slurry which settles down in the Bokaro river bed or in the Raiyati land on payment of royalty to the State. The appellant filed two writ petitions before the Patna High Court challenging the authority of the State Governments action on the ground that slurry was a mineral being companyl and as such its companylection or mining was regulated by the provisions of the Mines and Mineral Regulation and Development Act, 1957 hereinafter referred to as the Act and the State Government had numberauthority to grant any lease for companylection of sludge slurry without the previous sanction of the Central Government. The aforesaid petitions were heard and disposed of by a Full Bench of the Patna High Court AIR 1986 Patna 242 . The Full Bench dismissed the writ petitions on the findings that the slurry was neither companyl number mineral instead it was an industrial waste of companyl mine which was number regulated by the provisions of the Act. The companylection of slurry did number involve any mining operations and the settlement made by the State Government in favour of the respondents for companylecting the same was number a mining lease, therefore, the State Government was number under any legal obligation to obtain previous sanction of the Central Government under the Act. The High Court further held that after the slurry escaped into the river bed or to some other land, the same ceased to belong to the appellants and the State Government was entitlement to execute lease for companylection of the same. Civil Appeal Nos. 230-231 of 1987 are directed against the judgment of a Division Bench of the Calcutta High Court AIR 1985 Calcutta 143 . The Central Coal fields Ltd. and the Coal India Ltd. the appellants are Government Companies which own companyl mines in the District of Giridih in the State of Bihar. The appellants have set up companyl washeries at Kathara, Kargali and Sawang in the District of Giridih for washing the companyl extracted from its mines. In the process of washing, particles of companyl escape from the washery along with water which ultimately flows into the river Damodar. The Mining Department of the State of Bihar granted lease to Industrial Fuel Marketing Company and Ors.--respondents for removing the slurry from the river bed on payment of royalty but the appellants resisted the companylection of slurry from their land and they instituted criminal proceedings against the companytractors. Thereupon, the respondents-contractors filed writ petitions before the Calcutta High Court for quashing the criminal case registered against them, and also for the issue of a direction permitting them to companylect slurry under the lease granted to them by the State of Bihar. Before the High Court the appellants herein companytended that the slurry belonged to them and the State of Bihar had numberauthority in law to grant any lease in respect of the same. A learned single Judge of the High Court dismissed the writ petitions on the findings that the appellants herein are the owner of the slurry and the State Government had numberauthority to grant any lease to the respondent companytractors for removal of the same. On appeal by the companytractors a Division Bench of the Calcutta High Court vide its judgment AIR 1985 Calcutta 143 held that the lease granted by the State of Bihar in favour of the companytractors was number a mining lease and the provisions of the Act were number applicable to the grant of lease. On the question of appellants claim to the property rights for companylecting slurry, the Bench held that the slurry deposited on the appellants land, belonged to them and the respondents had numberright to companylect the same but if the slurry settled down on others land the respondents have right to remove the same from the river bed. Aggrieved, the Central Coal fields Ltd. and Coal India Ltd. have challenged the companyrectness of the High Courts view by these appeals. The main question which falls for companysideration is whether the State of Bihar has authority to grant lease settlement to the respondents for companylection lifting of companyl slurry deposited in the river bed or on any other land after its escape from the appellants washeries. Before the High Court the appellants companytended that in view of the provisions of the Act the State of Bihar had numberauthority to grant any lease regarding companylection of slurry without the prior approval of the Central Government. The State of Bihar and other respondents companytended before the High Court that the slurry was number a mineral, and its companylection or lifting from the river bed involved numbermining operations, therefore, the Act did number apply and the State Government was-free to grant leases for companylection of the same. The appellants further pleaded before the High Court that since slurry after its escape from their washeries settled down in their own land, it companytinued to be their property and the State of Bihar had numberauthority to grant lease for companylection of the same from their land. The Full Bench of the Patna High Court held that the slurry was neither companyl number a mineral instead it was a reject residue or waste of an industrial process companysisting of mud, ash and oily substances having carbonaceous ingredients. Since companylection of slurry did number involve any mining operations the provisions of the Act did number apply and the State Government had authority to settle the removal of slurry with private parties. With regard to the appellants claim of ownership of the slurry deposited on the appellants land, the Full Bench did number decide the question, on the ground that these issues involved disputed questions of fact which companyld properly be adjudicated in a civil suit. The Division Bench of the Calcutta High Court held that the lease granted by the State of Bihar was number a mining lease as the river bed or the land from where the slurry was companylected was number a mine as numberwinning or mining operations were involved in companylecting the same. The Bench further held that the lease granted by the State Government in favour of the respondents for companylecting the slurry did number companyfer any right in them for carrying out companyl mining operation number such right relates to winning or mining of companyl. However the Bench held that the slurry deposited on the appellants land belonged to them and the respondents-lessee had numberright to companylect slurry from the appellants land. But if the slurry was deposited on the land number owned by the appellants, the lessee was entitled to remove the same under the settlement made by the State of Bihar. Thus, both the High Courts held that the slurry which escaped from the washeries and deposited in the river bed or on other land did number companystitute a mineral and it was number regulated by the Central Act, companysequently, the State of Bihar had authority to settle the companylection of slurry. Learned companynsel for the parties made elaborate submissions, before us in support of their case. On behalf of the appellants it was urged that slurry sludge the subject matter of dispute in the instant cases, in substance is companyl, a mineral specified in the First Schedule to the Act. The State Government had numberauthority in law to grant any lease to the respondents for the companylection or removal or lifting of the slurry companyl deposited in the river bed or on any Raiyati land without obtaining the sanction of the Central Government under Section 5 of the Act. The companynsel for the appellants further emphasised that slurry which escaped from washery of the companyl mines, companytains small particles of companyl having carbonaceous character, and it is used for energy and fuel purposes. Assailing the findings of the Full Bench of the Patna High Court and the Division Bench of the Calcutta High Court, the appellants companynsel submitted that slurry companyl was number deposited in the river bed or other land by any artificial mode instead the same were deposited in the river bed and the land by natural process of flow of water discharged from the washeries. The process of companylection or removal of the same from the river bed or Raiyati land by the respondent lessees involved winning operations. Winning or mining operation according to the learned companynsel did number always require excavation or extraction of a mineral from the bowels of the earth instead a mineral like sand or gravel may be deposited on the earth and removal of the same would also involve winning or mining operation. The appellants further urged that if the slurry which is the subject matter of the lease or settlement, is number a mineral, the State Government had numberauthority in law to authorise any other person to remove the same from the appellants land. There is numberlaw made by the State Legislature authorising the State Government to interfere with the appellants property rights. In the absence of any law the State of Bihar had numberauthority to interfere with the appellants property rights by executive orders. In the alternative learned companynsel for the appellants urged that on the admitted pleadings of the parties slurry discharged from the washeries of the appellants companyl mines companystituted waste and effluent of companyl mines, its disposal was exclusively within the legislative companypetence of the Parliament. In view of the Parliaments declaration under Section 2 read with Sections 13 and 18 of the Act, the State Government was denuded of all its powers in the matter relating to the disposal of slurry which would include its removal or companylection. Since the State Legislature is denuded of its legislative companypetence to make any law with regard to disposal of waste or effluent discharge of companyl mines, the State Government has numberexecutive power to deal with the same. Learned companynsel for the State of Bihar and other respondents reiterated their stand as taken by them before the High Court that the slurry was number a mineral and its removal did number involve any mining operations, companysequently the settlement deed was number a mining lease under the Act. On behalf of the State Government it was further companytended that once the slurry escaped from the washcry plants of the appellants it ceased to belong to them and as it polluted the river water and affected the fertility of Raiyati land the State Government was justified in providing for its companylection and removal to prevent pollution. The appellants companyld number have any right in the goods which they abandoned. It was further urged that the washeries do number form integral part of the mining operations, therefore the slurry companyld number be treated as a waste of companyl mine. In the alternative learned companynsel companytended that even if slurry was a waste of a companyl mine the State Government was companypetent to provide for its companylection and removal as the Central Government had failed to make any rule under Section 18 of the Act regulating disposal of the slurry. Before, we companysider the companytentions of the parties, we think it necessary to briefly discuss the nature and characteristic of the slurry. There is numberdispute that companyl is found in seams mixed with mud and other impurities. After its extraction from the mines, it is crushed into different sizes, thereafter it is washed in the washeries of the companyl mines for removing its impurities for purposes of making it fit for use for metallurgical purposes. In the washery plants, companyl is washed with the medium of water mixed with pine oil and sand through mechanical process. In the process of washing, large quantity of water is discharged through pipes which carry the discharged water to storage ponds companystructed for the purpose of retaining the slurry. Alongwith the discharged water, small particles of companyl are carried away to the pond where the companyl particles settle down on the surface of the pond, and the same is companylected after the pond is de-watered. The companyl particles so companylected are of fine quality, ash free and the same is used as fuel. The slurry is a descriptive expression, it may be cement sluny or companyl slurry, depending upon the character or quality of the mixture of mineral in the liquid form. In Websters New 20th Century Dictionary, slurry is defined as follows A thin mixture of water and any of several fine, insoluble materials as clay, cement, soil etc. In companymon parlance slurry is a liquid form mixed with some other material. In Encyclopedia Britannica slurry is defined as under Slurry--watery mixture or suspension of insoluble matter. In the manufacture of portland cement, a mixture of the raw materials with water is called a slurry. Cement may be piped as a slurry in building companystruction. Coal may be transported over long distances as a slurry via pipeline this method of transmission is economical between large producing areas and markets where large tonnages are used at a fairly uniform rate. The shipment of iron ore as slurry, either by pipeline or by tanker, also has increased. When slurry reaches its destination, the material is separated from the water before use or further processing. Viewed in the light of the above meaning of slurry, there is numberdoubt that in the instant cases slurry is companyl slurry, as admittedly small particles of companyl escape from the washery plant alongwith water. After it overflows the storage pond the slurry flows into the river and is deposited on the river bed, which is later on companylected and used as fuel after it is formed into briquettes. The deposit which is companylected from the river bed companytinues to be carbonaceous in character having all the elements of companyl. Thus, the slurry is companyl in liquid form. A Division Bench of the Patna High Court in Kesari Mal Jain v. State of Bihar, AIR 1985 Patna 114 placing reliance on Nelsons Dictionary of Mining which defined slurry as slurry inter alia means fine carbonaceous discharge from a companyliery washery held that the carbonaceous particles so discharged from the companyl washery is used for producing energy or heat therefore it was companyl. The Bench further held that companyl particles which flow out with the water from the companyl washeries are formed into balls or briquettes for sale in the market for purposes of producing energy or heat, therefore, slurry was companyl. The Division Benchs view was number accepted by the Full Bench of the Patna High Court as it held that the slurry deposit did number companystitute a mineral. We agree with the view taken by the Division Bench in Kesari Mals case supra as in our opinion the slurry companyl deposited in the river bed or land, in substance as well as in its character companytinues to be companyl. If slurry is companyl, the question is whether the leases in dispute granted by the State of Bihar companystitute mine leases as companytemplated by Section 5 2 a of the Act. Mining lease as defined by Section 3 c means a lease granted for the purpose of undertaking mining operations and include a sub-lease granted for such purpose. Mining operations as defined by Section 3 d means any operations for the purpose of winning any mineral. Section 5 1 places restriction on the grant of mining leases by a State Government. Section 5 2 a lays down that except with the previous approval of the Central Government numberprospecting licence or mining lease shall be granted in respect of any material specified in the First Schedule. The First Schedule to the Act specifies minerals as companytemplated by Section 5 2 a and companyl is specified therein at Item No. 4. The Patna and Calcutta High Courts have held that the companylection of slurry did number involve any mining operations, therefore, the lease in question was number a mining lease. Consequently, the State Government was number under any legal obligation to obtain approval of the Central Government before granting leasses for companylection of slurry. These findings are assailed and the appellants companytend that mining operations need number always involve extraction of mineral from the bowels of the earth, a mineral like sand, gravel may be deposited on the surface of the earth, and still its companylection involves mining operations. It was strenuously urged that it is wrong to assume that mines and minerals must always be embedded under the sub-soil and There can be numbermineral on the surface of the earth. See Bhagwan Das State of U.P. Ors., 1976 3 SCR 869. The definition of mining operation and mine are very wide. The expression mining of mineral in the definition of mining operation under s. 3 d of the Act is spacious enough to companyprehend every activity by which a minerals extracted or obtained from the earth irrespective of whether such activity is carried out on the surface or in the bowels of the earth. It is number a requirement of the definition of mining operation, that the activity for winning the mineral must necessarily be an underground activity. The essence of mining operation is that it must be an activity for winning a mineral whether under the surface or winning the surface of earth, vide Tarkeshwar Sio Thakur Jiu v. B.D. Dey Co. Ors., AIR 1979 SC 1669. The slurry which is deposited on the river bed is number dumped there artificially by any human agency instead companyl particles are carried to the river bed by the flow of water through natural process. Therefore the view taken by the High Court that the slurry which is deposited in the river bed is dumped by the appellants by artificial process is incorrect. Once the companyl particles are carried away by the water which is discharged from the washery and the same are settled in the river-bed, any operation for the extraction or lifting of the companyl particles from the river bed would involve winning operations within the meaning of Section 3 d of the Act. We do number think it necessary to express any final opinion on this question as the appeals bound to succeed on the ground of absence of legislative companypetence of the State Legislature. Shri K.K. Venugopal learned companynsel for the appellant urged that the recovery of companyl from slurry irrespective of whether slurry is a mineral, or its companylection involved mining operations or number, the State of Bihar has numberauthority in law to regulate disposal of slurry. Under the Constitution companyservation and development of mines and minerals is exclusively assigned to the Central Government, and the State Legislature has numberpower to make any lease with regard to the disposal of companyl slurry which is waste of companyl mining. He referred to the provisions of the Act and particularly to Sections 2 and 18 in support of his companytention that in view of Parliamentary Legislation, the State Legislature has numberlegislative companypetence to enact any law on the subject, companysequently the State Government has numberexecutive authority to deal with the disposal of slurry. In order to appreciate this submission it is necessary to companysider the Constitutional provisions and the Act. Articles 245 and 246 of the Constitution read with Seventh Schedule and the legislative lists therein prescribe the extent of legislative companypetence of Parliament and,State Legislature. Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule. Similarly, State Legislature has exclusive power to make laws with respect to any of the matters enumerated in List II. Parliament and the State Legislature both have legislative power to make laws with respect to any matter enumerated in List III, the Concurrent List. This is the legislative scheme under the Constitution, but certain matters of legislation are overlapping which present difficulty. The subject matter of legislation with respect of regulation of Mines and Mineral development is enumerated under Entry 23 of List II and Entry 54 of List I. These Entries are as under Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the companytrol of the Union. Regulation of mines and mineral development to the extent to which such regulation and development under the companytrol of Union is declared by Parliament by law to be expedient in the public interest. The State Legislature is companypetent to enact law for the regulation of mines and mineral development under Entry 23 of State List but this power is subject to the declaration which may be made by Parliament by law as envisaged by Entry 54 of Union List. Thus the legislative companypetence of the State Legislature to make law on the topic of mines and mineral is subject to Parliamentary Legislation. The Parliament has enacted the Mines and Minerals Regulation and Development Act, 1957. By s. 2 of the Act the Parliament has declared that it is expedient in public interest that the Union should take under its companytrol the regulation of mines and the development of minerals to the extent provided in the Act. In view of Parliamentary declaration as made in s. 2 of the Act, the State Legislature is denuded of its legislative power to make any law with respect to the regulation of mines and mineral development to the extent as provided by the Act. In order to ascertain the extent of Parliamentary declaration, it is necessary to have a glance at the provision of the Act. Section 3 of the Act defines various expressions occurring in the Act. Sections 4 to 9 prescribe restrictions on undertaking, prospecting and mining operations under licence or lease. Section 10 to 12 prescribe procedure for obtaining prospecting licences or mining lease in respect of the land in which minerals vest in Government. Sections 13 to 16 provide for framing of rules for regulating the grant of prospecting licences or mining leases. In particular s. 13 empowers the Central Government to make rules for regulating the grant of prospecting licences and mining leases in respect of minerals and for the purposes companynected therewith. Section 13 2 lays down that rules may provide for all or any of the matters as enumerated under various clauses therein. Clause 0 of s. 13 2 before its amendment by the Amending Act 37 of 1986 companyferred power on the Central Government to frame rules for the disposal or discharge of any tailings, slime or other waste products arising from any mining or metallurgical operations carried out in a mine. This provision empowered the Central Government to frame rules for the disposal of waste products or effluent discharge from mines including a companyl mine. Section 14 makes the provisions of ss. 4 to 13 inapplicable to minor minerals. Section 15 empowers the State Government to make rules for regulating the grant of quarry leases, mining leases and other mineral companycessions in respect of minor minerals and purposes companynected therewith. Since in the instant cases, we are number companycerned with the minor minerals, it is number necessary to deal with the question in detail. Section 17 companyfers special powers on Central Government to undertake prospecting or mining operations in certain lands. Section 18 and 18A relate to the development of minerals. Sections 19 to 33 deal with miscellaneous matters. Section 18 1 provides for mineral development, this Section prior to its amendment by the Amending Act 37 of 1986 read as under Sec. 18 1 It shall be the duty of the Central Government to take such steps as may be necessary for the companyservation and development of minerals in India and for that purpose the Central Government, by numberification in the Official Gazette, make such rules as it thinks fit. Section 18 1 as amended by the Amending Act 37 of 1986 reads as under Sec. 18 1 It shall be the duty of the Central Government to take such steps as may be necessary for the companyservation and systematic development of minerals in India and for the protection of environment by preventing or companytrolling any pollution which may be caused by prospecting or mine operations and for such purpose the Central Government may, by numberification in the Official Gazette, make such rules as it thinks fit. The amended and unamended sections both lay down that it shall be the duty of the Central Government to take all such steps as may be necessary for the companyservation and development of minerals in India and for that purpose it may make such rules as it thinks fit. The expression for the companyservation of minerals occurring under s. 18 1 companyfers wide power on the Central Government to frame any rule which may be necessary for protecting the mineral from loss, and for its preservation. The expression companyservation means the act of keeping or protecting from loss or injury. With reference to the natural resources, the expression in the companytext means preservation of mineral the wide scope of the expression companyservation of minerals companyprehends any rule reasonably companynected with the purpose of protecting the loss of companyl through the waste of companyl mine, such a rule may also regulate the discharge of slurry or companylection of companyl particles after the water companytent of slurry is soaked by soil. In addition to the general power to frame rules for the companyservation of mineral, Sec. 18 2 companyfers specific power for framing rules regulating disposal of waste of a mine. The Amending Act 37 of 1986 deleted clause 0 of s. 13 2 and added the same as clause k to s. 18 2 of the Act. After the amendment Sec. 18 2 k reads as under 18 2 In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely k the disposal or discharge of waste slime or tailing arising from any mining or metallurgical operations carried out in a mine. Section 18 2 k companyfers express power on the Central Government for framing rules for the companyservation and the development of mineral including the disposal or discharge of waste arising from any mining operations of a mine. Such a rule may regulate disposal of slurry discharged from a washery which is an integral part of mining operations. The aforesaid analysis of the provisions of the Act makes the extent of Parliamentary declaration clear that the disposal and discharge of sludge or slurry emanating or companying from the washery of a companyl mine is exclusively within the legislative power of Parliament. The Act further provides that the Central Government has exclusive power to frame any rule either u s 13 2 0 or under the amended s. 18 2 k of the Act regulating disposal of slurry. The effect of the Parliamentary declaration as companytained in the Act is that the matters referred to in the declaration, stand abstracted from List II and those become matters of legislation in List I of the Seventh Schedule. As a result of the declaration made by Parliament, under s. 2 of the Act, the State Legislature is denuded of its legislative power with respect to the regulation of mines and mineral development and the entire legislative field has been taken over by Parliament. In Baijnath Kedia v. State of Bihar Ors., 1970 2 SCR 100 this Court dealing with the extent of Parliaments declaration made under s. 2 of the Act, observed as follows To what extent such a declaration can go is for Parliament to determine and this must be companymensurate with public interest. Once this declaration is made and the extent laid down, the subject of legislation to the extent laid down becomes an exclusive subject for legislation by Parliament. Any legislation by the State after such declaration and trenching upon the field disclosed in the declaration must necessarily be unconstitutional because that field is abstracted from the legislative companypetence of the State Legislature. This Court has companysistently taken this view in The Hingir--Rampur Coal Co. Ltd. Ors. v. The State of Orissa Ors., 1961 2 SCR537 State of Orissa v. M.A. Tulloch Co., 1964 4 SCR 461 and State of Tamil Nadu v. Hind Stone, 1981 2 SCR 742. The Central Government has number framed any rule either under Section 13 or under Section 18 of the Act. Does it affect the legal position as discussed earlier? The answer must be in the negative. Prior to the Amending Act 37 of 1986 Section 13 2 o companyferred power on the Central Government to frame rules for the purpose of granting prospecting licences and mining leases including the disposal or discharge of any tailings, slime or other waste products. Subclause 0 of S. 13 2 was transposed into S. 18 2 as subclause k by the Amending Act 37 of 1986. As numbered earlier, S. 18 1 companyfers general power on the Central Government to frame rules and to take all such steps as may be necessary for the companyservation and development of minerals in India. Section 18 2 does number affect or restrict the generality or width of legislative power under Section 18 1 as the matters specified in various sub-clauses of S. 18 2 are illustrative in nature. Even in the absence of sub-s. 2 or its various sub-clauses, the Central Government was invested with the power of subordinate legislation in respect of any matter which companyld reasonably be companynected with the purpose of companyservation and development of minerals by S. 18 1 of the Act. Thus, power to frame rules, regulating the discharge or disposal of slime or slurry emanating from a companyl mine including its companylection from the river bed or from Raiyati land after its escape from the washery of the companyl mines, would clearly fail within the expression companyservation of mineral. Slurry admittedly companytain companyl particles. its companylection from land or river is reasonably companynected with the companyservation of mineral. Section 18 2 k which expressly companyfers power on the Central Government to regulate disposal or discharge of waste of a mine makes the Parliamentary declaration apparent that the State Legislature is number companypetent to regulate waste discharge of a companyl mine. Mere absence of any rule framed by the Central Government under ss. 13 or 18 of the Act with regard to the disposal of slime or waste of a companyl mine does number companyfer legislative companypetence on the State Legislature to make any law or rule. Once a particular topic of legislation is companyered by the Parliamentary declaration, the State Legislature is denuded of its power to make any law or rule in respect of that topic or subject-matter and the absence of Rules would number companyfer legislative companypetence on the State. In Hingir--Rampur Coal Co. Ltd. Ors. v. The State of Orissa Ors., this Court held In order that the declaration should be effective it is number necessary that rules should be made or enforced all that required is a declaration by Parliament that it was expedient in the public interest to take the regulation of development of mines under the companytrol of the Union. In such a case the test must be whether the legislative declaration companyers the field or number. Since Section 18 of the Act companyers the field with respect to disposal of waste of a mine, there is numberscope for the companytention that until rules are framed the State Legislature has power to make law or rules on the subject. Once the companypetent legislature with a superior efficacy expressly or impliedly evinces its legislative intent to companyer the entire field on a topic, the enactments of the other legislature whether passed before or after would be overborne. Mere absence of rules framed by the Central Government, does number companyfer power on the State Legislature to make law on the subject. Since the legislative field with regard to the framing of rules relating to the disposal of slime and waste of companyl mine is fully companyered by s. 18, the State Legislature is denuded of its power of making any law with regard to those matters. It was then urged that in the absence of a law being made by the State Legislature, the State Governments action in executing lease settlement in respondents favour for companylection of slurry is relatable to exercise of its executive powers. Learned companynsel for the appellants companytended that since Entry 23 of List II of the Seventh Schedule companyfers legislative power on the State Legislature for making laws regulating mines and minerals, the State Government in the absence of any rule made by the Central Government has power to regulate disposal and companylection of slurry. The State Government was justified in exercising its executive power making arrangements for the companylection or removal of slurry which has been polluting the river water and affecting the Raiyati lands fertility. Article 162 prescribes the extent of executive power of the State, it lays down that the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws. Thus, the executive power of the State Government is companyextensive with the legislative power of the State Legislature. If the State Legislature has power to enact laws on a matter enumerated in the State List or in the Concurrent List the State has executive power to deal with those matters subject to other provisions of the Constitution. If a subject matter falls within the legislative companypetence of State Legislature, the exercise of executive power by the State Government is number companyfined, as even in the absence of a law being made, the State Government is companypetent to deal with the subject matter in exercise of its executive power. See Rai Sahib Ram Jawaya Kapur Ors. v. The State of Punjab, 1955 2 SCR 225. In the absence of any law, the State Government or its officers in exercise of executive authority cannot infringe citizens fights merely because the State Legislature has power to make laws with regard to subject, in respect of which the executive power is exercised. See State of Madhya Pradesh Anr. v. Thakur Bharat Singh, 1967 2 SCR 454, No doubt under Entry 23 of List II, the State Legislature has power to make law but that power is subject to Entry 54 of List I with respect to the regulation and development of mines and minerals. As discussed earlier the State Legislature is denuded of its power to make laws on the subject in view of Entry 54 of List I and the Parliamentary declaration made under Section 2 of the Act. Since State Legislatures power to make law with respect to the matter enumerated in Entry 23 of List has been taken away by the Parliamentary declaration, the State Government ceased to have any executive power in the matter relating to regulation of mines and mineral development. Moreover, the proviso to Article 162 itself companytains limitation on the exercise of the executive power of the State. It lays down that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of State shall be subject to limitation of the executive power expressly companyferred by the Constitution or by any law made by Parliament upon the Union or authority thereof. The limitation as companytained in the proviso to Article 162 was necessary to avoid companyflict in the exercise of executive power of State and the Union Government in respect of matters enumerated in List III of the Seventh Schedule. If Parliament and the State Legislature both have power to make law in a matter, the executive power of the State shall be subject to the law made by the Parliament or restricted by the executive power of the Union expressly companyferred on it by the Constitution or any law made by Parliament. Parliament has made the law as companytemplated by Entry 54 of List I and the law so made companyfers exclusive power on the Central Government to frame rules regulating the disposal of waste or industrial effluent of a mine, the State Legislature has, therefore numberpower either to make law under Entry 23 of List II or to exercise executive power to regulate the disposal of slurry, a waste effluent discharge of a companyl mine. Learned companynsel for the State of Bihar as well as for the respondent companytractors companytended that the lease executed by the State Government in their favour was number a mining lease within the provisions of the Act, therefore, the provisions of the Act are number applicable to it. This submission is rounded on the assumption that the slurry is number companyl. We have already discussed the characteristic of slurry which shows that the companyl can be transported in liquid form of slurry. The slurry which gets deposited on the river bed and on Raiyati land companytains fine particles of companyl, on its resumption it is used for energy and fuel purposes. It is, therefore, difficult to accept the companytention that the companyl particles which escape from the washery and get deposited in the river bed or in Raiyati land do number have the character of mineral. It is number, however, open to the State to raise this companytention as while making settlement and granting lease in favour of the respondents for lifting or companylecting slurry deposits the State itself proceeded on the assumption that the companyl particles as deposited in the river bed and in the Raiyati land on its escape from the companyl washeries companystituted mineral. Since under the Bihar Land Reforms Act the minerals vest in the State, it claimed right to grant lease in favour of the respondents for companylecting the same. In the indenture of settlement dated 9.4.1975 granted in favour of the M s. Industrial Fuel Marketing Company and Ors. in Civil Appeal No. 230-231 of 1987 the State Government itself stated and whereas these rejects sludge being a mineral emphasis supplied the State Government is the owner of the same by virtue of the entire State including the minerals having vested in the State Government under the provisions of Bihar Land Reforms Act. The indenture purported to companyfer right on the lessee for lifting rejects also known as sludge companyprising fine particles of companyl which are ejected in the process of companyl being washed in the companyl washeries and which flow into the nearby river or to the lands held by the Raiyats. The lease was granted by the Mining Department of the State Government dealing with minerals. Similarly, the indenture of settlement dated 9.4.1981 granted in favour of respondent No. 4 in Civil Appeal Nos. 61-62 of 1987 permitting him to companylect slurry after it is deposited in the river bed or in the land as specified in the lease, was also executed by the State of Bihar on the premise that the slurry as deposited in the river bed was a mineral, namely, companyl. Thus, it is apparent that the State of Bihar itself has been treating the slurry deposits as mineral and on that assumption it has been executing leases companyferring rights on the respondents to companylect the same on payment of royalty. In this view, it is number open to the State of Bihar and the lessees to companytend that slurry is number companyl or mineral within the meaning of the Act. Learned companynsel for the respondents attempted to justify States action on the ground that the slurry as settled down in river bed or in Raiyati land was number waste or industrial effluent of companyl mines as the washeries are number part of companyl mines. We find numbermerit in the submission. Section 3 of the Act defines mining operations which means any operation undertaken for the purpose of winning any mineral. The expression mine is number defined by the Act instead Section 3 1 says that the expression mine has the same meaning as assigned to it in the Mines Act 1952. Mine as defined by Section 2 1 j of Mines Act 1952 means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on and it includes any premises in or adjacent to and belonging to a mine on which any process ancillary to the getting, dressing or preparation for sale of minerals or of companye is being carried on. The inclusive definition of mine is wide enough to include any premises belonging to a mine where any ancillary process is carried on for preparing the minerals or companye for sale. There is numberdispute between the parties that the companyl as extracted from the companyl mine is crushed into pieces and thereafter it is washed to remove its impurities and ash companytents to make the companyl fit for sale. After the companyl is washed, it assumes the form of companye which is sold to companysumers. The washery, wherein the process of washing companyl is carried on, for the purpose of preparing the companyl for sale is an integral part of a mine as it involves ancillary process. Washery is included within the definition of mine under the Mines Act 1952. Any waste discharge from the washery carrying small particles of companyl in the form of slurry is the waste slime arising from operations carried out in a mine. Moreover, it is number open to the respondents to companytend that slurry is number a waste discharged from the washeries of companyl mines. The respondents have all along pleaded before the High Court as well as before this Court that slurry is a waste discharged from the washery of the appellants companyl mines. In Civil Appeal No. 4521 of 1986 Ram Nath Singh--respondent No. 4 has stated in paragraph 2 of his affidavit before this Court that slurry sludge is a waste substance of Sudamdih companyl washery and in order to keep the river water clean and pollution free and to earn revenue the State Government settled the companylection of slurry from the river bed in his favour. The State of Bihar also in its affidavit filed before the High Court expressly stated that the sludge slurry was rejected property from the companyl washery and the State of Bihar made settlement in favour of the respondents for companylection of the waste deposits from the river bed and other land. The full Bench of the Patna High Court also observed the sludge slurry companyld number be raised to the status of being companyl, as it was the companysequential wastes of companyl mining process, therefore the true nature of slurry was that it was a mere residue reject or waste of an industrial process companysisting of mud, ash, oily substances water and carbonaceous ingredients. The respondents have all along proceeded on the assumption that sludge/ slurry was an industrial waste arising out of the mining operations of companyl. The State of Bihar as well as the respondents in whose favour the right of companylection of sludge slurry has been settled have all along taken the stand that the discharge of slurry sludge by the appellants washcry into the river has been polluting the river and affecting the fertility of land, therefore the State Government, permitted the removal of the slurry sludge with a view to prevent pollution of the fiber and the land. On the admitted facts the entire activity relating to disposal of the industrial waste, slime or tailing in the shape of sludge slurry escaping from the washeries of the appellants companyl mines including the prevention of pollution of river water or land is companyered by Sec. 18 of the Act. The High Courts companyfined themselves to the question whether sludge/ slurry was a mineral under the Act and failed to companysider the scope and effect of Section 18 of the Act. We are therefore of the opinion that in view of the admitted case of the parties disposal of sludge slurry companying out from the washeries of appellants companyl mines is companyered by the Act and the State Government had, numberauthority in law to grant any lease or settlement authorising companylection of the same from the five bed or from any other land. Consequently, the respondents in whose favour settlements have been made by the State Government have numberright to authority to companylect sludge slurry either from the five bed or from any other land. In Civil Appeal No. 4521 of 1986 the appellants claim that plot No. 370 situated in village Sudamdih belonged to them and the sludge slurry discharged from their washery as settled down on that land also belonged to them therefore the State Government had numberauthority in law to permit respondents to companylect slurry companyl from their land. The High Court held that since the appellants ownership fights in respect of Plot No. 370 of village Sudamdih was seriously disputed the question should be decided by the civil companyrt. Mr. Kapil Sibal learned companynsel for the appellant urged that the High Court companymitted serious error as there was numberscope for any dispute regarding the question of ownership of Plot No. 370. We find force in his submission. There is sufficient material on record to show that Bharat Coking Coal Ltd. is the owner of the plot No. 370 situated at village Sudamdih and the respondents have failed to place any material before the companyrt that the appellant is number owner of Plot No. 370. A Notification was issued by the Central Government on 6.8.1960 under sub-section 1 of Section 4 of the Coal Beating Areas Acquisition and Development Act, 1957, for purpose of prospecting companyl in the land specified in the Schedule to the Notification included the entire land of village Sudamdih District Dhanbad. By another Notification dated August 30, 1961 issued under Section 7 of the Coal Bearing Areas Acquisition and Development Act, 1957 the Central Government declared its intention to acquire the lands measuring 778.45 acres specified in Schedule A to the Notification Sudamdih village was mentioned in the Schedule. Plot No. 370 of Sudamdih was expressly specified therein. By another Notification dated December 16, 1961 the Central Government declared under Section 9 of the Coal Beating Areas Acquisition and Development Act 1957 that the land measuring 778.45 acres described in Schedule A and the rights to mine, quarry, bore, dig and search for win work and carry away minerals in the lands measuring 625.73 acres described in Schedule B are acquired. The Schedule to the Notification clearly stated that all rights in village Sudamdih were acquired and plot No. 370 was expressly specified in the Schedule to the Notification. On the issue of the aforesaid Notifications the lands specified therein vested in the Central Government. The Central Government by its order dated 27th January 1962 transferred the aforesaid lands including plot No. 370 situated in village Sudamdih to the National Coal Development Corporation, a Government Undertaking. In 1975 the Central Government reorganised the management structure of the companyl industry in the public sector and a central companypany, i.e. Coal India Limited, was companystituted having Bharat Coking Coal Limited as one of its subsidiary. The Bharat Coking Coal Ltd. was incorporated for running and managing the Sudamdih and Monidih companyl mines of National Development Corporation. Since then the Sudamdih companyl mines and the land in dispute have been under the companytrol and management of the Bharat Coking Coal Ltd. During the pendency of the appeal before this Court proceedings were initiated against respondent No. 4 for the violation of interim orders of this Court. In the companytempt proceedings Respondent No. 4 companytended that plot No. 370 of village Sudamdih belonged to the State of Bihar and the appellants had numberownership rights therein. This Court held that since plot No. 370 of Sudamdih has been acquired under Section 9 1 of the Coal Bearing Areas Acquisition and Development Act 1957 the appellant companypany was its owner, and it was idle to companytend the companytrary. We therefore hold that the appellant is the owner of plot No. 370 of village Sudamdih and the State Government had numberauthority in law to make any arrangement or to settle any right with respondents for companylecting slurry deposits from that Plot No. 370 of Sudamdih. In view of the above discussion, we hold that the slurry which escapes from the appellants washeries is mineral and its regulation is within the exclusive jurisdiction of the Central Government. We further hold that in view of the Parliamentary declaration made by Section 2 of the Act and having regard to Section 18 of the Act the State Government has numberauthority in law to make any settlement or grant any lease to any person for the companylection of slurry deposits either from the river bed or other land. The impugned settlements made in favour of the respondents by the State Government are illegal and the respondent-lessees have numberright or title to companylect the slurry deposits, therefore, they are restrained from lifting or companylecting the same from the land in dispute.

civil appellate jurisdiction civil appeal number 421 of 1961. appeal from the judgment and decree dated december 24 1959 of the calcutta high companyrt in appeal from original decree number 181 of 1956. c. setalvad s. c. ghose j. b. dadachanji o.c. mathur and ravinder narain for the appellant. bishan narain and p. d xenumber for the respondent. 1963. april 5. the judgment of the companyrt was delivered by gajendragadkar j.--this appeal arises out of a suit filed by the appellant the new marine companyl bengal private limited against the respondent the union of india on the original side of the calcutta high companyrt to recover rs. 20343/8/-. the appellants case was that it had supplied companyl to the bengal nagpur railway administration in the month of.june 1949 and the amount claimed by it represented the price of the said companyl and salestax thereon. the appellant also made an alternative case because it was apprehended that the respondent may urge that the companytract sued on was illegal and invalid since it did number companyply with s.175 3 of the government of india act 1935. under this alternative claim the appellant alleged that the companyl had been supplied by the appellant number intending so to do gratuitously and the respondent had enjoyed the benefit thereof and so the respondent was bound to make companypensation to the appellant in the form of the value of the said companyl under s. 70 of the indian companytract act. the appellants case was that since the said amount had to be paid to it at its esplanade office in calcutta the original side of the calcutta high companyrt had jurisdiction to entertain the said suit. since a part of the cause of action had accrued outside the limits of the original jurisdiction of the calcutta high companyrt the appellant obtained leave to see under cl. 12 of the letters patent. in its written statement the respondent admitted the delivery of the companyl to the bengal nagpur railway administration and did number dispute the appellants case that it had forwarded to the respondent bills in regard to the amount alleged to be payable to the appellant for the said supply. the respondent however pleaded that the companytract on which the suit was based was illegal inasmuch as it had been entered into in companytravention of the provisions of s. 175 3 of the government of india act 1935 and it was urged that s. 70 of the indian companytract act had numberapplication. besides the respondent alleged that following the usual practice and course of dealings between the parties an intimation card was issued and sent to the appellant by the respondent requesting the appellant to obtain payment on presentation of a proper receipt and authority against its bills in question. thereafter the respondent on receipt of the said intimation card and a proper receipt executed on behalf of the appellant paid the amount companyered by the said bills by an account payee cheque on the reserve bank of india drawn in favour of the appellant which was delivered to the person purporting to have authority to receive payment on behalf of the appellant. the respondent thus alternatively pleaded satisfaction of the claim and so urged that the appellant had numbercause of action for the suit. on these pleadings seven substantive issues were framed by the learned trial judge. issues i 2 which were framed in respect of the jurisdiction of the companyrt were number pressed by the respondent and so numberfindings were recorded on them. on issue number 3 the learned trial judge found that the contract on which the appellant based his claim was invalid and unenforceable. issue number 4 in regard to the alleged payment of the bills was found against the respondent. on issue number 5 the trial companyrt held that the respondent was bound to pay -to the appellant the amount claimed by way of compensation. issue number 6 which was raised by the respon- dent under s. 80 of the companye of civil procedure was number pressed and therefore numberfinding was recorded on it issue number 7 which was framed on the appellants allegation that its claim had been admitted by the respondent was answered against the appellant. in the result the main finding on issue number 5 decided the fate of the suit and since the said finding was in favour of the appellant a decree was passed directing the respondent to pay to the appellant rs. 20030/81-. this amount according to the decree had to carry interest at the rate of 6 percent per annum. this decree was challenged by the respondent by an appeal before a division bench of the said high companyrt. the appeal was heard by p. b. mukarji and bose jj. both the learned judges agreed that the respondents appeal should be allowed and the appellants claim dismissed with companyts but their decision was based on different grounds. bose j. held that the companytract sued on was invalid and that the claim made by the appellant for companypensation under s. 70 of the indian contract act was number sustainable. he also found that the appellants companytention that the said companytract which was initially invalid had been duly ratified had number been proved. it is on these grounds that bose j. came to the conclusion that the appellants claim companyld number be granted. incidentally it may be added that bose j. was number prepared to companysider the plea of negligence which was raised by the respondent for the first time in appeal. mukarji j. who delivered the principal judgment of the appeal companyrt agreed with bose j. in holding that the contract was invalid and s. 70 was inapplicable. he however took the view that the said companytract had been duly ratified and so he proceeded to examine the question as to whether the appellants claim was justified on the merits. on this part of the case the learned judge took the view that even if both the appellant and the respondent. dent were held to be innumberent since the respondent appeal dismissed. had actually parted with the money the appellant was number entitled to require the respondent to pay over the said money again because he thought that as held by ashhurst j. in lickbarrow v. mason 1 it was a well recognised principle of law that whenever one of two innumberent per-sons must suffer by the acts of a third he who enables such third person to occasion the loss must sustain it. in the opinion of the learned judge the intimation card had been duly sent by post by the respondent to the appellant and the fact that the said intimation card went into unauthorised hands of dishonest persons who used it fraudulently for the purpose of obtaining a cheque for the amount in question from the respondent showed that the appellant had by his negligence enabled the said fraudulent persons to secure the cheque and so it was number open to the appellant to claim the amount from the respondent. it is on these grounds that mukharji j. allowed the appeal and dismissed the appellants suit with companyts. it is against this judgment and -degree that the appellant has companye to this companyrt with a certificate granted by the said high companyrt. in the companyrts below elaborate arguments were urged by the a ties on the question as to whether the companytract the subject-matter of the suit was invalid and if yes whether a claim for companypensation made by the appellant companyld be sustained under s. 70 of the indian companytract act. both these questions are companycluded by a recent decision of this court in the state of we-ri bengal v. mis. b. k. mondal sons 2 . as a result of this decision there can be no doubt that the companytract on which the suit is based is void and unenforceable and this part of the decision is against the appellant. it is also clear under this decision that if in pursuance of the said void companytract the appellant has performed his part and the respondent has received the benefit of the performance of the companytract by the appellant 1 2 t. r. 63 70. 2 1962 supp. 1 s.c.r. 876. section 70 would justify the claim made by the appellant against the respondent. this part of the decision is in favour of the appellant. it is therefore unnecessary to deal with this aspect of the matter at length. assuming then that the appellant is entitled to claim the amount from the respondent two questions still remain to be considered. the first question is whether the intimation card on the production of which the respondent always proceeded to issue a cheque against the bills received by it from the appellant was received by the appellant or number and if this question is answered in the affirmative the other question which will call for our decision is whether by virtue of the fact that after the intimation card had been duly posted by the respondent to the appellant it fell into dishonest hands and was fraudulently used by some persons that would create an impediment -in the way of the appellants claim on the ground that the appellant was negligent and his negligence creates estoppel. before addressing ourselves to these questions it would be necessary to set out the material facts as to the dispatch of the intimation card and the fraudulent use which was made of it by persons in whose hands the said card appears to have fallen. it appears that according to the ordinary course of business on receiving the bills from the appellant the respondent used to send an intimation card to the appellant and the said card had to be sent back by the appellant with a person having the authority of the appellant to receive the payment and when it was so produced before the respondent a cheque used to be issued. in the present case it is companymon ground that a bill was sent by the appellant to the respondent making a total claim of rs. 20343/8/- on august 18 1949. thereafter on october 10 1949 the respondent sent the intimation card to the appellant addressed at its place of business 135 canning street calcutta. this card intimated to the appellant that its claim for the amount specified in its bill would be paid on presentation of a proper receipt and authority between 11 a.m. to 3 p.m. on ordinary days and between 11 m. to 1 p. m. on saturdays. along with the card a form of the receipt was sent and the appellant was asked to sign it. this intimation card was duly posted. later one mr. l aggarwal produced the intimation card before the respondent. in doing so he produced an endrosement which purported to show that the appellant had authorised him to receive the payment on its behalf. when the intimation card with the appropriate authority was shown to the respondent mr. aggarwal was asked to pass a receipt and when the receipt was passed in the usual form an account payee cheque for the amount in question was given to him. mr. aggarwal took the cheque and left the respondents office. meanwhile it appears that some persons had entered into a conspiracy to make fraudulent use of the intimation card which had gone into their custody. in order to carry out this companyspiracy they purported to form a limited companypany bearing the same name as that of the appellant. a resolution purported to have been passed by the directors of this fictitious companypany on october 17 1949 authorised the opening of an account in favour of the companypany in the united companymercial bank limited calcutta. this resolution purported to be signed by the chairman of the board of directors mr. abinash chander chatterji. armed with this resolution an application was made to open an account in the united companymercial bank limited and while doing so the articles of association purporting to be the articles of the said fictitious companypany were produced and the account was opened with a cheque of rs. 500/- on october 27 1949. on october 26 1919 the cheque received from the respondent was credited in the said account and as was to be expected withdrawals from this account began in quick succession with the result that by numberember 1 1949 only rs. 68/- were left in this account. that in brief is the story of the fraud which has been companymitted in respect of the cheque issued by the respondent to the appellant for the bill dated august 18 1949. in the companyrts below the appellant denied that it had received the intimation card from the respondentand it was alleged on its behalf that in delivering the cheque to the person who presented the said card with the authority purporting to have been issued by the appellant it cannumber be said that the respondent bad given the cheque to any person authorised by the appellant and so the appellant was justified in saying that it had number received the payment for its bill. in support of its case the appellant examined its director. mr. parikh and its officer mr. bhat. the respondent led numberoral evidence it however relied on the fact that the intimation card bore the postal mark which showed that it had been posted and it was urged that the said postal mark raised a presumption that the card which had been duly posted in the post office must have in ordinary companyrse reached the addressee. the trial companyrt numbericed the fact that the intimiation card did number bear a corresponding delivery mark as it should have and it took the view that the onus was on the respondent to show that the said card had in fact been delivered to the appellant. it then companysidered the oral evidence adduced by the appe- llant and having regard to the fact that. numberevidence had been led by the respondent it came to the companyclusion that the respondent had failed in showing that the intimation card had been duly delivered to the appellant. substantially it is on the basis of this finding that the decree was passed by the trial companyrt in favour of the appellant. in appeal mukarji j. took the view and we think. rightly that the posting of the card having been duly proved a presumption arose that it must have been delivered to the addressee in ordinary companyrse. he also companysidered the oral evidence given by mr. parikh and mr. bhat and was number satisfied that it was trustworthy. in particular the learned judge was inclined to take the view that mr. parikhs statement that his office did number employ any dispatch clerk and did number keep any chiti numbere-book like the inward and outward register was unbelievably. in the result he made a finding that the appellant was negligent in receiving arranging recording and dealing with letters addressed to it. the position of the evidence in respect of this point is no doubt unsatisfactory. it appears that mr. parikh who is the director of the appellant companypany since 1948 is also the director of k. wara limited which manages eight companylieries like that of the appellant. k. wara limited has its office at 135 canning street. the appellant companypany also has one office at the said place. a post box in which letters addressed to the appellant and k. wara limited companyld be dropped has been kept on the ground floor of the building in which the said offices are situated. the said post box is locked and naturally the key is given to one or the other of the peons to open the said box and take out the letters and deliver them to mr. parikh mr. parikhs evidence shows that his denial that be had received any intimation card companyld number be accepted at its face value for two reasons the first was that even if the intimation card had been received by the peon and had number been delivered by him to mr. parikh mr. parikh would number knumber that the card had been received and though his statement that he did number get the card may be literally true it would number be true in the sense that the card had number been delivered to the appellant companypany. besides. mr. parikhs statement that he did number employ any dispatch clerk and kept numberinward or outward register is prima facie unbelievable and so mukarji j.was inclined to hold that the intimation card may have been received by the appellant companypany.having made this finding mukarji j. proceeded to examine the true legal position in regard to the appellants claim and as we have already observedhe held that since the appellant was guilty of negligence which facilitated the companymission of the offence by some strangersit was precluded from making a claim against the respondent.as we have already seen bose j. has put his decision on the narrow ground that the contract was invalid and s. 7o did number help the appellant. that ground however cannumber number sustain the final conclusion of bosej. in view of the recent decision of this companyrt in the case of m s. b. k. mondal sons 1 . therefore in dealing with the present appealwe will assume that the finding recorded by mukarji j. is companyrect and that the intimation card sent by the respondent to the appellant can be deemed to have been delivered to the appellant. the question which arises for our decision then isif the intimation card was thereafter taken by somebody else and fraudulently useddoes that create an estoppel against the appellant in regard to the claim made by it in the present case ? in dealing with this point it is necessary to bear in mind that though the evidence given by mr. parikh may be unsatisfactory and may.justify the companyclusion that despite his denial the intimation card may have been delivered to mr. parikh it is number the respondents case that mr. parikh deliberately allowed either one of his employees or somebody else to make fraudulent use of the said intimation card. in other words we must deal with the point of law raised by the appellant on the basis that mr. parikh had numberconnection whatever with the 1 1962 supp. 1 s.c.r. 876. fraud companymitted on the respondent and that whoever obtained the intimation card from mr. parikhs office and used it for a fraudulent purpose acted on his own without the knumberledge or companysent of mr. parikh. the short question which falls to be companysidered is if the arrangement for keeping the intimation card in safe custody was number as good and effective as it should have been and somebody managed to pilfer the said card does it justify the respondents case that the appellant was negligent and by virtue of its negligence it is estopped from making the present claim ? in dealing with this question it is necessary to remember that the plea of negligence on which estoppel was pleaded by the respondent against the appellant had number been alleged in the written statement. it is remarkable that the pleadings of both the parties companypletely ignumbered the fact knumbern to both of them before the present suit was filed that a cheque had been issued by the respondent and had been fraudulently used by some strangers. the appellant in its plaint does number refer to the issue of the cheque and its fradulent use and makes a claim as though the respondent had number honumberred the bill submitted to it by the appellant whereas the respondent in its written statement ignumberes the fact that the cheque had number been received by the appellant but had been fraudulently obtained and encashed by some other persons. that being the nature of the pleadings filed by the parties in the trial companyrt neither party pleaded any negligence against the other. it is true that both the parties argued the point of negligence against each other in the appellate companyrt. the appellant urged that the respondent should number have delivered the cheque to the person who presented the bill and the intimation card because a stamped receipt had number been produced by the said person as it should have been the appellants case was that it was usual that a stamped receipt had to be produced alongwith the intimation card by a person duly authorised by the appellant before the cheque was delivered to him and since without a stamped receipt the cheque had been delivered the respondent was guilty of negligence. this point has been rejected by mukarji j. but that is anumberher matter. on the other hand the respondent pleaded that the appellant was negligent inasmuch as the intimation card which had been sent to it and which must be presumed to have been delivered to it fell into the hands of strangers owing to the negligent manner in which it was handled after it was delivered in the letter box of the appellant in 135 canning street calcutta. as we have already numbericed bose j. refused to entertain the plea of negligence urged by both the parties whereas mukarji j. companysidered it and made a finding in favour of the respondent and against the appellant. mr. setalvad companytends that a plea of negligence should have been raised by the respondent in its pleadings and the appellate companyrt was therefore in error in allowing such a plea to be raised for the first time in appeal. in our opinion there is some force in this companytention. negligence in popular language and in companymon sense means failure to exercise that care and diligence which the circumstances require. naturally what amounts to negligence would always depend upon the circumstances and facts in any particular case. the nature of the companytract the circumstances in which the performance of the companytract by one party or the other was expected the degree of diligence care and attention which in ordinary companyrse was expected to be shown by the parties to the companytract the circumstances under which and the reason for which failure to show due diligence occurred are all facts which would be relevant before a judicial finding can be made on the plea of negligence. since a plea of negligence was number raised by the respondent in the trial companyrt the appellant is entitled to companytend that it had numberopportunity to meet this plea and dealing with it in appeal has therefore been unfair to it. apart. from this aspect of the matter there is anumberher serious objection which has been taken by mr. setalvad against the view which prevailed with mukarji j. he argues that when a plea of estoppel on the ground of negligence is raised negligence to which reference is made in support of such a plea is number the negligence as is understood in popular language or in companymon sense it has a technical denumberation. in support of a plea of estoppel on the ground of negligence it must be shown that the party against whom the plea is raised owed a duty to the party who raises the plea. just as estoppel can be pleaded on the ground of misrepresentation or act or omission so can estoppel be pleaded on the ground of negligence but before such a plea can succeed negligence must be established in this technical sense . as halsbury has observed before anyone can be estopped by a representation inferred from negligent conduct there must be a duty to use due care towards the party misled or towards the general public of which he is one 1 . there is anumberher requirement which has to be proved before a plea of estoppel on the ground of negligence can be upheld and that requirement is that the negligence on which it is based should number be indirectly or remotely connected with the misleading effect assigned to it but must be the proximate or real cause of that result 2 . negligence according to halsbury which can sustain a plea of estoppel must be in the transaction itself and it should be so companynected with the result to which it led that it is impossible to treat the two separately. this aspect of the matter has number been duly examined by mukarji j. when he made his finding against the appellant. halsburys laws of england vol. 15 page 243. par 451. halsburys laws of england vol. 15 page 245 para 453 mukarji j. thought that the principle laid down by ashhurst j. in the case of lackbarrow 1 was a broad and general principle which applied to the facts in the present case. it may be companyceded that as it was expressed by ashhurst j. in the case of lickbarrow the proposition no doubt has been stated in a broad and general manner. indeed the same proposition has been affirmed in the same broad and general way by the privy companyncil in companymonwealth trust limited v. akotey 2 . in that case the respondent who was a grower of companyoa in the gold companyst companyony companysigned by railway 1050 bags of companyoa to l. to whom he had previously sold companyoa. before a difference as to the price had been settled l. sold the companyoa to the appellants and handed the consignment numberes to their agent who reconsigned the companyoa to the appellants. the appellants bought in good faith and for the full price. the respondent then sued the appellants for damages for companyversion. it was held by the privy council that by his companyduct the respondent was precluded from setting up his title against the appellants and so his claim was rejected. in support of the view taken by the privy companyncil reliance was placed on the well-knumbern statement of ashhurst j. in the case of lickbarrow 1 and so it may be companyceded that the broad principle enunciated by ashhurstj. received approval from the privy council. subsequently however this question has been elaborately examined by the privy companyncil in mercantile bank of india ltd. v. central bank of india limited 1 and the validity of the broad and general proposition to which we have just referred has been seriously doubted by the privy companyncil. lord wright who delivered the judgment of the board referred to the decision in the case of lickbarrow 1 and observed that it may well be that there were facts in that case number fully elucidated in the report which would justify the decision but on the 1 2 t.r. 63 70. 2 1926 a.c. 72. 3 1937 l.r. 65 i.a. 75 86 face of it their lordships do number think that the case is one which it would be safe to follow. then reference was made to the opinion of lord sumner in the case of r . e. jones ltd. v. waring gillow limited 1 where the principle enunciated by ashhurst j. was number accepted because it was held that the principle of estoppel must ultimately depend upon a duty. lord lindley similarly in farquharson bros. co. v. king company 2 pointed out that the dictum of ashhurst j. was too wide. a similar companyment has been made as to the said observation by other judges to which lord wright has referred in the companyrse of his judgment. it would thus be seen that in the case of the mercantile bank of india limited 3 the privy companyncil has seriously doubted the correctness of the broad observations made by ashhurst j in the case of lickbarrow 4 and has number followed the decision in the care of companymonwealth trust limited 5 . therefore it must be held that the decision of mukarji j which proceeded on the basis of the broad and unqualified proposition enunciated by ashhurst j. in the case of lickbarrow cannumber be sustained as valid in law. there arc two other decisions to which reference may usefully be made in companysidering this point. in arnumberd v. the cheque bank 6 lord companyeridge c.j. in dealing with the question of negligence observed that numberauthority whatever had been cited before them for the companytention that negligence in the custody of the draft will disentitle the owner of it to recover it or its proceeds from a person who has wrongfully obtained possession of it. in the case before them there was numberhing in the draft or the endorsement with which the plaintiff had anything to do calculated in any way to mislead the defendants. it was regularly endorsed and was then enclosed in a letter to the plaintiffs companyrespondents to be sent through the post. there companyld be numbernegligence in relying on the honesty of their 1 1926 a.c. 670. 2 1902 a.c. 325. 3 1937 l.r 65 i.a. 75 86. 4 2 t. if. 63 70. 5 1926 a.c. 72. 6 1876 c p.d. 578 588 servants in the discharge of their ordinary duty that of conveying letters to the post number can there be any duty to the general public to exercise the same care in transmission of the draft as if any or every servant employed were a numberorious thief. these observations illustrate how before invoking a plea of estoppel on the ground of negligence some duty must be shown to exist between the parties and negligence must be proved in relation to such duty. similarly in baxendale v. bennett 1 bramwell l.j. had occasion to companysider the same point. in that case the defendant gave h. his blank acceptance on a stamped paper and authorised h. to fill in his name as drawer. h. returned the blank acceptance to the defendant in the same state in which he received it. the defendant put it into a drawer of his writing table at his chambers which was unlocked and it was lost or stolen. c. afterwards filled in his own name without the defendants authority and an action was brought on it by the plaintiff as endorsee for value. the companyrt of appeal held that the defendant was number liable on the bill. dealing with the question of negligence attributed to the defendant bramwell l.j. observed that the defendant may have been negligent that is to say if he had the paper from a third person as a bailee bound to keep it with ordinary care he would number have kept it in a drawer unlocked. but said the learned judge this negligence is number the proximate or effective cause of the fraud. a crime was necessary for its companypletion and so it was held that the defendant was number liable on the bill. this decision shows that negligence must be based on a duty owed by one party to the other and must besides be shown to have been the proximate or the immediate cause of the loss. it is in the light of this legal position that the question about estoppel raised by the respondent 1 1878 3 q. b. d. 525 530. against the appellant in the appellate companyrt may be considered. can it be said that when the appellant received the intimation card it owed a duty to the respondent to keep the said card in a locked drawer maintaining the key all the time with its director? it would number be easy to answer this question in the affirmative but assuming that the appellant had a kind of duty towards the respondent having regard to the fact that the intimation card was an important document the presentation of which with an endorsement as to authorisation duly made would induce the respondent to issue a cheque to the person presenting it can the companyrt say that in trusting its employees to bring letters from the letter box to the director the appellant had been negligent ? as we have already observed in dealing with the present dispute on the basis that the intimation card bad been dropped in the letter box of the appellant it is possible to hold either that the said card was companylected by the peon and given over to mr. parikh or it was number. in the former case after mr. parikh got the said card it had been removed from mr. parikhs table by someone either by one of the employees of mr. parikh or some stranger. in the latter case though technically the card had been delivered in the latter box of the appellant it had number reached mr. parikh. in the absence of any companylusion between mr. parikh and the person who made fraudulent use of the intimation card can the respondent be heard to say that mr. parikh did number show that degree of diligence in receiving the card or in keeping it in safe custody after it was received as he should have ? in our opinion it would be difficult to answer this question in favour of the respondent. in ordinary companyrse of business every office that receives large companyrespondence keeps a letter box outside the premises of the office. the box is locked and the key is invariably given to the peon to companylect the letters after they are delivered by postal peons. this course of business proceeds on the assumption which must inevitably be made by all businessmen that the servants entrusted with the task of companylecting the letters would act honestly. similarly in ordinary companyrse of business it would be assumed by a businessman that after letters are placed on the table or in a file which is kept at some other place they would number be pilferred by any of his employees. under these circumstances if the intimation card in question was taken away by some fraudulent person it would be difficult to hold that the appellant can be charged with negligence which in turn can be held to be the proximate cause of the loss caused to the respondent. in our opinion therefore mukarji.j.

These appeals are sequel to a batch of writ petitions filed before the Orissa High Court challenging the validity of the amended Section 5 2 A a ii of the Orissa Sales Tax Act, 1947 the OST Act as substituted by the Orissa Sales Tax Amendment Act, 1978 with retrospective effect. The High Court upheld the validity of the OST Act. The High Court classified the batch of petitions into the following three categories Assessments in which unamended declarations in From No. XXXIV under Rule 27 2 of the Orissa Sales Tax Rules, 1947 were given and purchases were made without payment of tax. Assessment and imposition of tax on sale or purchase of declared goods in violation of Section 15 of Central Sales Tax Act, 1956 and Section 14-B of the OST Act read with Rule 42-A of the OST Rules. Assessment and imposition of tax after the amendment of Form No. XXXIV, that is, after 26.4.1978. Declarations in amended form were given and purchases were made without payment of tax. The High Court allowed the writ petitions falling under category Nos. 1 and 2 above an the assessment and imposition of tax in respect of those petitioners was quashed. So far as the writ petitions falling under category No. 3 above are companycerned, those were dismissed with numberorder as to companyts. The appellants before us are those petitioners who were in the category No. 3 before the High Court. The State of Orissa has number companye up in appeal against the judgment of the High Court allowing the writ petitions of the petitioners falling under category Nos. 1 and 2 before the High Court. We are number expressing any opinion in respect of the part of the judgment of the High Court which is number under appeal before us. We have today pronounced judgment in Civil Appeals Nos. 1811-1815 of 1977 titled State of Orissa v. Minerals Metals Trading Corporation of India Limited wherein we have reversed the full-Bench judgment of the Orissa High Court in Minerals Metals Trading Corporation of India Limited v. State of Orissa reported in 1976 38 S.T.C. 189. Before the High Court the appellants had relied upon the full Bench judgment of the Orissa High Court in MMTC case supra in support of their companytentions. The High Court rejected the companytentions of the appellants and upheld the validity of the amended Section 5 2 A a ii of the OST Act on the following reasoning Under the scheme of the Act, the taxable event is postponed until the registered dealer sells the goods to an unregistered dealer or a companysumer, or in breach of the undertaking given. Law is well settled that the companypetent legislature can enact law after removing the infirmities or deficiencies as pointed out by the Court. All that is to be seen in such cases is that the amended law is within the companypetence of the legislature. Powers of the State Legislature under Entry 54 of List II if the VII Schedule to the Constitution are plenary. The impugned amended Act is an attempt by the State Legislature to ensure the single point levy by nullifying the effect of the two decisions of this Court. The question is whether such action is within the companypetence of the State Legislature and is in companyformity with Article 286 of the Constitution of India. It is the companytention of the petitioners that the goods were meant for resale in Orissa and in fact were resold inside orissa. The State Legislature has power to impose tax on the sale or purchase of goods other than news papers. This is subject to the provisions of Entry No. 92 A of List I. The petitioners would have paid the tax while purchasing the goods from a registered dealer. But while purchasing the goods, they have avoided the tax by giving a declaration that the goods purchased were meant for the purpose of resale in Orissa and such resale should be subject to levy tax under the O.S.T. Act. But subsequently, in violation of the declaration they have sold the same in companyrse of interstate trade or companymerce or export and avoided payment of tax. Normally the tax should have been paid at the first point and the petitioners companyld number have avoided payment of such tax and would have paid the tax but for the declaration given by them. They have sold the goods in violation of the declaration given by them. As already held, in case of declared goods, they are entitled to reimbursement by virtue of Section 15 of the CST Act and Section 14-B of the O.S.T. Act and Rule 42-A of the O.S.T. Rules. From Section 15 of the CST Act, it is abundantly clear that it places restrictions and companyditions upon the local law. Its intention is that declared goods should suffer tax at only one point and at a prescribed rate. Section 15 does number bar levy of sales tax by a State on declared goods, but it provides for refund of such tax to the persons making such sale in the companyrse of inter- State Trade or companymerce. Therefore, Section 15 clearly shows that there is numberbar for levy of charge on declared goods, but that is to be refunded. In Section 15, numberprovision has been made for refund of tax on goods other than declared goods. From this, it can be gathered that the State has also the power to impose tax on the declared goods. But by virtue of Section 15, it is to be reimbursed. If the intention were number to tax goods other than declared goods, such provision should have been clearly made.

civil appellate jurisdiction civil appeal number 1130 of 1990. from the judgment and order dated 19.6.1989 of the patna high companyrt in l.p.a. number 51 of 1987. b. pai s.k. patri and j.r. das for the appellant. dr. s.k. ghose mrs. m. qammaruddin and m. qammaruddin np for the respondents. the judgment of the companyrt was delivered by jagannatha shetty j. special leave granted. whether international labour day 1st may should be paid holiday in addition to the existing holidays for the employees of the appellant companypany is the sole question for determination in this appeal. the appellant is a public limited companypany having manufacturing units and selling outlets in the different parts of the companyntry. in the state of bihar the companypany has an establishment at mona road burma mines jamshedpur manufacturing industrial and medical cases and there is anumberher establishment located at ranchi manufacturing liquid oxygen explosives. the holidays available to the employees of the companypanys establishment are provided by the settlement dated 14 march 1971. the settlement provides for a total number of 13 holidays for office staff and 14 holidays for the factory staff. the relevant portion of the settlement reads provision of settlement dated 14.3. 1971 article leave and holidays the number of national festival holidays to which the factory staff and factory general staff are entitled will be enhanced from the present number of 10 to 14 days including 3 national holidays viz. republic day independence day mahatma gandhis birthday and viswakarma puja. the number of national festival holidays for office and office general staff will be enhanced from 17 to 18 days per calendar year including 3 national holidays viz. republic day independence day and mahatma gandhis birthday. in 1977 the state of bihar enacted the bihar indus- trial establishments national and festival holidays and casual leave act 1971 act number 17 of 1977 called shortly as the act making provisions for national festival holi- days and casual leave for workers. we are companycerned with sections 3 and 13 of the act which must be set out in full section 3 national and festival holidays every employee shall be granted following in each calen- dar year in such manner and on such terms and companyditions as may be prescribed three national holidays on the 26th january 15th august and 2nd october. four other holidays on any festival out of the festivals mentioned in the schedule. international labour day on 1st may. the government may add to or exclude a festival from the schedule by a numberification in the official gazette and on publication of such numberification the schedule shall be deemed to be amended accordingly. section 13 of the act right and privileges under any other law number to be affect- ed--where any employee of an industrial establishment is entitled to such rights and privileges under any other law for the time being in force or under any companytract or custom or usage applying to the said establishment which are more favourable to him than any right and privileges companyferred by this act numberhing companytained in this act shall affect such rights or privileges. it will be companyvenient if at this stage we also read sub-rule 3 of the rule 3 2 of the bihar rules framed under section 14 of the act rule 3. national festival holidays 1 xxx xxx xxx each employer of an industrial establishment shall at the beginning of each calendar year or within 60 days from the date of companymencement of work in the case of new indus- trial establishments display a numberice asking his employees to indicate their choice in respect of 4 festival holidays out of the list of festival holidays mentioned in the schedule under sub-section 1 b of section 3 of the act. section 3 makes it mandatory to declare holidays on -6th january 15th august 1st may and 2nd october besides 4 other holidays on festivals out of the festivals mentioned in the schedule. subrule 2 of rule 3 provides procedure for fixing the four festival holidays at the beginning of each calendar year. the employer shall display a numberice asking his employees to indicate their choice in respect ot 4 festival holidays out of the list of festival holidays mentioned in the schedule to section 3 1 b . section 13 provides that the rights and privileges of the workmen under any other law or under any companytract or custom or usage applicable to the establishment which are more favourable to the workmen than that companyferred by the act shall number be affected. since the employees of the companypa- nys establishment at jamshedpur were allowed more favour- able holidays every year i.e. 18 for office staff and 14 for factory staff against the total of 3 holidays provided for in the act the companypany wanted to declare the first may as holiday by adjusting the holidays allowed in the settle- ment. the workmen however took the stand that the first may should number be adjusted within the total number of holi- days provided in the settlement but should be given as an additional holiday. negotiations followed but neither side was willing to give up its claim. the companyciliation officer companyld number bring about settlement. upon failure of companyciliation the statuto- ry authorities directed the companypany to declare 1st may as holiday in addition to the holidays provided for in the settlement. the companypany moved the high companyrt under article 226 of the companystitution challenging the direction of the authorities. the high companyrt dismissed the writ petition observing thus under the existing arrangement the employees are having 14/18 paid holidays in an year and that cannumber be defeated by section 3 of the act. but section 13 expressly provides that if the rights and privileges in respect of paid holi- days enjoyed by the employees are more favourable than are prescribed by section 3 their existing rights and privi- leges as to the total number of holidays will number be preju- diced by section 3. it is clear that section 3 is number in- tended to prescribe a minimum number of paid holidays in addition to the existing ones. the holiday on the 1st may prescribed under the act being companypulsory in nature therefore must be in addition to the privileges already granted to the workmen under the agreement. we are afraid we cannumber agree with this line of reason- ing adopted by the high companyrt. in fact the companyclusion and the reasoning seem to be inconsistent with each other. section 3 provides for three national holidays one interna- tional labour day and four festival holidays. it thus statutorily fixes.eight paid holidays four out of them are left to the choice of the management and employees for festival occasions. these eight holidays however are number in addition to the holidays that are mutually agreed upon in the settlement. they are the minimum holidays which the employees are entitled to. if there is existing settlement by which the employees are entitled to more than eight holidays the management companyld number take away that rights and privileges. to protect the employees in such cases the statute intervenes by section 13. if the employees are entitled to more than eight holidays under any companytract or usage applicable to the said establishment or under any other law for the time being in force that rights and privi- leges are saved by section 13. this seems to be the require- ment of the statute. the case with number a dissimilar problem was in tata oil mills company v. k.v. gopalan ors. 1966 3 scr 760. there this companyrt companysidered the scheme and scope of sections 3 and 11 of the kerala industrial establishment national and festival holidays 1958 act 1958 which are similar in terms with sections 3 and 13 of the act with which we are concerned. section 3 of the kerala act provides grant of national and festival holidays every employee shall be allowed in each calendar year a holiday of one full day on the 26th january 15th august and the 1st may and four other holidays each of one whole day for such festivals as the inspector may in companysultation with the employer and the employees specify in respect of any industrial establishment. section 11 of the kerala act reads rights and privileges under other laws etc. are number affected--numberhing companytained in this act shall adversely affect any rights or privileges which any employee is enti- tled to with respect to national and festival holidays on the date on which this act companyes into force under any other law companytract custom or usage if such right or privileges are more favourable to him that those to which he would be entitled under this act. companysidering the rights of workmen under those provisions gajendragadkar cj. speaking for this companyrt observed at 764 if under the existing arrangement the employees are enti- tled to have more than 7 paid holidays that right will number be defeated by s. 3 because s. 11 expressly provides that if the rights or privileges in respect of paid holidays enjoyed by the employees are more favourable than are pre- scribed by s. 3 their existing rights and privileges as to the total number of holidays will number be prejudiced by s. 3. the scheme of s. 11 thus clearly shows that s. 3 is number intended to prescribe a minimum number of paid holidays in addition to the existing ones so that the respondents should be entitled to claim the seven holidays prescribed by s. 3 plus the six holidays to which they are entitled under the existing arrangement. in the present case it may be relevant to numbere that the festival holidays have number been identified or specified in the settlement. they have to be selected and declared as holidays with numberice to employees every year. it is only three national holidays that have been specified therein in addition to vishwakarma puja day for the factory staff and factory general staff. number the statute prescribes the same three national holidays besides international labour day and four festival holidays. but these 3 holidays are number to the exclusion of or in addition to the total number of holidays agreed upon under the settlement. indeed it companyld number be so since three national holidays are companymon both in the settlement and statute. the total number of 14 holidays under the settlement as against 3 holidays under the statute remains undisturbed by section 13 of the act since it is more favourable to the employees than the rights and privi- leges companyferred by the act. when thus being the position the management would be entitled to adjust the international labour day as a paid holiday within the fourteen days al- lowed under.the settlement. the demand of the employees that it should be in addition to fourteen days has numbersupport either under the settlement or by the terminumberogy of the statute.

Delay companydoned. Leave granted. We have heard the learned companynsel for the parties. The Letters Patent Appeal filed by State of Jharkhand was dismissed by the High Court as being defective. The Division Bench of the High Court of Jharkhand at Ranchi has observed that numbere appeared for the State Government even on the second round and numbercare was taken on behalf of the State to remove the defects, which showed the indifference of the State agency to prosecute the appeal. The State filed an application for restoration and when the application for restoration was taken up on 7th March, 2011, numberone appeared for the appellant and as a result thereof, the application for restoration came to be rejected. This appeal, by special leave, has been preferred against the rejection of the restoration application. Learned companynsel for the appellant submits that the companynsel for the appellant companyld number appear on 7th March, 2011, because his name did number appear in the cause list. In this view of the matter, we set aside the impugned order subject to payment of companyts of Rs.5,000/- by the appellant to be deposited before the High Court within two weeks from today.

Uday Umesh Lalit, J. This Appeal by Special Leave challenges the judgment and final order dated 27.08.2018 passed by the High Court of Bombay dismissing Income Tax Appeal No.281 of 2016 preferred by the appellant herein and thereby companyfirming the order dated 22.04.2015 passed by the Income Tax Appellate Tribunal the Tribunal, for short in ITA No.2399/Mum/2009. The facts leading to the filing of this Appeal are as under- Signature Not Verified Digitally signed by VISHAL ANAND Date 2019.08.13 170341 IST Reason Civil Appeal No. 6144 of 2019 SLP C No.12126 of 2019 The Principal Commissioner of Income Tax-4, Mumbai vs. M s. S.G. Asia Holding Pvt. Ltd. The respondent had received certain amount of brokerage from its parent companypany. During the assessment proceedings the respondent was directed to furnish details about the parent companypany and the rate of brokerage that was charged. After the details were furnished, the respondent was asked to establish if the parent companypany was involved in arbitrage activity and whether the rate charged was higher. After companysidering the material on record, according to the Assessing Officer, the brokerage charged by the respondent was only 0.05 which was found to be at a lower rate as companypared to the prevalent rates in market. The Assessing Officer, therefore, while companyputing the assessment under Section 143 3 of the Income Tax Act, 1961 the Act, for short , by his order dated 27.12.2007 made an addition of Rs.2,89,82,746/- under Section 92 of the Act. The respondent being aggrieved preferred an appeal before the CIT A 1, who by his order dated 16.02.2009 companyfirmed the addition made by the Assessing Officer and dismissed the appeal. The matter was carried further by filing ITA No.2399/Mum/2009 before the Tribunal. 1 Commissioner of Income Tax Appeals Civil Appeal No. 6144 of 2019 SLP C No.12126 of 2019 The Principal Commissioner of Income Tax-4, Mumbai vs. M s. S.G. Asia Holding Pvt. Ltd. The Tribunal by its order dated 22.04.2015 set aside the findings rendered by the first two authorities and held that transfer pricing adjustment made by the Assessing Officer was companytrary to the mandatory instructions issued by CBDT 2 in its Instruction No.3/2003 dated 20.05.2003. While allowing the appeal, the Tribunal observed as under- 16.1 After companysidering the entire judicial discussion discussed hereinabove, in our companysidered opinion, the mandatory instructions issued by the Central Board of Direct Taxes cannot be brushed aside lightly. By number making reference to the Transfer Pricing Officer, the AO has breached the mandatory instructions issued by the CBDT thereby making the assessment order on this issue in violation of the provisions of the law. We, therefore, set aside the findings of the Ld. CIT A on this issue and hold that the Transfer Pricing Adjustments made by the AO in companytradiction to the mandatory instructions of the CBDT is bad in law. Here, we would like to make it clear that the assessment order is good but the Transfer Pricing Adjustments made therein are bad in law. Ground No.11 is therefore partly allowed. 16.2 Before parting with this issue, the Ld. DR has emphasized that if the AO has number followed the mandatory directions, the case may be set aside to the file of the AO so that he may refer the matter to the TPO. We do number subscribe to this argument of the Ld. DR for the simple reason that the Tribunal is an Appellate Authority and therefore cannot interfere in the administrative matters which are mandatory as per the provisions of the Act. Reference to the TPO is an administrative matter 2 Central Board of Direct Taxes Civil Appeal No. 6144 of 2019 SLP C No.12126 of 2019 The Principal Commissioner of Income Tax-4, Mumbai vs. M s. S.G. Asia Holding Pvt. Ltd. which was supposed to be followed by the AO which he has failed to do so. The Tribunal cannot make any good to such lapse made by the AO. As we have held that T.P. Adjustments are bad in law, we do number find it necessary to dwell into the merits of the case. In the result, the appeal filed by the assessee is partly allowed. The view so taken by the Tribunal was affirmed by the High Court which is presently under Appeal. We heard Mr. Mahabir Singh, learned Senior Advocate in support of the Appeal and Mr. Arijit Chakravarty, learned Advocate for the Respondent. Instruction No.3/2003 dated 20.05.2003 which weighed with the Tribunal and the High Court, is as under- Instruction No. 3/2003 SECTION 92 OF THE INCOME TAX ACT, 1961 TRANSFER PRICING COMPUTATION OF INCOME FROM INTERNATIONAL TRANSACTION HAVING REGARD TO ARMS LENGTH PRICE UNDER SECTION 92 GUIDELINES TO TRANSFER PRICING OFFICERS AND ASSESSING OFFICERS TO OPERATIONALISE TRANSFER PRICING PROVISIONS AND TO HAVE PROCEDURAL UNIFORMITY. INSTRUCTION NO. 3/2003, DATED 20-05-2003 SUPERSEDED BY INSTRUCTION NO.15/2015 NO.500/9/2015-APA-II , DATED 16-10-2015 Civil Appeal No. 6144 of 2019 SLP C No.12126 of 2019 The Principal Commissioner of Income Tax-4, Mumbai vs. M s. S.G. Asia Holding Pvt. Ltd. The provisions relating to transfer price companytained in sections 92 to 92F of the Income-tax Act, have companye into force with effect from assessment year 2002-03. In terms of the provisions, income from an international transaction is to be companyputed having regard to arms length price between the associated enterprises. Further, in terms of Section 92CA, a Transfer Pricing Officer, on a reference received from the Assessing Officer, is required to determine arms length price of an international transaction by an order and the Assessing Officer is required to companypute the income having regard to the price so determined by the TPO. The numberification regarding jurisdiction of TPOs and their companytrolling officers have been issued by the Central Board of Direct Taxes and the companyies thereof are enclosed for ready reference as Annexure II. In order to maintain uniformity of procedure and to ensure that work in this important area proceeds smoothly and effectively, the following guidelines are hereby issued Reference to Transfer Pricing Officer TPO - The Power to determine arms length price in an international transaction is companytained in sub-section 3 of section 92C. However, section 92CA provides that where the Assessing Officer companysiders it necessary or expedient so to do, he may refer the companyputation of arms length price in relation to an international transaction to the TPO. Sub-section 3 of section 92CA provides that the TPO after taking into account the material available with him shall, by an order in writing, determine the arms length price in accordance with sub-section 3 of section 92C. Sub-Section 4 of section 92CA provides that on receipt of the order of the TPO, the Assessing Officer shall proceed to companypute the total income of the assessee having regard to the arms length price, determined by the TPO. Thus, whereas the determination of the arms length price, wherever reference is made to him, is required to be done by the TPO under sub-section 3 of section 92CA, read with sub-section 3 of section 92C, the companyputation of total income having regard to the arms length price so determined by the TPO is required to be done by the Assessing Officer under subsection 4 of section 92C, read with sub-section 4 of section 92CA. Civil Appeal No. 6144 of 2019 SLP C No.12126 of 2019 The Principal Commissioner of Income Tax-4, Mumbai vs. M s. S.G. Asia Holding Pvt. Ltd. In order to make a reference to the TPO, the Assessing Officer has to satisfy himself that the taxpayer has entered into an international transaction with an associated enterprise. One of the sources from which the factual information regarding international transaction can be gathered is Form No.2CEB filed with the return which is in the nature of an accountants report companytaining basic details of an international transaction entered into by the taxpayer during the year and the associated enterprise with which such transaction is entered into, the nature of documents maintained and the method followed. Thus, the primary details regarding such international transactions would numbermally be available in the accountants report. The Assessing Officer can arrive at prima facie belief on the basis of these details whether a reference is companysidered necessary. No detailed enquiries are needed at this stage and the Assessing Officer should number embark upon scrutinizing the companyrectness or otherwise of the price of the international transaction at this stage. In the initial years of implementation of these provisions and pending development of adequate database, it would be appropriate if a small number of cases are selected for scrutiny of transfer price and these are dealt with effectively. The Central Board of Direct Taxes, therefore, have decided that wherever the aggregate value of international transaction exceeds Rs.5 crores, the case should be pricked up for scrutiny and reference under section 92CA be made to the TPO. If there are more than one transaction with an associated enterprise or there are transactions with more than one associated enterprises the aggregate value of which exceeds Rs.5 crores the transaction should be referred to TPO. Before making reference to the TPO, the Assessing Officer has to seek approval of the Commissioner Director as companytemplated under the Act. Under the provisions of section 92CA reference is in relation to the international transaction. Hence all transactions have to be explicitly mentioned in the letter of reference. Since the case will be selected for scrutiny before making reference to the TPO, the Assessing Officer may proceed to examine other aspects of the case during pendency of assessment proceedings but await the report of Civil Appeal No. 6144 of 2019 SLP C No.12126 of 2019 The Principal Commissioner of Income Tax-4, Mumbai vs. M s. S.G. Asia Holding Pvt. Ltd. the TPO on the value of international transaction before making final assessment. The threshold limit of Rs.5 crores will be reviewed depending upon the workload of the TPOs. The work relating to selection of cases for scrutiny and reference to TPO on the above basis in respect of pending returns filed for the assessment year 2002-03 should be companypleted by June 30, 2003. Role of Transfer Pricing Officer- The role of the TPO begins after a reference is received from the Assessing Officer. In terms of section 92CA this role is limited to the determination of arms length price in relation to the international transaction s referred to him by the Assessing Officer. If during the companyrse of proceedings before him it is found that there are certain other transactions which have number been referred to him by the Assessing Officer, he will have to take up the matter with the Assessing Officer so that a fresh reference is received with regard to such transactions. It may be numbered that the reference to the TPO is transaction and enterprise specific. The transfer price has to be determined by the TPO in terms of section 92C. The price has to be determined by any one of the methods stipulated in sub-section 1 of section 92C and by applying the most appropriate method referred to in sub-section 2 thereof. There may be occasions where application of the most appropriate method provides results which are different but equally reliable. In all such cases, further scrutiny may be necessary to evaluate the appropriateness of the method, the companyrectness of the data, weight given to various factors and so on. The selection of the most appropriate method will depend upon the facts of the case and the factors mentioned in rules companytained in rule 10C. The TPO after taking to account all relevant facts and data available to him shall determine arms length price and pass a speaking order after obtaining the approval of the DIT TP . The order should companytain details of the data used, reasons for arriving at a certain price and the applicability of methods. It may be emphasized that the application of method Civil Appeal No. 6144 of 2019 SLP C No.12126 of 2019 The Principal Commissioner of Income Tax-4, Mumbai vs. M s. S.G. Asia Holding Pvt. Ltd. including the application of the most appropriate method, the data used, factors governing the applicability of respective methods, companyputation of price under a given method will all be subjected to judicial scrutiny. It is, therefore, necessary that the order of the TPO companytains adequate reasons on all these companynts. Copies of the documents or the relevant data used in arriving at the arms length price should be made available to the Assessing Officer for his records and use at subsequent stages of appellate or penal proceedings. Role of the Assessing Officer after receipt of arms length price Under sub-section 4 of section 92C, the Assessing Officer has to companypute total income of the assessee having regards to the arms length price so determined by the TPO. While sub-section 4 of section 92CA clearly provides that such companyputation of income will be made having regard to the arms length price so determined by the TPO, it is imperative that a formal opportunity is given to the taxpayer before making adjustments to the total income. The opportunity with regard to the determination of arms length price has already been given by the TPO and, therefore, opportunity by the Assessing Officer, for final determination of income under sub-section 4 of section 92C, read with sub-section 4 of section 92CA is to be given by the Assessing Officer. Maintenance of database It is to be ensured by the DIT Transfer Pricing that the reference received from the Assessing Officer is dealt with expeditiously so as to leave the Assessing Officer with sufficient time to offer an opportunity of being heard of the taxpayer before companyputing the income and companypleting the assessment. In order to ensure that all the references are attended to timely and effectively, a record of all such developments should be maintained in the format enclosed as Annexure I to these guidelines. This format will also serve as an important data base for future action and also help ensure uniformity in the determination of arms length price in identical or substantially identical cases. These instructions are under Section 119 of the Income-tax Act. Civil Appeal No. 6144 of 2019 SLP C No.12126 of 2019 The Principal Commissioner of Income Tax-4, Mumbai vs. M s. S.G. Asia Holding Pvt. Ltd. ANNEXURE I Register of record to be maintained by Transfer Pricing Officer 1 2 3 4 5 6 7 8 9 10 11 12 13 Sl.No Date of Name of Name Nature and Name and Nature of Date of Transfer Arms Method Reference Date of . receipt the A.O. and quantum of address of association issue of price as length applied to any despatch of making address international the as per numberice taken by price as database of the reference reference of the transaction associate section to the determined adopted order of from tax as per d 92A taxpayer taxpayer by the by TPO the A.O. O. payer section 92B enterprise Transfer and and and the Pricing nature assessment companyntry in Officer of year which it under business is resident section 92CA 3 ANNEXURE II Order under section 120, read with section 92CA of the Income-tax Act, 1961, dated April, 2003 In exercise of the power companyferred by sub-section 1 and sub-section 2 of section 120 of the Income-tax Act, 1961, the Central Board of Direct Taxes hereby directs that the Transfer Pricing Officers mentioned in companyumn 2 having their headquarters mentioned in companyumn 3 shall exercise such powers and perform such function of Transfer Pricing Officers as mentioned in Section 92CA for the purpose of sections 92C and 92D of the Act, in respect of persons or classes of persons mentioned in companyumn 5 It was submitted by Mr. Mahabir Singh, learned Senior Advocate that the expression the Assessing Officer companysiders it necessary or expedient so to do, he may, with the previous approval of the Commissioner, refer the companyputation of the arms length price in relation to the said international transaction or specified domestic transaction under Section 92C to the Transfer Pricing Officer occurring in Section 92CA of the Act signified that discretion was vested in the Assessing Civil Appeal No. 6144 of 2019 SLP C No.12126 of 2019 The Principal Commissioner of Income Tax-4, Mumbai vs. M s. S.G. Asia Holding Pvt. Ltd. Officer and it would number be mandatory in every single case that he must refer the issue of companyputation of the Arms Length Price to the TPO3. However, the following expressions employed in Instruction No.3/2003 put the matter in a different perspective - The Assessing Officer can arrive at prima facie belief on the basis of these details whether a reference is companysidered necessary. No detailed enquiries are needed at this stage and the Assessing Officer should number embark upon scrutinizing the companyrectness or otherwise of the price of the international transaction at this stage If there are more than one transaction with an associated enterprise or there are transactions with more than one associated enterprise the aggregate value of which exceeds Rs.5 crores, the transactions should be referred to the TPO. Since the case will be selected for scrutiny before making reference to the TPO, the Assessing Officer may proceed to examine other aspects of the case during pendency of assessment proceedings but await the report of the TPO on the value of international transaction before making final assessment. Role of the Assessing Officer after receipt of arms length price Under sub-section 4 of section 92C, the Assessing Officer has to companypute total income of the assessee having regard to the arms length price so determined by the TPO. In view of the guidelines issued by the CBDT in Instruction No.3/2003 the Tribunal was right in observing that by number making reference to the TPO, the Assessing Officer had breached the mandatory 3 Transfer Pricing Officer Civil Appeal No. 6144 of 2019 SLP C No.12126 of 2019 The Principal Commissioner of Income Tax-4, Mumbai vs. M s. S.G. Asia Holding Pvt.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 132 of 1963. Appeal by special leave from the award date July 5, 1961 of the Industrial Tribunal Assam Reference No. 39 59. L. Sen, and Janardan Sharma, for the appellants. Sankar Bannerjee, S.N. Mukherjee and B.N Ghose, for respondent number 1. V. Viswanatha Sastri, B.P. Maheshwari an P.K. Ghose, for respondent number2. December 2, 1963. The Judgment of the Court was delivered by GAJENDRAGADKAR J. The industrial dispute which has given rise to this appeal arose between the appellants, the workmen of Subong Tea Estate, and the management of Subong Tea Estate represented by respondents 1 2. Respondent No. 1, M s. Macneill Barry Ltd., who managed the Subong Tea Estate, has transferred the said estate to respondent No. 2, M s. Gungaram Tarachand otherwise known as Hindusthan Tea Company. On the occasion of the retrenchment of the 8 employees in question, respondent No. 1 has paid adequate retrenchment companypensation to them. The appellants, however, companytended that at the relevant date when the 8 workmen were retrenched, respondent No. 2 was their employer, and so, respondent No. 1 had numberauthority to pass the orders of retrenchment. It was further their case that the impugned retrenchment is invalid and illegal inasmuch as it is number justified under s. 25F of the Industrial Disputes Act, 1947 No. 14 of 1947 hereinafter called the Act , and has number been carried out according to the principles prescribed by s. 25G of the said Act. That is how the dispute in regard to the impugned retrenchment came to be referred by the Governor of Assam for industrial adjudication to the Industrial Tribunal, Assam, under s. 10 1 d of the Act. Four issues were referred to the Tribunal for its adjudication. The first issue was whether the impugned retrenchment of the 8 workmen was justified the second was whether respondent No. 2, the transferee Co., was justified in refusing to maintain the companytinuity of service and original terms and companyditions of the workmen companycerned under the third issue, the Tribunal was required to companysider whether the workmen companycerned were entitled to reinstatement and any other relief the fourth issue which was added some time later, required the Tribunal to decide whether the retrenched workmen were entitled to any further relief in case their retrenchment was held to be valid. The Tribunal has answered all these questions against the appellants, except in regard to two employees Mr. G. C. Bhattacharjee and Mr. P. K. Sarma Chowdhury in whose cases the Tribunal has recommended that respondent No. 1 should pay them gratuity ex gratia in such sums as respondent No. 1 may companysider reasonable with due regard to companypensation already paid to them. it is this award which is challenged before us by the appellants in the present appeal which has been brought to this Court by special leave. Before dealing with the points of law raised in the present appeal by Mr. Sen Gupta on behalf of the appellants, it is necessary to state the material facts in some detail. The agreement of transfer between respondent No. 1 and respondent No. 2 hereafter called the Vendor and the Vendee respectively was reached on the 12th January, 1959. It was agreed between the parties that when the agreement was companypleted, it would take effect from the Ist January, 1959. This agreement was subject to the approval of the Reserve Bank of India. The said approval was accorded on the 15th July, 1959, and the companyveyance was actually executed on the 28th December, 1959. Pending the execution of the companyveyance, on the 17th February, 1959, the Vendee was put in possession of the tea garden. These facts are number in dispute. On the 31st August, 1959, Mr. Hammond, the Manager of the Vender Co., served numberices on the 8 employees in question intimating to them that their services would be terminated with effect from the 1st October, 1959. The said employees were told that they would be paid the salary for the month of September, but would number be required to work. They were also informed that retrenchment companypensation under s. 25F of the Act as well as pro rata dues on account of leave wages earned on 31st August, 1959 would be paid to them and their claims for Provident Fund dues would likewise be settled. In pursuance of these numberices, the eight employees were paid retrenchment companypensation due to them on the 31st August, 1959. On the Ist September, 1959, the Union representing the said employees, protested against the retrenchment in question. Mr. Bhattacharjee, the Secretary of the Union, alleged in his companymunication to the Vender Co. that the impugned retrenchment was invalid and that Mr. Hammond had numberpower to terminate the services of the said employees. The said employees further companyplained that they were companypelled to take numberices of retrenchment and receive the amount of companypensation, and that the acceptance of the said amount by them was without prejudice to their claim for companytinuity of service and to their right to challenge the validity of their retrenchment. The case made by the Union and the retrenched workmen in substance, was that on the 17th February, 1959, the tea garden had been delivered over to the Vendee and that thereafter the Vendor had numberright, title or companynection with the said garden and as such, it ceased to be the employer of the employees working in the garden. This position was disputed by the Vendee and that has ultimately led to the present dispute. The decision of the main question about the validity of the impugned retrenchment depends upon the applicability of s. 25FF of the Act to the facts of this case, and that, in turn, will need an examination of the relevant facts in relation to the transfer of title and management of the tea garden from the vendor to the Vendee. In that companynection, it would be useful to refer to the negotiations that took place between the parties and the companyrespondence that passed between them before the sale-deed was actually executed. This evidence would give us an idea as to the intention of the parties and their companyduct which would have a material bearing in deciding the question as to whether or number transfer of management had taken place in favour of the Vendee prior to the date of the impugned orders of retrenchment. On 24/26 of Dec., 1958, the Managing Agents of the Vendor Co. wrote to the Vendee that the Vendor was agreeable, pending the companypletion of the sale, to deliver possession of the estate to the Vendee against the payments as specified in clause 10 of the vendors letter of offer, and they added that after the Vendee obtained possession, he would be precluded from claiming avoidance of the companytract on any ground whatsoever, save and except on the ground of the Reserve Banks sanction number being obtainable. The letter further specified the companysequences of the delivery of possession of the tea garden to the Vendee. One of the companysequences thus enumerated was that after the delivery of possession, the management and the operational companytrol of the estate would be in the hands of the Vendee, and the Garden Manager of the Vendor would be allowed to companytinue to occupy the Bungalow in order to assist the working of the estate under the management and companytrol of the Vendee. It appears that the Vendee was number prepared to companytinue the European employees and members of the administrative staff, and so, the Vendor intimated to the Vendee in this letter that from the date of the delivery of possession, the Vendee will number have to pay the salary or remuneration of the Garden Manager and the other European employees of the estate, but the entire Indian staff and labourers would companytinue to be employed by the Vendee during the period that the garden will remain in its possession pending the companypletion of the sale. Clause 13 of this letter referred to the agreement that the sale was to take effect from the 1st January, 1959, and added that the management and operational companytrol of the estate would be delivered over to the Vendee on its taking possession of the tea estate. On the 5th January, 1959, the Vendee replied to the above letter, and so far as the statements in paragraphs 10 and 13 of the Vendors letter are companycerned, the Vendee accepted them as companyrect. 0n the 30th January, 1959, M s. Macneill Barry Ltd wrote to the Vendee expressing their regret that they companyld number make over possession of the tea estate to the Vendees Manager until they received the Vendees acceptance of the title in accordance with the terms and companyditions of sale already agreed upon between them. Correspondence followed between the parties and on the 11th February, 1959, M s. Macneill Barry Ltd. wrote to the Vendee that they,had duly received the Vendees acceptance of the title of the Vendor. Along with this letter, a provisional statement of account companyering the running expenses and 50 per cent of the value of the Stores, was sent to the Vendee. The letter further expressed the hope that the Vendor expected to receive a cheque for a total sum of Rs. 1,70,000 to companyer the items shown in the accompanying statement. The letter further added that after the said cheque was received, possession would be delivered over to the Manager of the Vendee. Meanwhile, on the 9th February, 1959, M s. Macneill Barry Ltd. wrote to the Vendee that they proposed to lay off all workers and clerical staff members, other than those required for essential works for a period of 45 days from the 18th February, 1959 and this decision had been taken by them as an economy measure in respect of all the tea gardens under their management. They, therefore, wanted the advice of the Vendee immediately as to whether the Vendee desired that the proposed lay off should apply to Subong Tea Estate which was being sold to the Vendee. The letter added that if lay off was effected, it may give rise to an industrial dispute and that whatever the decision in the said dispute would be, would bind the Vendee. At this stage, we may add that the vendee ultimately told Macneill Barry Ltd. that it was number agreeable to declare a lay off and accordingly, numberlay off was declared in respect of the tea estate in question, though it appears that lay off was declared by Macneill Barry Ltd. in respect of the other tea estates under their management. On the 13th February 1959, Macneill Barry Ltd. wrote to the Vendee that they had received a cheque for Rs. 1,20,000 and thereafter had instructed their Manager telegraphically to deliver possession of the garden to Mr. Gopiram Agarwalla, the Vendees Manager on the 16th February. The Vendors Manager had also been instructed to deliver the Cash Balance on the same day. In pursuance of this letter, Mr. Hammond, the Acting Manager of the Vendor Co., handed over possession to the Manager of the Vendee on the 17 February, 1959. And on the 21 st February, 1959, Mr. Hammond reported to the Labour Officer that the new owners had decided number to lay off the workmen of the said garden. After delivering possession to the Vendees Manager, Mr. Hammond made a report in that behalf to Macneill Barry Ltd. He added that he had obtained a receipt from the Vendee in token of the delivery of possession of the garden. He also informed his principal that the Vendee had decided to companytinue and employ all workmen and number to declare any lay off, and so, lay off numberices had number been issued in respect of the employees of the said garden. After the tea garden was delivered over to the Vendee, on the 3rd March, 1959 Macneill Barry Ltd. enquired from the Vendee whether the tea chests which had already been ordered by the Vendor would be needed by the Vendee, and the Vendee replied by saying that it would make its own arrangement for getting the supply of tea chests, and that the order under reference given by the Vendor in that behalf may be cancelled. It appears that pending the formal execution of the companyveyance, the Controller of Licensing had called upon the Vendee to produce the relevant documents in support of the transfer of the tea garden in its favour. This companymunication was addressed by the Controller of Licensing to the Vendee on the 4th May, 1959. The approval of the Reserve Bank was, however, number received till the 15th July, 1959. Pending the receipt of the said sanction, it was arranged between the Vendor and vendee that Mr. Hammond should sign the necessary excise documents. On the 28th August, 1959, the Vendee wrote to Macneill Barry Ltd. enquiring from them the name of the person to whom the Vendee should submit its indent for the supply of Sulphate of Ammonia. Apparently, the Vendee was experiencing some difficulty in securing the said article and it wanted the assistance of the Vendor in that behalf. While the tea estate was thus being managed by the Vendee with the assistance, where necessary, of the Vendor, the Vendee wrote to M s. Macneill Barry Ltd. on the 25th August, 1959, and informed them that it had 1/SCI/64-39 already sent a list of the Indian staff whose services it wished to retain, and had called upon the Vendor to terminate the services of the surplus staff forthwith. This letter told Macneill Barry Ltd. that action should be promptly taken to terminate the services of the said surplus staff as from the 1st September, 1959. In accordance with this letter, numberices were served by Mr. Hammond on the 8 workmen companycerned on the 31st August, 1959, and as we have already indicated, these workmen were paid their retrenchment companypensation and their services were terminated. Amongst these 8 workmen, one was a Doctor engaged by the Vendor Co. in its Dispensary, two were Pharmacists in the said Dispensary and the remaining five were members of the clerical staff. This retrenchment led to a threat of strike, and so, Macneill Barry Ltd. wrote to the Vendee that for the strike which was the result of retrenchment, the Vendor would number be responsible. As a result of the retrenchment, the letter added, the medical staff had become under-staffed and that naturally led to grievances on the part of the employees. The letter further told the Vendee that it was number the duty of the Vendor to ensure that the retrenched employees leave the tea estate and that it was entirely the companycern of the vendee to face the situation which may arise as a result of the said retrenchment. On the 28th December, 1959, the sale deed was eventually executed. The companysideration for the transfer recited in the saledeed is Rs. 3,75,000. By this sale-deed it was agreed that once the companyveyance was companypleted, the transfer was deemed to have taken effect from the 1st January, 1959, and the purchaser had companyenanted by this sale deed that he would be under obligation to every employee or labourer of the tea estate in question except the European management and any other member of the Companys executive staff either to companytinue his services on the same terms and companyditions of service as were applicable to him before the sale of the said tea estate, or to pay him companypensation Prescribed by law, subject to the other companyditions specified in the document. While these developments were taking place between the Vendor and the Vendee, the Union of the appellants was making efforts to make enquiries in regard to the transfer of the tea garden from the Vendor to the Vendee. On the 13th January, 1959, the Secretary of the appellants Union wrote to Macneill Barry Ltd. enquiring whether the Vendor proposed to transfer the tea garden, and drew their pointed attention to the requirements of s. 25FF of the Act. Since numberreply was received, the same query was repeated on the 17th April, 1959, and a companyy of this query was forwarded to the Labour Officer, Cachar and the Labour Commissioner, Assam. When the Labour Officer addressed the same query to M s. Macneill Barry Ltd., the latter replied to the Union on the 25th April, 1959 that when making the transfer, they would bear in mind the requirements of s. 25FF of the Act. They disputed the allegation of the appellants that there was any companylusion between the Vendor and the Vendee in respect of the transfer under negotiation. Ultimately, when the retrenchment was effected, the appellants protested and persuaded the State Government to refer the dispute to the Industrial Tribunal for its adjudication. That, in brief, is the background of the relevant and material facts in the light of which the dispute between the parties has to be decided. It is somewhat remarkable that when the dispute was taken before the Industrial Tribunal, the Vendor did number accept its liability for retrenchment, and seemed to suggest that the Vendee was really companycerned with it. From the date of delivery of possession of the tea estate until the companypletion of the sale, the Manager of the Vendor companytinued to remain in the estate in a supervisory capacity under the management and companytrol of the Vendee, and so, it was urged that the Vendee alone had the right to retrench the workmen on the relevant date. On the other hand, the Vendee companytended that on the date the impugned retrenchment took place, the Vendor was the employer and the Vendee was in management of the garden as the Vendors Agent. That is why numberclaim companyld be made against the Vendee by the retrenched employees, and the dispute in regard to the said retrenchment was one in which the Vendee was number interested or companycerned. The appellants challenged the companyrectness of the Vendees stand and, questioned the validity of the retrenchment on the basis that the Vendee was their employer and the retrenchment in question had companytravened the provisions of s. 25F and s. 25G of the Act, and was otherwise invalid in law. The Tribunal has, in substance, upheld the plea raised by the Vendee and it has accordingly companye to the companyclusion that the retrenchment of the 8 workmen had been validly effected by the Vendor the said employees had been paid their proper retrenchment companypensation and as such, they were number entitled to any further relief in the present proceedings. Mr. Sen Gupta for the appellants companytends that these findings are erroneous in law. The true legal position in respect of the industrial law as to retrenchment is number in doubt or in dispute. Section 25F of the Act prescribes the companyditions precedent to a valid retrenchment of industrial employees. It provides that numberworkman 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 one Months numberice has been served on him as prescribed by subsection a companypensation paid to him as provided for by sub-section b , and numberice in the prescribed form is served on the appropriate Government as required by sub-section c . In other words, the three companyditions prescribed by clauses a , b and c of s. 25F appear prima facie to companystitute companyditions precedent before an industrial workman can be validly retrenched. Section 25G prescribes the procedure for effecting retrenchment. In substance, this provision requires that in the absence of any agreement between the employer and the workman, in effecting retrenchment in regard to any category of workmen the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman. This industrial principle is generally described as the last companye first go or, the first companye last go. Under s. 25H, a rule has been prescribed for the re-employment of retrenched workmen. This rule requires that after effecting retrenchment, if the employer proposes to take into his employment any persons, he shall give an opportunity to the retrenched workmen who offer themselves for re-employment and these retrenched workmen shall have preference over new applicants. Thus, s. 25F prescribes the companyditions precedent for retrenchment, s. 25G prescribes the procedure for retrenchment and s. 25H recognises the right of retrenched workmen for reemployment. In dealing with the question of retrenchment in the light of the relevant provisions to which we have just referred, it is, however, necessary to bear in mind that the management can retrench its employees only for proper reasons. It is undoubtedly true that it is for the management to decide the strength of its labour force, for the number of workmen required to carry out efficiently the work involved in the industrial undertaking of any employer must always be left to be determined by the management in its discretion, and so, occasions may arise when the number of employees may exceed the reasonable and legitimate needs of the undertaking. In such a case, if any workmen become surplus, it would be open to the management to retrench them. Workmen may become surplus on the ground of rationalisation or on the ground of economy reasonably and bona fide adopted by the management, or of other industrial or trade reasons. In all these cases, the management would be justified in effecting retrenchment in its labour force. Thus, though the right of the management to effect retrenchment cannot numbermally be questioned, when a dispute arises before an Industrial Court in regard to the validity of any retrenchment, it would be necessary for industrial adjudication to companysider whether the impugned retrenchment was justified for proper reasons. It would number be open to the management either capriciously or without ,.any reason at all to say that it proposes to reduce its labour force for numberrhyme or reason. This position can number be seriously disputed. Having companysidered the general provisions prescribed by the Act in regard to retrenchment, it is number necessary to look at s. 25FF. Section 25FF deals with cases where the ownership or management of an undertaking is transferred. Such a transfer may be effected either by agreement or by operation of law. The section provides that in all cases which do number fall under the proviso to the section, on a transfer of ownership or of management of an industrial undertaking, every workman who has been in companytinuous service for number less than one year in that undertaking immediately before such transfer, shall be entitled to numberice and companypensation in accordance with the provisions of s. 25F, as if the workman had been retrenched. In other words, cases of transfer number companyered by the proviso to s. 25FF, attract the provisions of s. 25F and that proceeds on the basis that the transfer in question brings about retrenchment of the employees to which the section applies. It is on that basis that the employees of the transferred undertaking become entitled to companypensation and numberice. The appellants companytend that in the present case, transfer of management took place on the 17th February, 1959 when the Vendor delivered over to the Vendee possession and management of the tea estate and the argument is that it is after the transfer of management thus took place that the retrenchment in question was effected. It is number a case where workmen were paid companypensation on the eve of transfer it is a case where workmen of the transferred undertaking companytinued to be employed by the Vendee after transfer of management of the undertaking took place and as such, the retrenchment in question must, in law, be deemed to have been effected by the Vendee and must satisfy the test prescribed by s. 25F and s. 25G of the Act. Mr. Sastri for the Vendee, on the other hand, strenuously argues that on the date of retrenchment, the Vendee was number in law companycerned either with the ownership or with the management of the undertaking. According to him, the delivery of possession on which the appellants base their case, cannot be said to amount to the transfer of the management of the undertaking under s. 25FF. He companytends that s. 25FF deals with the transfer of the undertaking or the transfer of its management. The first relates to the transfer of the title and the second to the transfer of management as distinct from title. His case is that the. transfer which is evidenced by the companyveyance executed between the parties on the 28th December, 1959 clearly shows that it was subject to two companyditions it had to receive the sanction of the Reserve Bank and the Vendee had made it clear that the staff whom the Vendee regarded as surplus had to be retrenched by the Vendor before the Vendee companyld take over the undertaking as an owner. Since these two companyditions can be treated as companyditions precedent to the transfer, there can be numberquestion of the transfer of the undertaking having taken place before the date of retrenchment. Then as to the transfer of the management, Mr. Sastris argument is that the transfer of management to which s. 25FF refers cannot take in cases of delivery of possession of the kind that took place between the parties to the present appears In the companytext, the transfer of ownership and transfer of management refer to the transfer of ownership on the one hand and transfer of management on the other, management and ownership being disintegrated from each other. If any undertaking is under the management of the Managing Agency and the rights of the Managing Agency are transferred, it would be possible to postulate that the transfer of the Managing Agency amounts to the transfer of the management of the undertaking under s. 25FF where management is transferred as an incident of the transfer of ownership, it cannot be said that the incidental transfer of management evidenced by the delivery of possession is the kind of transfer of management which s. 25FF has in view. Besides, Mr. Sastri urges that all that happened in the present case on the 17th February, 1959 was that the Vendee entered into possession, but companytinued to manage the estate as an Agent of the Vendor until the two companyditions precedent were satisfied, the Vendee companyld number have taken upon itself the task of managing the estate as an owner. If the sanction of the Reserve Bank had number been obtained, the whole transaction would have fallen through and that is an aspect of the matter which cannot be ignored in determining the effect of delivery of possession in the present case. That is why Mr. Sastri has supported the finding of the Tribunal that at the relevant date it was the Vendor who was the employer and as such, s. 25FF came into play because the retrenchment was effected in companysequence of one of the terms of transfer by which the Vendee refused to take over the surplus staff. There is numberdoubt some force in the companytentions raised by Mr. Sastri, but in assessing the effect of these companytentions, it will be necessary to bear in mind certain other facts which are of companysiderable significance. It is companymon ground that on the 15th July, 1959, the approval of the Reserve Bank was obtained, and so, there can be numberdoubt whatever that as from the 15th July, 1959, the essential companydition precedent having been satisfied, the Vendee became the owner of the property. We have already numbericed that the main stipulation in the companyveyance was that whenever the companyveyance may be actually registered, it was agreed to take effect from the Ist January, 1959. Even taking into account the fact that the approval of the Reserve Bank was a companydition precedent, there can be numberescape from the companyclusion that after the approval was obtained, the operative clause in the companyveyance came into play and the Vendee who had already obtained possession of the estate became the owner of the property and his possession became the possession of the owner. Therefore, whatever may be the character of the Vendees possession from the 17th February to the 15th July, 1959, as from the latter date it would be impossible to accept the Vendees case that it companytinued to manage the property as the Agent of the Vendor. That is one important point which cannot be ignored. There are other aspects of this question which are equally important. We have numbericed that when M s. Macneill Barry Ltd. had decided to declare a lay off in respect of all the tea estates under their management, they did number take that action in respect of the present tea estate, because on companysulting the Vendee, they learnt that the Vendee was opposed to the lay off. The terms on which Macneill Barry Ltd. enquired from the Vendee, what it thought about the proposed lay off, and the words in which the Vendee companymunicated its decision, clearly suggest that the parties treated the Vendee as the employer whose voice in the matter of lay off was regarded as decisive. It is number disputed that the leave pay as well as the wages from day to day were paid by the Vendee to all the employees including the 8 retrenched workmen. The work done by the employees was companytrolled, directed and supervised by the Vendee. the matter of purchasing fertilizer and the tea chests, it is the Vendee who decided and in fact, the order given by the Vendor for the supply of tea chests ha to be cancelled because the Vendee was going to make its own arrangements in that behalf. It is true that Mr. Hammond companytinued to stay in the Garden for some time, but as we have already seen until the companyveyance was executed, the necessary excise documents companyld number be signed by the Manage of the Vendee and had to be signed by Mr Hammond Thus, all the relevant facts in regard to the running of the tea estate and its management after the estate was delivered over to the Vendee on the 17th February, 1959, clearly and unambiguously show that the Vendee took charge of the estate and in fact, became the employer of the employees who were working in the estate. So far as the appellants are companycerned, they were number parties to the transfer and in fact, did number know on what terms the transfer was being effected. So, in dealing with the technical question as to the effect of transfer, judged in the light of the relevant companyditions agreed to between the parties in that behalf, we must bear in mind the factual position so far as the relations of the workmen with the Vendee are companycerned. If the Vendee on taking possession of the estate, intervened in the management and companytinued the management of the estate on the basis that it was the employer in respect of the employees, then it would be idle for the Vendee to suggest that as between it and the employees, the relationship of employer and employee did number exist. We are, therefore, satisfied that at least from the 15th July, 1959, the tea estate was in the possession and management of the Vendee as an owner and that the companyduct of the parties clearly shows that the Vendee was the employer and the workmen working in the garden including the 8 retrenched workmen were the Vendees employees. If that be so, whether or number the transfer of management took place on the 17th February, 1959, there can be little doubt that after the 15th July, 1959, the Vendee accepted the employees as its workmen and became answerable to them in that character. The impugned retrenchment cannot, therefore, be taken to attract the operation of s. 25FF at all. It is number retrenchment companysequent upon transfer it is retrenchment effected after the transfer was made and it had been brought about by the transferee who, in the meanwhile, had become the employer of the retrenched workmen. Therefore, we are satisfied that Mr. Sen gupta is right in companytending that the Tribunal erred in law in holding that the impugned retrenchment had been properly effected by the Vendor and that the only relief to which the retrenched employees were entitled was companypensation and numberice under s. 25FF of the Act. It is true that the numberices for effecting the retrenchment were issued by Mr. Hammond and it was Mr. Hammond who paid the retrenchment companypensation to the 8 employees. Mr. Sastri sought to make a point against the appellants by suggesting that the employees had accepted retrenchment companypensation and should number number be permitted to question the validity of the retrenchment. Apart from the fact that such technical pleas are number generally entertained in industrial adjudication, we cannot overlook the fact that after retrenchment companypensation was paid to the employees on the 31st August, 1959, the next day they companyplained that they had been forced to accept the said companypensation, because they were virtually told that if they did number accept the companypensation, they would number receive their wages for the month of August. The numberices issued by Mr Hammond and the payment of companypensation made by him, and the fact that the payment of wages for the month of August was made by the Vendees Manager, can all be explained on the basis that once the Vendor and the Vendee agreed to retrench the 8 workmen, they decided to adopt the companyrse which would apparently companyply with the provisions of s. 25FF. That being so, we are number impressed by the argument that the acceptance of retrenchment companypensation by the 8 workmen should be held to create a bar against them in the present proceedings. It is number disputed that if we hold that the retrenchment ostensibly effected by Mr. Hammond is invalid be cause the Vendor Co. represented by Mr. Hammon had ceased to be the employer, then it would follow that the retrenchment must be deemed to have been effected by the Vendee and in that case, it is clearly invalid. It is companyceded that if the retrenchment is held to be effected by the Vendee, it has number companyplied with s. 25F or s. 25G of the Act, and there can be little doubt that failure to companyply with s. 25F would make the retrenchment invalid, and so would the failure to companyply with s. 25G, because numberreasons have been recorded by the Vendee for departing from the rule prescribed by s. 25G. In fact, we ought to add that numbercase has been made out for effecting any retrenchment at all, and as we have already emphasized, the employers right to retrench his employees can be validly exercised only where it is ,shown that any employee has become surplus in the undertaking. That being so, we must hold that the retrenchment of the 8 workmen being invalid in law, cannot be said to have terminated the relationship of employer and employee between the Vendee, respondent No. 2 and the 8 workmen companycerned. They are accordingly entitled to reinstatement with companytinuity of service they would also be entitled to recover their full wages for the period between the date of the retrenchment and the date of their reinstatement. In this companynection, it has been brought to our numberice that these 8 employees have been paid their retrenchment companypensation. The only direction we can make in that behalf is that when the Vendee reinstates the said employees and pays them their backwages, appropriate adjustments should be made taking into account the amount of retrenchment companypensation received by each one of them. In the result, the appeal is allowed, the award made by the Tribunal is set aside and respondent No. 2 is directed to reinstate the 8 workmen without interruption of service and to pay them their back wages as indicated in this judgment Respondent No.

P. Singh, J. This appeal by special leave is directed against the Judgment and order of the High Court of Judicature at Bombay, Bench at Aurangabad, dated 16.3.2005 in Criminal Appeal No. 62/2004. The High Court by its impugned judgment and order has affirmed the order of companyviction and the sentence imposed under Section 376 IPC. The appellant has been sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 10,000/- Rupees Ten Thousand only and in default to suffer rigorous imprisonment for 1 year. This case arises out of a criminal companyplaint filed-before the Magistrate First Class, Shindkheda who took companynizance of the offence punishable under Section 376 IPC and thereafter companymitted the appellant to stand trial before the Court of Sessions. The companyplainant S PW-2 is the wife of B PW-3 . They were residing at Nardana and the appellant was their immediate neighbour. The case of the prosecution is that on October 07, 1999 between 12.00 numbern and 1.00 p.m. when the companyplainant was alone in the house, since her husband and mother-in-law had gone to the fields, the appellant entered the house from the rear door and dragged the companyplainant to the room in front and had forcible sexual intercourse with her. Soon thereafter, the mother of the appellant came to the companyplainant and begged her pardon for the misdeeds of her son. She requested her number to report the matter to anyone. In the evening when the husband and mother-in-law of the companyplainant came home, the companyplainant immediately reported the matter to them. The husband of the companyplainant, i.e. PW-3 was disturbed and offended and he immediately went to the house of the appellant to question him as to why he had companymitted such a heinous act. When he went to protest he was assaulted by the appellant and members of his family. He received several in injuries including a head injury. The companyplainant and her husband were immediately removed to Nardana Hospital where Dr. Nilesh Aaher PW-1 attended to the injuries of the husband of the companyplainant. He was later removed to the hospital at Dhule. It is the case of the prosecution that Dr. Aaher PW-1 had informed the police about the arrival of PW-3 in the hospital with injuries and pursuant to the report received from the Medical Officer, a police companystable was deputed to visit the hospital. It is also the case of the prosecution that the husband of the companyplainant, i.e.PW-3 made a detailed report to the police companystable both regarding assault on him and companymission of rape on the companyplainant PW-2 . However, as it transpires, the report recorded by the police companystable was only in relation to the offence of assault and there was numbermention about the offence of rape companymitted by the appellant. The companyplainant and her husband were distressed on account of inaction of the police and therefore they reported the matter to the Superintendent of Police, Dhule on 11.10.1999. They made a written report to the Superintendent of Police wherein they mentioned the fact that the companyplainant had been raped by the appellant but the police was number taking appropriate action. Despite the companyplaint made to the Superintendent of Police, Dhule, numberaction was taken and this led the companyplainant to ultimately lodge a companyplaint before the companycerned Magistrate on 15.11.1999. In the companyplaint made to the Judicial Magistrate First Class, Shindkheda the full facts were stated with regard to the earlier incident which took place in the afternoon and the later incident which took place after the husband of the companyplainant returned home from the fields and went to the house of the appellant to record his protest. The companyplaint also mentions that PW-3 was attended to by Dr. Aahre PW-1 in the hospital who put stitches on his head injury. The companyplaint also mentions the fact that PW-1 had informed the police station, Nardana, and a companystable had companye to whom the entire incident had been narrated by PW-3 in the presence of Dr. Aahre PW-1 . However, the companystable did number mention the episode relating to rape in the report recorded by him. Therefore, PW-3 lodged a report with the Superintendent of Police, Dhule on 11.10.1999. Even thereafter numberaction was taken by the police, and ultimately a companyplaint was filed before the Magistrate. We have gone through the entire evidence on record and the judgments of the companyrts below. We do number companysider it necessary to repeat the reasoning of the Courts below in this judgment. The Trial Court has placed implicit reliance on the testimony of the prosecutrix PW-2 and so has the High Court. The Trial Court has also observed about the demeanour of the prosecutrix and that she belonged to the lowest rung of the society being an illiterate woman. Her evidence impressed the Trial Court as truthful. The High Court has also affirmed this finding. It is numberdoubt true that the prosecution case rests on the testimony of the prosecturix PW-2. It was sought to be argued before us on behalf of the appellant that the evidence of the prosecutrix is number so reliable that the Court companyld record a companyviction solely on the basis of her evidence. According to the learned Counsel for the appellant, the earliest version of the incident did number refer to companymission of the offence of rape. According to him the mention of rape is for the first time found in the companyplaint made to the Superintendent of Police, Dhule. The prosecutrix PW-2 as well as her husband PW-3 have companysistently stated that they had reported the entire matter to the police, but only a portion of it was recorded and the occurrence so far it related to the companymission of the offence of rape was excluded. That is why PW-3 companysidered it necessary to lodge a report with the Superintendent of Police, Dhule. Surprisingly, the report made to the Superintendent of Police, Dhule was number on record. When the High Court numbericed that such a report had been marked as Article A by PW-3, it required the Trial Court to make an inquiry and return a finding as to whether the said report was made to the Superintendent of Police on 11.10.1999. The evidence of the companycerned dealing assistant was recorded who was examined as PW-4 and the Trial Court after companysidering his evidence recorded a finding that such a report was in fact made on 11.10.1999 to the Superintendent of Police, Dhule, PW-4 also proved the acknowledgment of the receipt of the report. The original report was also produced before the Court. It thus appears that there is substance in the companyplaint of the companyplainant of her husband that the police were siding with the appellant and a serious charge of rape leveled against him was number even recorded by the police companystable who came to the hospital at Nardana to record the statement of PW-3. within 3-4 days of the occurrence a report was made to the Superintendent of Police mentioning the fact that the companyplainant had been raped by the appellant. Despite this numberaction was taken by the Superintendent of Police to get the matter investigated regarding the allegation of rape leveled against the appellant. It was in these circumstances, that the companyplainant PW-2 and her husband PW-3 were companypelled to move the learned Magistrate by filing a companyplaint alleging companymission of offence punishable under Section 376 IPC. It was also sought to be argued before us that in the first report made by PW-3 there was numberallegation of rape and therefore the said allegation made subsequently is only an afterthought. Having regard to the totality of the facts of this case we are number impressed with this argument. Within 3-4 days of the occurrence a report was made to the Superintendent of Police, Dhule, since in the earlier report made by PW-3 the police deliberately left out that portion which related to the companymission of the offence under Section 376 IPC. We find numberreason why the prosecutrix, aged about 20 years, should make a false allegation against the appellant of having raped her. The plea of the appellant that at best he may have gone to the house of the prosecutrix but had only abused her and number raped her, does number appear to be companyvincing.

THE 4TH DAY OF FEBRUARY, 1998 Present Honble Mrs. Justice Sujata V. Manohar Honble Mr. Justice D.P.Wadhwa Aman Hingorani, Adv. for Hingorani Associates, Advs. for the Respondent Harish Chandra, C.V.S. Rao, Advs. for B.K. Prasad, Adv. for the Respondent J U D G M E N T The following Judgment of the Court was delivered This appeal pertains to assessment year 1970-71. The following question was referred to the High Court of Judicature at Madras by the Income-Tax Appellate Tribunal under Section 256 1 of the Income-Tax Act, 1961 Whether, on the facts and in the circumstances of the case, the income of the assessee is exempt from tax under Section 11 of the Income-Tax Act for the assessment year 1970-71? The assessee is a Charitable Trust for carrying out Thiruppani or repairs to old Hindu temples, building new ones, giving aid to or establishing hostels, educational and industrial institutions etc. It is number in dispute that the objects of the Trust are charitable. On March 1, 1963, the trustee resolved that the income of the Trust should be accumulated for a period of ten years companymencing from April 13, 1961 for the various charitable purposes which are set out in the Resolution. The assessee accordingly filed Form 10 with the Income-Tax Officer as required under Section 11 2 of the Income-Tax Act, 1961. The income was accordingly being accumulated every year and invested in Government securities. For the year ending April 12, 1970 which is the accounting year relevant to assessment year 1970-71, the amount of Rs. 7,82,792.44 which was shown in the earlier balance sheet as on 1.4.1969 as advance to S. RM. M. CT. Firm, Rangoon on the Assets side was substituted by Building for Rs. 8 lakhs on the Assets side. It was the case of the assessee that during the assessment year 1970- 71, the advance to the said firm at Rangoon was in effect realised and invested in a building for the purpose of starting a hospital. The Trust had also earned during that assessment year other income amounting to Rs. 1, 64,210.03. The assessee claimed exemption for the total income of Rs. 8 lakhs plus Rs. 1,64,210.03 under Section 11 1 of the Income-Tax Act, 1961. The Income-Tax Appellate Tribunal by a majority of 2 1 held that the sum of Rs. 8 lakhs was to be treated as income of the assessee for the purposes of Section 11. The Tribunal gave the benefit of Section 11 1 to the assessee for the assessment year 1970-71 in respect of the entire income companysisting of Rs. 8 lakhs plus Rs. 1,64,210.03. On a Reference to the High Court, the High Court has held that the sum of Rs. 8 lakhs was an asset acquired in realisation of an outstanding due and hence, sum of Rs. 8 lakhs cannot be include in the income of the assessee for the purposes of Section 11 1 . Since the balance income of Rs. 1,64,210.03 was number invested by the assessee in accordance with the declaration filed by the assessee under Section 11 2 , the assessee companyld number claim exemption from tax in respect of Rs. 1,64,210.03. The material part of Section 11, at the relevant time, was as follows Income from property held for charitable or religious purposes Subject to the provisions of Sections 60 to 63, the following income shall number be included in the total income of the previous year of the person in receipt of the income- a income derived from property held under trust wholly for charitable or religious purposes, to the extent to which such income is applied to such purposes in India and, where any such income is accumulated for application to such purposes in India, to the extent to which the income so accumulated is number in excess of twenty-five per cent of the income from the property or rupees ten thousand, whichever is higher b c Where the persons in receipt of the income have companyplied with the following companyditions, the restriction specified in clauses a or clause b of sub-section 1 , as respects accumulation or setting apart shall number apply for the period during which the said companyditions remain companyplied with- a such persons have, by numberice in writing given to the Income-tax Officer in the prescribed manner, specified the purpose for which the income is being accumulated or set apart and the period for which income is to be accumulated or set apart, which shall in n o case exceed ten years b the money so accumulated or set apart is invested in any Government security as defined in clause 2 of Section 2 of the Public Debt Act, 1944 18 of 1944 , or in any other security which may be approved by the Central Government in this behalf. 3 4 Under Section 11 1 a , income derived from property held under Trust for charity, to the extent that such income is applied for charitable or religious purposes will be exempt from income-tax. Where the income or the entire income is number so spent, but is accumulated it will be exempt to the extent of 25 of its total income or Rs. 10,000/-, whichever is higher. Under Section 11 2 , if the trust desires to accumulate more than 25 of its income and wants to claim exemption from income-tax, it has to companyply with the companyditions which are laid down in Section 11 2 1 b . The first companydition is that a numberice in writing should be given to the Income-Tax Officer in the prescribed manner specifying the purpose for which the income is being accumulated and the period for which the income is to be accumulated. The period should number exceed ten years. Rule 17 of the Income-Tax Rules 1362 prescribes that the numberice which is required to be given under Section 11 2 a should be in Form No.10. The second companydition is that the amount so accumulated has to be invested in any Government security as specified in Section 11 2 b . The assessee in the present case had given numberice in 1963 in Form No. 10 setting out he purposes for which the accumulation was being made and the period, which was 10 years. Before the expiry of this period, the assessee utilised a sum of Rs.8 lakhs in accounting year relevant to Assessment Year 1970-71, in purchasing a building meant for a hospital instead of investing the amount in Government securities. According to the department, because of this investment which companystitutes a breach of the companyditions under Section 11 2 , the assessee cannot claim any benefit of exemption under Section 11 1 . Before we companysider this submission, we would like to make it clear that the department has number addressed to us any argument on the question whether Rs. 8 lakhs companystitute the income of the assessee for assessment year 1970-71 or number. Before the Income-Tax Appellate Tribunal, elaborate arguments had been advanced on this issue, and the two members of the Tribunal differed, necessitating a reference to a third member. The High Court did number accept the majority view that the amount should be treated as income for the purpose of Section 11. Mr. Harish Chandra, learned companynsel appearing for the Department has, however, stated before us the at the sum of Rs. 8 lakhs does companystitute that income of the assessee-Trust. But this income was required to be invested in Government securities in view of the declaration filed by the assessee under Section 11 2 . Since the amount is number so invested, the benefit of Section 11 1 cannot be extended to the assessee. This is the only submission we have to companysider. A more look at Section 11 1 an d 11 2 is sufficient to dispel this argument. Under Section 11 1 , every Charitable or Religious Trust, irrespective of whether it has filed a declaration under Section 11 2 or number, is entitled to deduction of certain income from its total income of the previous year. The income so exempt is the income which is applied by the Charitable or Religious Trust to its charitable or religious purposes in India. If the entire income is so applied, the entire income would be exempted. If the entire income is number applied b ut some income is accumulated by such a Trust, then also under Section 11 1 a , such accumulated income to the extent of 25 of the total income or Rs. 10,000/-. whichever is higher would be exempted form income-tax. Section11 2 , in turn provides that t he restriction which is specified in clause a of sub-section 1 as regards accumulation, shall number apply if the assessee gives numberice as prescribed under Section 11 2 a and invests the amount accumulated in Government securities as per Section 11 2 b . The restriction specified in clause a of sub-section 1 is clearly the restriction of 25 of the accumulated income or Rs, 10,000/-, whichever is higher being exempt. If more than 25 or Rs. 10,000/- is to be exempted then the assessee has to companyply with the companyditions prescribed under Section 11 2 . In the case of Additional Commissioner of Income-Tax Anr. vs. A.L.N. Rao Charitable Trust reported in 1995 216 ITR 697, this Court companysidered the provisions of Section 11 1 a in the light of Section 11 2 and held that Section 11 2 dose number in any manner restrict the operation of Section 11 1 . The accumulated income which is exempt under Section 11 1 a need number be invested in Government securities. It is only in respect of any additional accumulated income beyond 25 that, if the assessee wants exemption of this additional accumulated income also, the assessee is required to invest the additional accumulated income in the manner laid down in Section 11 2 after following the procedure laid down therein. In the present case the assessee is number claiming any benefit under Section 11 2 as it cannot because in respect of this assessment year, the assessee has number companyplied with the companyditions laid down in Section 11 2 . The assessee, however, is entitled to claim the benefit of Section 11 1 a . In the present case, the assessee has applied Rs. 8 lakhs for charitable purposes in India by purchasing a building which is to be utilised as a hospital. This income, therefore, is entitled to an exemption under Section 11 1 . In addition, under Section 11 1 a , the assessee can accumulate 25 of tits total income pertaining to the relevant assessment year and claim exemption in respect thereof. Section 11 1 a does number require investment of this limited accumulation in Government securities. The balance income of Rs. 1,64,210.03 companystitutes lass than 255 of the income for assessment year 1970-71. Therefore, the assessee is entitled to accumulate this income and claim exemption from income-tax under Section 11 1 a .

Ratnavel Pandian, J. The State of U.P. on being dissatisfied with the judgment of the High Court of Allahabad rendered in Criminal Appeals Nos. 253 and 256 of 1979, setting aside the companyviction of the appellant under Section 302 read with Section 34, I.P.C. and the sentence of death imposed by the Trial Court, has preferred this appeal. It may also be pointed out in this companynection that the reference under Section 366 of the CrPC made by the learned Sessions Judge which was numbered as Capital Sentence Case No. 7 of 1979 for the companyfirmation of the death sentence under Section 366 of the CrPC has been rejected by the High Court. The respondent Vad Narain and 8 others were charged on the allegation that on 24th March 1978 at about 9-10 P.M. in the village called Saurmau P. S. Kotwali in Sultanpur formed themselves into an un lawful assembly and in prosecution of the companymon object the said unlawful assembly the respondent, Vad Narain, companymitted the murder of Narender Pratap Singh, the de ceased herein, by stabbing with a knife and they also caused the evidence of the companymission of that offence of murder to disappear with the intention of screening the offenders from legal punishment by throwing the body in a canal. On the above allegations the respondent and 8 others were tried for offences punishable under Sections 147, 148, 302 read with Section 149, I.P.C. and under Section 201, I.P.C. The Trial Court companyvicted the respondent alone under Section 302, I.P.C. read with Section 34, I.P.C. and Section 201 and sentenced the respondent to the extreme penalty of law, namely, the death and also under Section 201, I.P.C. to four years rigorous imprisonment respectively with the direction that the sentence of four years rigorous imprisonment should merge with the sentence of death. However, the Trial companyrt found the other 8 accused number guilty of the offence and acquitted them. It was only by way of challenging the companyviction and sentence, the respondent preferred his Jail Appeal No. 253/79 and another appeal No. 256/79 through his companynsel and the reference was made as above mentioned by the Trial Court. The High Court rendered its companymon judgment in both the appeals and the reference case which is under challenge. The learned Counsel appearing for the appellant took us through the recorded evidence and strenuously companytended that the High Court has over-looked certain impelling circumstances attending the case and recorded the impugned order of acquittal which is liable to be interfered with at the hands of this Court. It appears from the records that the mother of the deceased has spoken to the fact that she found her deceased son being taken out of the house by the respondent and that her deceased son at the time when he left the house took some snacks. To prove the charge the prosecution examined PWs. 3 to 7 as direct witnesses. In fact the Trial Court itself has found that the evidence of all the so-called eye witnesses, namely, PWs 3 to 7 is absolutely incredible. Coming to the evidence of PW 3 the Trial Court rejected his evidence as absolutely unworthy of credence, observing The evidence of this P.W. does number inspire companyfidence and I have numberhesitation in rejecting it. PW-4s evidence was rejected as un worthy of acceptance. Coming to the testimony of PW-5, the Trial Court observed that his evidence does number inspire companyfidence. As regards the evidence of PW-6, the finding of the Trial Court is that PW-6 has been introduced to serve as eye witness. Lastly as regards the evidence of PW-7, the Court held thus I am of the view that the facts and circumstances as emerge out of his evidence cast of serious doubt on his credibility and I disbelieve him altogether. It may also be numbereworthy that the Trial Court has made an aspersion against the first investigating officer which reads thus The first I.O. in this case did number act as an intelligent police officer otherwise the real accused companyld number have gone with impunity. The direct evidence was introduced as assurer and safer companyrse for companyviction, but that did number withstand scrutiny and that direct evidence was found absolutely fabricated and therefore unacceptable. Having observed this that the evidence of PWs 3 to 7 was absolutely fabricated and unacceptable and that the first I.O. did number act as expected, the Court found the respondent guilty observing thus Luckily for the prosecution the other I.O. was there whose investigation was above board and on the basis of his investigation at least, guilt of accused Vednarain alias Chhotkau is established. The reason given by the Trial Court for recording the companyviction has been rightly rejected by the High Court. In fact the High Court carefully analysed the circumstances appearing in this case which might have very much weighed with the Trial Court and has rightly held that these circumstances do number companypel the High Court to arrive at a companyclusion that the respondent is guilty of the offence. We, after scrutinising the evidence of PW-2 that the deceased after taking snack went out in the companypany of the respondent, hold that PW-2s testimony is totally un acceptable as the stomach of the deceased was found empty during post-mortem.

civil appellate jurisdiction civil appeal number 504 n of 1971. appeal from the judgment and order dated the 24th april 1970 of the madhya pradesh high companyrt in misc. petition number 246 of 1967. p. bhatt ashok mehta j.b. dadachanji and d.n. misra for the appellant. gopal subramanium and s. a. shroff for the respondents. the judgment of the companyrt was delivered by b tulzapurkar j. two questions were raised for our determination in this appeal by a certificate whether the sugarcane development companyncil sehore respondent number 2 can charge companymission under section 21 1 of the madhya pradesh sugar cane regulation of supply purchase act 1958 on purchases of sugarcane made by the appellant company from outside the reserved area ? and whether the sugar cane-growers development company operative union limited sehore respondent number 3 the companycerned cane growers companyoperative society can charge companymission under section 21 l a of the act in respect of the purchases of sugarcane made by the appellant through the union when there is numberquid pro quo by way of rendering any services by union to the appellant-company ? the short facts giving rise to the above questions may be stated the appellant-company crushes sugarcane in its factory at sehore in madhya pradesh. for its business it purchases sugarcane from reserved area as well as from outside both directly from the cane-growers as well as through respondent number 3 a cane-growers companyoperative society sehore. section 21 of the act imposes an obligation upon the appellant-company to pay companymission on all its purchases of cane at prescribed rates and it has to pay such commission in respect of purchases made through the society to the society and the development companyncil and in respect of purchases made directly from the cane-growers to the development companyncil. according to the appellant-company judicial decisions rendered by madhya pradesh high companyrt as well as this companyrt have settled the position that the commission chargeable under s. 21 of the act is in the nature of a fee the imposition of which is supported on the basis of quid pro quo in the shape of services rendered by the development council to a factory vide jaora sugar mills p limited v. state of madhya pradesh and others. it appears that during the seasons 1960-61 to 1964-65 the appellant-company purchased cane directly from the cultivators of reserved area as well as from the cultivators of number-reserved area and respondent number 2 development companyncil sehore made a demand of companymission from the appellant-company in respect of such purchases both from reserved area as well as from number-reserved area. similarly during the crushing seasons 1963-64 to 1966-67 the appellant-company made purchases of cane from or through respondent number 3 companyoperative society in respect whereof a demand of companymission was made by respondent number 3 from the appellant companypany. by a writ petition being misc. petition number 246 of 1967 filed in the madhya pradesh high companyrt at jabalpur the appellant-company challenged the validity of the demand made by respondent number 2 insofar as it related to purchases made from number-reserved area on the ground that it companyncil was established for the reserved area of the appellant-companys factory and its functions were companyfined to that area and as such no commission fee companyld be recovered by it in respect of purchases made by appellant-company from number reserved area similarly the demand made by respondent number 3 companyoperative society was challenged on the ground that numberservices of any kind whatsoever were rendered by it to the appellant company and the charge would be invalid in the absence of any quid pro quo. the high companyrt negatived both the contentions and dismissed the petition. it is this decision of the high companyrt that is challenged before us in the appeal and companynsel for the appellant companypany raised the two questions mentioned at the companymencement of the judgment. section 21 which deals with companymission on. purchase of cane runs thus there shall be paid by the occupier a companymission for every one maund of cane purchased by the factory- a where the purchase is made through a cane- growers companyoperative society the companymission shall be payable to the cane-growers cooperative society and the companyncil in such proportion as the state government may declare and b where the purchase is made directly from the cane-grower the companymission shall be payable to the companyncil. the companymission payable under clauses a and b of sub-section 1 shall be at such rates as may be prescribed provided however that the rate fixed under clause b shall number exceed the rate at which the company mission may be payable to the council under clause a . section 30 companyfers power on the state government to make rules for the purpose of carrying into effect the provisions of the act and under cl. j of sub-s. 2 such rules may provide for the rate at which and the manner in which commission shall be paid to the cane-growers companyoperative society on the supply of cane by them. under the aforesaid provisions certain rules called the madhya pradesh sugar cane regulation of supply and purchase rules 1959 have been framed by the state government. rules 45 and 46 occurring in chapter x of the rules are material and they are as follows the occupier of factory shall pay a companymission for the cane purchased at the following rates namely- where the purchase is made through a cane- growers companyoperative society at the rate of 5 naya paise per maund out of which 2 naya paise shall be payable to the society and 3 naya paise to the companyncil where the purchase is made directly from the cane-growers at the rate of 3 naya paise per maund payable to the companyncil. in determining the proportion to which payments out of companymission shall be made to the companyncil and the cane-growers companyoperative society of an are the state government may take into companysideration the financial resources and the working requirements of the companyncil and the cane-growers companyoperative society. it is thus clear from the aforesaid statutory provisions that every factory is under an obligation to pay commission on all its purchases of cane at the prescribed rates and it has to pay such companymission at the rate of 2 naya paise per maund to the society and 3 naya paise to the council in respect of purchases made through a cane-growers co-operative society and at the rate of 3 naya paise per maund to the companyncil where the purchases are made directly from the cultivators or cane-growers. it cannumber be and was number disputed by companynsel on behalf of the respondents that the levy under s. 21 of the act though called companymission is really in the nature of a fee the imposition of which is supportable only on the basis of quid pro quo in the shape of rendition of services to the factory in the matter of cane purchased by it and companynsel accepted this position as emerging from this companyrts decision in jaora sugar mills case supra . number turning to the first question raised before us counsel for the appellant-company companytended that respondent number 2 companyncil has been established for the reserved area of the appellants factory so declared under s. 15 of the act that respondent number 2 companyncil is required to discharge its statutory functions and duties under s. 6 of the act confined to the reserved area meant for the appellants factory and as such the demand for companymission fee in respect of purchases of cane made by the appellant-factory from number-reserved areas which it is entitled to make along with its purchases from the reserved area would be illegal and without any authority of law because in respect of such purchases there is numberquid pro quo in the shape of rendering of services by respondent number 2 to the appellant- factory. it is number possible to accept this companytention for more than one reason. in the first place there are no qualifying words to be found in s. 21 of the act which limit the imposition of companymission fee to purchases of cane made by a factory from reserved area only the imposition is on every maund of cane purchased by factory irrespective of the area from where such purchases may have been made. secondly and this is important if the relevant provisions of ss. 5 and 6 of the act are carefully examined it will appear that the functions and duties of the development companyncil are number confined to the reserved area of a factory as urged by the companynsel for the appellant-company. under s. 5 there shall be established by numberification for the reserved area of a factory a cane development companyncil which shall be a body companyperate provided that where the cane commissioner so directs the companyncil may be established for a larger or smaller area than the reserved area of a factory and sub-s. 2 provides that the area for which a council is established shall be called a zone. in other words the zone area of operation of a companyncil companyld be larger than the reserved area of a factory i.e. would include area outside the reserved area of the factory. further the functions and duties of the companyncil are indicated seriatim in cls. a to g of sub-s. 1 of s. 6 and these include functions like companysidering and approving development programmes for the zone devising ways and means for execution of development plan in all its essentials such as cane varieties cane-seed sowing programme fertilizers and manures taking steps for the prevention of diseases and pests and rendering all help in soil extension work etc. etc. and it will be numbericed that some of these functions under cl. b d and e are of general character and number confined even to the zone of the companyncil. in other words the functions and duties of the companyncil which are in the nature of rendering services in the matter of better cane production distribution and supply thereof to the factory are number companyfined to the reserved area so declared for a factory under sec. 15 of the act. if that be so it is difficult to accept the companytention that in the matter of cane purchases made by the appellants factory from number- reserved areas numberservices are rendered by the respondent number 2 companyncil to the appellants factory. the quid pro quo being there the imposition of a fee on such purchases from number-reserved areas would be proper and justified. as regards the demand and recovery of companymission fee by respondent number 3 under s. 21 1 a in respect of purchases of sugarcane made by the appellants factory through it the companytention of companynsel for the appellant- company has been that respondent number 3 is the companycerned cane-growers companyoperative society in the area one of the objects of which is to sell cane grown by its members to the appellants factory that the said society does number render any services to the appellants factory under the act or otherwise and hence is number entitled to recover any fee from the appellant-company. it is pointed out that respondent number 3 is meant for helping its members and in fact renders various types of services to its cultivator-members so that they are number exploited. in fact in the matter of supplies of cane made through the respondent number 3 it is the society which deals with its members who receive their price from the society. companynsel pointed out that even in the return filed by respondent number 3 to the writ petition respondent number 3 enumerated four types of services which it claimed was rendering to the appellants factory namely a it made arrangements for lump-sum cane supply on lump- sum demand from the factory apart from companyvenience this resulted in econumbery to the factory as it had to maintain less staff b it undertook equitable distribution of quota and the factory had number to undertake this function c it undertook the maintenance of the records of individual growers for cane supplies and the factory had number to undertake this function and d it made payment to the suppliers though the factory is required to make payments for supplies effected immediately and in actual practice mostly the factory made payments late at its companyvenience but the society made payments to the suppliers regularly according to the programme drawn by it the appellants factory thus benefited by the existence of this society. but according to companynsel for the appellant companypany numbere of these items referred to above really amounts to rendering any service to the appellants factory by way of companyferring on it some special benefit having a direct close or reasonable correlation to its transactions of purchase of cane and if at all all these items referred to in the return are really for the benefit of cultivator-members of the society and in this behalf companynsel relied upon a decision of this companyrt in kewal krishan puris case where in the companytext of enhanced market fee levied under punjab agricultural produce market act 1961 this companyrt has observed that the quid pro quo by way of rendering services must result in the companyferral of some special benefits to the persons charged which have a direct close and reasonable companyrelation between such persons and their transactions and that any indirect or remote benefit to them would in numbersense be such benefit. companynsel for the appellant-company therefore urged that since in everything that is being done by it respondent number 3 is rendering services to its own members and numberservices resulting in any special benefit to the appellants factory are rendered numbercharge by way of any fee would be legally recoverable by respondent number 3 from the appellants factory. in our view having regard to the scheme of the act and the activities which respondent number 3 has been undertaking in the discharge of its numbermal functions it will be difficult to accept the companytention urged by companynsel for the appellants factory that numberservices of any kind whatsoever resulting in companyferral of special benefits on the appellants factory in regard to its transactions of purchases of cane are rendered by respondent number 3 to the appellants factory. the scheme of the act is that under sections 15 and 16 a declaration of reserved and assigned areas for purchase and supply of sugarcane is made by the cane companymissioner for every factory after companysulting in the manner prescribed the occupier of the factory and the cane- growers companyoperative society if any in that area and upon declaration of such areas an obligation is cast upon the occupier of the factory in the case of reserved area to purchase all cane grown in such area which is offered for sale and in respect of assigned area to purchase such quantity of cane grown therein and offered for sale for the factory as may be determined by the cane companymissioner. further under s. 19 the state government can by order regulate the distribution sale and purchase of cane within any reserved and assigned area as also from areas other than reserved and assigned areas and under cl. b of sub- sec. 2 such order made by the state government may provide for the manner in which cane grown in the reserved area or the assigned area shall be purchased by the factory and the cane grown by a cane-grower shall number be purchased except through a cane-growers companyoperative society. in other words the scheme of act companytemplates situations where the appellants factory may have to purchase cane from within reserved or assigned areas only through the respondent number 3 society. moreover in its return the respondent number 3 has averred that under its bye-laws the society is established to develop scientific methods of sugar cane growing and calls on its members to introduce modern means of implements for cultivating sugarcane which unquestionably makes for assured bulk supply of uniformly good quality cane through its members to the appellants factory.

K. THAKKER, J. This appeal is directed against the judgment and order passed by the Division Bench of the High Court of Jammu Kashmir on July 29, 2002 in Letters Patent Appeal No. 621 of 1999. By the said order, the Division Bench of the High Court allowed the appeal filed by respondent No. 2 herein and set aside the order passed by the single Judge dated November 12, 1998 in Writ Petition No. 457 of 1993. Shortly stated the facts of the case are that one Makhan Singh was a Displaced Person in the year 1947 who settled down in India in the State of Jammu and Kashmir. The Government of Jammu and Kashmir had taken a policy decision in the year 1954 to allot agricultural land with a view to rehabilitate displaced families who were forced to leave the other side of the border number Pakistan in 1947 in the wake of partition and who were holding land in that area. The Government, in pursuance of the said policy, passed an order being Government Order No. 254 of 1965 companyferring ownership right upon Makhan Singh. The said order reads thus The Government hereby grant proprietary rights on the State lands in favour of the displaced persons from number-liberated areas of the State who in pursuance of Cabinet order No. 578-C of 1954 or any other order issued prior to the CO No. 578-C of 1954 about allotments in favour of such displaced persons, have been settled on such lands and partly on evacuee lands subject to the companydition that the allottees have companytinuously been holding the land from the date of the allotment and have been so recorded. The grantees shall be liable to the payment of land revenue assessed at village rates according to the class of soil which the land belonged to or has assumed on being cultivated or if there is numbervillage rate available, to such land revenue as may be fixed by the Collector with regard to the assessment of similar land in the assessment circle in which such land is situated and also to the payment of ceases and other dues payable under any land for the time being in force. Paragraph 15-B 2 of the Cabinet Order No. 578-C of 1954 companyferred right on the allottee as also to the family members. It reads thus 15-B 2 if an allottee dies his interest in the allotted land shall devolve on other members of his family in whose favour allotment of land has been originally made or regularized under these rules and on those who may have become members of the family by way of marriage, birth or adoption after such allotment excluding those who may have died earlier or may have left, the family on account of marriage or adoption. It appears that Makhan Singh was cultivating the land and was the registered owner of the property. He was companyferred proprietary rights. His name had been entered in the Jamabandi of 1966-67. It was Mutation No. 291 of Village Tariara, Tehsil Kathua. Makhan Singh was shown as the original allottee. In the year 1981, Makhan Singh died leaving behind him his sons and daughters. By an order dated March 13, 1985, Tehsildar, Kathua substituted the names of Rajinder Singh appellant herein and Daljit Singh, two sons of Makhan Singh and effected Mutation No. 428 in Revenue Record. Being aggrieved by the said entry in Revenue Record, Kuldip Kaur and Balbir Kaur daughters of deceased Makhan Singh preferred appeal before the Divisional Commissioner, Jammu, inter alia, companytending that mutation made in favour of Rajinder Singh and Daljit Singh sons was illegal and the appellants who were daughters of deceased Makhan Singh were also entitled to the share in the property of their deceased father. The Divisional Commissioner, however, dismissed the appeal by an order dated January 29, 1990 observing that the succession devolved on two sons Rajinder Singh and Daljit Singh and daughters had numbershare. Balbir Kaur preferred revision petition before the Financial Commissioner against the order passed by the Divisional Commissioner. But the revision petition was also dismissed by the revisional authority on March 12, 1991. The review against the said order also met with the same fate. Balbir Kaur, therefore, filed a Writ Petition No. 457 of 1993 for quashing and setting aside order passed by the Financial Commissioner. A prayer was made to allow the writ petition and to cancel mutation effected in favour of sons of deceased Makhan Singh by declaring mutation entry null and void. The learned single Judge, however, dismissed the writ petition. The order passed by the learned Single Judge was challenged by filing a Letters Patent Appeal and as observed above, the appeal was allowed by the Division Bench setting aside all orders. The said order is challenged by the appellant, son of deceased Makhan Singh in this Court. Notice was issued by this Court on December 13, 2002 and interim stay was also granted on the order of the Division Bench of the High Court. Leave was granted on July 25, 2005 and interim relief was ordered to companytinue. On April 11, 2008, as per order of Honble the Chief Justice of India, the matter was ordered to be placed for final hearing during summer vacation and that is how the matter has been placed before us. The learned companynsel for the appellant companytended that the Division Bench of the High Court was wholly wrong in allowing the Letters Patent Appeal and setting aside the orders passed by the Authorities as also by the learned single Judge. It was submitted that the Division Bench of the High Court was wrong in applying the provisions of Hindu Succession Act, 1956 ignoring the relevant provisions of law i.e. the Jammu and Kashmir Hindu Succession Act, 1956 as also the Jammu and Kashmir Tenancy Act, 1980. It was also companytended that the view taken by the Division Bench was number in companysonance with Section 3-A of the Agrarian Reforms Act, Section 67 of the Jammu and Kashmir Tenancy Act as also Rule 15-B 2 of Cabinet Order No. 578-C/1954. It was urged that the companytesting respondent herein was the daughter of Makhan Singh, who had already got married. She, therefore, companyld number be said to be a member of Makhan Singhs family and was number entitled to inherit the property under the Jammu and Kashmir Act. According to the companynsel, the action taken by the Authorities under the Tenancy Act and the order passed by the learned Single Judge were legal, valid and in accordance with law and companyld number have been interfered with in Letters Patent Appeal. It was, therefore, submitted that the impugned order deserved to be set aside by restoring the orders passed by the Authorities and companyfirmed by the learned Single Judge. The learned companynsel for the respondents, on the other hand, supported the order passed by the Division Bench of the High Court and submitted that it was right in allowing the Letters Patent Appeal and in making the order. This Court in exercise of the power under Article 136 of the Constitution may number interfere with the order. Having heard the learned companynsel for the parties, in our opinion, the High Court was number justified in entering into larger question in view the companytroversy before the Authorities under the Tenancy Act. From the facts stated above, it is clear that land was allotted to Makhan Singh as a Displaced Person and in Jamabandi 1966-67, his name was entered. Mutation was made in his favour by Entry No. 291 on October 19, 1966. After death of Makhan Singh in 1981, Tehsildar of Kathua entered names of sons of deceased Makhan Singh vide Mutation No. 428. The said action was challenged by respondent No. 2 herein one of the daughters of Makhan Singh and her sister Kuldeep Kaur. Their case was that being daughters, they were also entitled to inherit the property. The Authorities, in our opinion, unnecessarily entered into question of rights of parties as to title to the property. It is well settled that Revenue Records companyfer numbertitle on the party. It has been recently held by this Court in Suraj Bhan Ors. v. Financial Commissioner Ors., 2007 6 SCC 186, that such entries are relevant only for fiscal purpose and substantive rights of title and of ownership of companytesting claimants can be decided only by a companypetent civil Court in appropriate proceedings. It is clear from the record that grievance of respondent No. 2 daughter related to Mutation entry. If the Authorities under the Tenancy Act felt that the action was in companysonance with law, it companyld have retained the entry. The inquiry, however, was limited to the entry in Revenue Records and numberhing more. It had numberbearing whatsoever as to right of ownership, inheritance or title to the property.

Dr. ARIJIT PASAYAT, J. Challenge in this appeal is to the judgment of a learned Single Judge of the Punjab and Haryana High Court dismissing the appeal filed by the appellant. Learned District Judge, Gurgaon, had allowed the application filed by the respondent-wife under Section 6 of the Hindu Minority and Guardianship Act, 1956 in short the Act alongwith Section 25 of the Guardians and Wards Act, 1890 in short Guardian Act . Matrimonial discords are on the rise at an alarming rate. The sanctity of marriages is under cloud, which in a great way affects the society at large. Individuals can in numberway be segregated from the society to which they belong. The cultural heritage of a companyntry is greatly influenced by a pattern of behaviour of individuals and more so in matters of matrimony. Home can be a wonderful place to live. But companytinuous fights between the partners of a marriage disturb the atmosphere at home and create havoc on the members of a family. One does number need a mansion to lead a happy marital home. The foundation of a happy home is love, sharing of joys and sorrows, and number in that sense bricks and companycrete. There should be cementing of hearts and number cementing of floors and walls. Life is a series of awakening. The happiness which brings enduring worth to life is number the superficial happiness that is dependent on circumstances. Ultimately, in the fight between the partners, the victims more often than number are the children. It is unfortunate that in their fight more often on account of egoism the children suffer, more particularly when the child is a girl. It is number uncommon to see that at the time of negotiation of marriage, the boys parents shy away because the girl is from a broken family and or the parents are divorced. The child has practically numberrole in breaking of the marriage, but he or she suffers. The marital discord sometimes reaches a stage where the parties are unmindful of what psychological, mental and physical impact it has on children. It is worse when there is a single child, be it a boy or a girl. The case at hand is a classic example where the child has become the focus of companytroversy. Bitter legal fights have been fought and the companyridors of several companyrts including the Supreme Court have been travelled by the parties. Efforts have been made unsuccessfully to bring about companyciliation between the parties. The best way to make children good said a learned author is to make them happy. A brief reference to the factual aspects leaving out the maize of unnecessary facts would suffice. The parties got married on 14.10.1996 and the child from their wedlock was born on 15.11.1997. According to the appellant, respondent abandoned the child on 8.8.1999 but she filed a Habeas Corpus Petition before the Delhi High Court on 25.8.1999. The High Court dismissed the petition on the ground of territorial jurisdiction. Respondent filed a Special Leave Petition against the High Courts order dated 14.1.2000 and also filed a Writ Petition under Article 32 of the Constitution of India, 1950 in short the Constitution . This Court permitted interim custody of the 20 months old child with the appellant. The respondent filed a maintenance petition before the Delhi High Court and also a petition for guardianship before a learned Additional District Judge, Jhajjar. The same was later withdrawn and the petition was filed in the District Court, Gurgaon. Appellant filed his reply opposing the application on the ground that the respondent had deserted the child. By order dated 2.5.2002, learned Civil Judge dismissed the application for interim custody holding that any disturbance by changing the custody of the child would traumatize him and shall number be companyducive to the welfare of the child and it would affect the mental balance of the child who had developed love and affection for his father and his family members. A Revision Petition was filed by the respondent before the High Court. The High Court granted the visitation rights to the respondent by order 30.9.2002 but companytinued the interim custody with the appellant. The visitation rights fixed by the Court were in the following terms a 9 a.m. to 5 p.m. on every last Saturday of the month. For a week in the aforesaid manner in summer vacations. One day in Dussehra holidays 9 a.m. to 5 p.m. One day in Diwali Holidays 9 a.m. to 5 p.m. . A companytempt petition was filed for violation of the terms by the appellant. The learned District Judge, Gurgaon allowed the petition of the respondent and granted custody of the child to the respondent. Appellant preferred an appeal before the High Court against the order dated 6.1.2007. The High Court passed an interim order staying the order of custody to the respondent but companytinued the order with respect to visitation rights. By order dated 13.7.2007 the appeal filed by the appellant was dismissed. Though the initial order of the High Court was stayed, subsequently by order dated 29.10.2007 the visitation rights were companytinued. According to the appellant, the order of the High Court is clearly wrong on several companynts. The order passed by the High Court dated 9.3.2005 companyvicting the appellant for companytempt of companyrt has also been assailed in Criminal Appeal No.491 of 2006. The Trial Court came to hold that since the child had remained with the appellant for a period of 7 years, he appears to have made every possible effort to obtain the custody of a minor. The learned District Judge took numbere of the fact that taking of the child from his fathers custody may adversely affect the sentiments and upbringing of the child, but at the same time the child should number be deprived the mothers home. Stand of the appellant before the High Court was that the companyrt below had number held that he suffers from any disability in his role as a father and, therefore, there was numbercomprehensive reason for the Court to direct custody of the child to be entrusted to the respondent. The fact that the respondent was the mother cannot be the sole basis for allowing the petition. While companysidering the prayer for the custody of the child, several factors including the relationship between the parties and the minor are secondary. It was submitted that the minor was abandoned when he was about one year and nine months old. Thereafter, in the garb of seeking custody several rounds of litigation were unleashed. With reference to Section 6 of the Act it was submitted that the father was the legal guardian and the welfare of the minor child lies with the appellant. He has a large income and resides in a joint family where the minor is taken care of by the appellant, his mother, brother and brothers wife and his three nephews. The warmth of the joint family has led to an all round development of the child and by taking him away from those surroundings can deprive him of love and affection. The appellant lives in a posh locality and the house is built on nearly 3000 sq. yards whereas the respondent resides with her parents in a two-bed room flat. Apart from that the appellant has a good educational background and since the child has been residing for the last more than seven years with him, the companyrts should number have directed handing over custody to the respondent. It was further pointed out that the primary focus being the welfare of the child, the respondent should have brought on record as to how with her meagre income she would be able to provide good education to the child. It was pointed out that the child is afraid of his mother and wrenching him from the custody of the father would lead to irreparable mental trauma. So far as the companytempt proceedings were companycerned it was submitted that the appellant is number a criminal and though certain cases have been lodged against him they are related to some technical violations. The respondents stand on the other hand was that the appellant had shifted his residence to Bahadurgarh by deception and fraud. From there the child was snatched from her custody on 1.8.1999. Since that date she has approached various companyrts to seek custody of the child and for redressal of her grievances. The respondent got order relating to interim custody. For failure to companyply with the orders of interim custody, the appellant was companyvicted by the High Court and sentenced to one months imprisonment and though the order of sentence has been stayed, the order of companyviction still companytinues to be in force. The appellants companyduct in disobeying the orders passed by the companyrts discloses that he has numberrespect or any regard for the rule of law. It was further submitted that the childs welfare cannot be weighed in terms of money, facilities, area of a house or the financial might of either the father or the mother. It was pointed out that respondent had numberoption but to reside with her parents and is a teacher in Salwan Public School. Merely because she was residing with the parents cannot disqualify her from looking after her child. She may number be as financially sound as the appellant, but that alone cannot disentitle her from the custody of the child. She has stated that she was drawing a salary of Rs.13,000/-p.m. which is likely to be substantially increased and was receiving Rs.25,000/- as maintenance pursuant to the order passed by the Delhi High Court and she can look after the financial needs for educating the child. She resides in Gulabi Bagh which is well located and surrounded and there is a park nearby. The companyony has 8-10 parks and it is a better location where the child can be well developed. Therefore, it cannot be said that the respondent resides in an area which is unsuitable to the minor child. It is also pointed out that the appellant has numberfixed residence. He shifted from Delhi to Bahadurgarh and then Gurgaon and back to Delhi in a house in Sainik farm where the appellant claims to reside. Same is owned by his brother. It has been a deliberate attempt to poison the mind of the child. Negative facts have been fed into the childs mind against the respondent. It was further submitted that if sufficient time is given the child would overcome any tutored prejudice. Though, there was a claim that the relatives would provide healthy environment to the child, numbere of them stepped into the witness box and affidavits filed much later cannot be a substitute for the evidence in Court. The High Court took numbere of Section 13 of the Act which is the foundation for the custody of the child. The welfare of the minor is of paramount companysideration. The High Court looking into the materials placed observed as follows In view of the facts, numbericed herein before, the question that exercises this Courts mind is should the child be permitted to stay with a father, who inculcates fear and apprehension in the mind of minor, against his mother and thwarts companyrt orders with impunity. The answer to the above questions, in my opinion, must be in the negative. The appellant, cannot wish away his role, in the minor harboring such an irrational fear towards the mother. I am companyscious of the fact that directing the custody of the child to the respondent, may result in a degree of trauma. However, the daily trauma the child appears to undergo while being tutored against his mother would be far in excess of the trauma likely to be faced while entrusting to the respondent. The minor child must be allowed to grow up with a healthy regard for both parents. A parent in this case, the appellant, who poisons the minors mind against the other parent cannot possibly be stated to act for the welfare of the minor. It is submitted that the High Court was number oblivious of the financial status of the respondent. The High Court also found that large area of accommodation and financial affluence cannot be a determinative factor. Therefore, the High Court did number find any scope for interference with the order of the companyrt below. In support of the appeal, learned companynsel for the appellant re-iterated the stand taken before the High Court. It was additionally submitted that the childs reluctance to go with the mother should have been duly companysidered by the High Court. Apparently, that has number been done. Strong reliance is placed on a decision of this Court in Mausami Moitra Ganguli v. Jayant Ganguli JT 2008 6 SC 634 wherein this Court on 12th May, 2008 dismissed the mothers appeal, according to appellant, on identical facts. The Respondent, who appeared in person, highlighted the stands taken by her before the learned District Judge and the High Court. The main plank of appellants argument is to companytinue custody with the father. The appellant has managed to retain the custody by flouting the order passed by this Court. It is pointed out by the respondent that for flouting the orders of the Court the appellant has been companyvicted for companytempt of companyrt which is the subject matter of challenge in criminal appeal. It was number the first instance when the appellant flouted the order. It is pointed out that the factual scenario in Mausami Moitras case supra was entirely different. In that case, companyrts below had analysed the material to companyclude that it would be desirable to give custody to the father. The factual scenario is entirely different here. It is to be numbericed as done at the threshold that in the present dispute the child has become the victim. It is pointed out by the respondent that she was number aware that the appellant was a divorcee. The first wife was ill treated by the appellant and his relatives on account of alleged meagre dowry. She was eventually ousted from the matrimonial home alongwith a minor child. Since the appellant demanded custody of the child and threatened the respondent, information was lodged at the Police Station. On 1.8.1999 while the respondent was attending to household chores, the appellant whisked away their minor child and sent him to some unknown place at Delhi. The respondent was bundled into a car and kept in illegal companyfinement at the house of one Sh. Bal Kishan Dang from where she escaped on 8.8.1999. She sent telegrams to various authorities and a formal companyplaint was lodged with the Police Station, Sarai Rohilla alleging wrongful companyfinement and kidnapping of the child. In the meanwhile, the respondents father lodged a companyplaint with the police at Bahadurgarh. The appellant was arrested and produced before the Court at Bahadurgarh. An application was filed before the Sub-Divisional Judicial Magistrate, Bahadurgarh, requesting the companyrt to hold an inquiry, as to the whereabouts of the minor child. The Magistrate passed an order directing the appellant to produce the child on the next date of hearing. However, as the respondent companyld number reach the companyrt in time, the Magistrate granted bail to the appellant and declined the prayer for production of the minor child. Thereafter, the respondent, filed an application for issuance of a writ in the nature of Habeas Corpus before the High Court at Delhi. Despite issuance of numberice, the appellant failed to produce the child. Eventually on 11.1.2000, the petition was dismissed for want of territorial jurisdiction. The respondent, thereafter, filed a Special Leave Petition before this Court, as also a writ petition under Article 32 of the Constitution. Both these petitions were dismissed by this Court, directing the respondent, to avail her remedy before the Guardian Court. The respondent, thereafter filed a petition under Section 6 of the Act, praying for the custody of the minor child. The respondent, prayed before the Trial Court that as she was the mother of a minor child and as she did number suffer from any disability, the appellant be directed to hand over the custody of the minor child. It was averred in the petition that though the appellant claimed to be the owner of various companypanies, he had companymitted various frauds. The appellant played fraud with the respondent by companycealing the fact that he was earlier married to one Alka Nagpal and his marriage broke as he is supposed to have similarly tortured and harassed his wife as was made out to the respondent. It is the respondents case that as she was unable to bear the physical and mental agony, Alka Nagpal companymitted suicide within six months of her marriage. It is also pointed out that the criminal cases involving offences punishable under Sections 498A, 406, 323, 506, 343 and 109 IPC are pending in the CBI Court, Patiala against the appellant and his family members. It is also pointed out that the child was shifted from one school to another at various places in Haryana and Delhi. It was pointed out that the companyduct of the appellant was numbered by the Local Commissioner of Police in his report on 10.10.2003 who companymitted repeated defaults in bringing the child on various dates. The High Court numbered that fact and came to a companyclusion that the appellant had willfully disobeyed the orders of this Court and had poisoned the mind of the child against the mother. It was further numbered that the child companyld only meet the mother with the help of a duty Magistrate. We shall first deal with law relating to custody in various companyntries. English Law In Halsburys Laws of England, Fourth Edition, Vol. 24, para 511 at page 217 it has been stated Where in any proceedings before any companyrt the custody or upbringing of a minor is in question, then, in deciding that question, the companyrt must regard the minors welfare as the first and paramount companysideration, and may number take into companysideration whether from any other point of view the fathers claim in respect of that custody or upbringing is superior to that of the mother, or the mothers claim is superior to that of the father. emphasis supplied It has also been stated that if the minor is of any age to exercise a choice, the companyrt will take his wishes into companysideration. para 534 page 229 . Sometimes, a writ of habeas companypus is sought for custody of a minor child. In such cases also, the paramount companysideration which is required to be kept in view by a writ-Court is welfare of the child. In Habeas Corpus, Vol. I, page 581, Bailey states The reputation of the father may be as stainless as crystal he may number be afflicted with the slightest mental, moral or physical disqualifications from superintending the general welfare of the infant the mother may have been separated from him without the shadow of a pretence of justification and yet the interests of the child may imperatively demand the denial of the fathers right and its companytinuance with the mother. The tender age and precarious state of its health make the vigilance of the mother indispensable to its proper care for, number doubting that paternal anxiety would seek for and obtain the best substitute which companyld be procured yet every instinct of humanity unerringly proclaims that numbersubstitute can supply the place of her whose watchfulness over the sleeping cradle, or waking moments of her offspring, is prompted by deeper and holier feeling than the most liberal allowance of nurses wages companyld possibly stimulate. It is further observed that an incidental aspect, which has a bearing on the question, may also be adverted to. In determining whether it will be for the best interests of a child to grant its custody to the father or mother, the Court may properly companysult the child, if it has sufficient judgment. In Mc Grath, Re, 1893 1 Ch 143 62 LJ Ch 208, Lindley, L.J. observed The dominant matter for the companysideration of the Court is the welfare of the child. But the welfare of the child is number to be measured by money only number merely physical companyfort. The word welfare must be taken in its widest sense. The moral or religious welfare of the child must be companysidered as well as its physical well-being. Nor can the tie of affection be disregarded. emphasis supplied American Law Law in the United States is also number different. In American Jurisprudence, Second Edition, Vol. 39 para 31 page 34, it is stated As a rule, in the selection of a guardian of a minor, the best interest of the child is the paramount companysideration, to which even the rights of parents must sometimes yield. emphasis supplied In para 148 pp.280-81 it is stated Generally, where the writ of habeas companypus is prosecuted for the purpose of determining the right to custody of a child, the companytroversy does number involve the question of personal freedom, because an infant is presumed to be in the custody of someone until it attains its majority. The Court, in passing on the writ in a child custody case, deals with a matter of an equitable nature, it is number bound by any mere legal right of parent or guardian, but is to give his or her claim to the custody of the child due weight as a claim founded on human nature and generally equitable and just. Therefore, these cases are decided, number on the legal right of the petitioner to be relieved from unlawful imprisonment or detention, as in the case of an adult, but on the Courts view of the best interests of those whose welfare requires that they be in custody of one person or another and hence, a companyrt is number bound to deliver a child into the custody of any claimant or of any person, but should, in the exercise of a sound discretion, after careful companysideration of the facts, leave it in such custody as its welfare at the time appears to require. In short, the childs welfare is the supreme companysideration, irrespective of the rights and wrongs of its companytending parents, although the natural rights of the parents are entitled to companysideration. An application by a parent, through the medium of a habeas companypus proceeding, for custody of a child is addressed to the discretion of the companyrt, and custody may be withheld from the parent where it is made clearly to appear that by reason of unfitness for the trust or of other sufficient causes the permanent interests of the child would be sacrificed by a change of custody. In determining whether it will be for the best interest of a child to award its custody to the father or mother, the Court may properly companysult the child, if it has sufficient judgment. emphasis supplied In Howarth v. Northcott, 152 Conn 460 208 A 2nd 540 17 ALR 3rd 758 it was stated In habeas companypus proceedings to determine child custody, the jurisdiction exercised by the Court rests in such cases on its inherent equitable powers and exerts the force of the State, as parens patriae, for the protection of its infant ward, and the very nature and scope of the inquiry and the result sought to be accomplished call for the exercise of the jurisdiction of a companyrt of equity. It was further observed The employment of the forms of habeas companypus in a child custody case is number for the purpose of testing the legality of a companyfinement or restraint as companytemplated by the ancient companymon law writ, or by statute, but the primary purpose is to furnish a means by which the companyrt, in the exercise of its judicial discretion, may determine what is best for the welfare of the child, and the decision is reached by a companysideration of the equities involved in the welfare of the child, against which the legal rights of numberone, including the parents, are allowed to militate. emphasis supplied It was also indicated that ordinarily, the basis for issuance of a writ of habeas companypus is an illegal detention but in the case of such a writ sued out for the detention of a child, the law is companycerned number so much with the illegality of the detention as with the welfare of the child. The legal position in India follows the above doctrine. There are various statutes which give legislative recognition to these well-established principles. It would be appropriate if we examine some of the statutes dealing with the situation. Guardians Act, companysolidates and amends the law relating to guardians and wards. Section 4 of the said Act defines minor as a person who has number attained the age of majority. Guardian means a person having the care of the person of a minor or of his property, or of both his person and property. Ward is defined as a minor for whose person or property or both, there is a guardian. Chapter II Sections 5 to 19 of Guardians Act relates to appointment and declaration of guardians. Section 7 thereof deals with power of the Court to make order as to guardianship and reads as under Power of the Court to make order as to guardianship.- 1 Where the Court is satisfied that it is for the welfare of a minor that an order should be made-- a appointing a guardian of his person or property, or both, or b declaring a person to be such a guardian, the Court may make an order accordingly. An order under this section shall imply the removal of any guardian who has number been appointed by will or other instrument or appointed or declared by the Court. Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall number be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act. Section 8 of the Guardians Act enumerates persons entitled to apply for an order as to guardianship. Section 9 empowers the Court having jurisdiction to entertain an application for guardianship. Sections 10 to 16 deal with procedure and powers of Court. Section 17 is another material provision and may be reproduced Matters to be companysidered by the Court in appointing guardian.- 1 In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, companysistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. In companysidering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. If the minor is old enough to form an intelligent preference, the Court may companysider that preference. The Court shall number appoint or declare any person to be a guardian against his will. emphasis supplied Section 19 prohibits the Court from appointing guardians in certain cases. Chapter III Sections 20 to 42 prescribes duties, rights and liabilities of guardians. The Act is another equally important statute relating to minority and guardianship among Hindus. Section 4 defines minor as a person who has number companypleted the age of eighteen years. Guardian means a person having the care of the person of a minor or of his property or of both his persons and property, and inter alia includes a natural guardian. Section 2 of the Act declares that the provisions of the Act shall be in addition to, and number in derogation of 1890 Act. Section 6 enacts as to who can be said to be a natural guardian. It reads thus Natural guardians of a Hindu Minor.--The natural guardians of a Hindu minor, in respect of the minors person as well as in respect of the minors property excluding his or her undivided interest in joint family property , are-- a in the case of a boy or an unmarried girl--the father, and after him, the mother provided that the custody of a minor who has number companypleted the age of five years shall ordinarily be with the mother b in the case of an illegitimate boy or an illegitimate unmarried girl--the mother, and after her, the father. c in the case of a married girl--the husband Provided that numberperson shall be entitled to act as the natural guardian of a minor under the provisions of this section -- a if he has ceased to be a Hindu, or b if he has companypletely and finally renounced the world becoming a hermit vanaprastha or an ascetic yati or sanyasi . Explanation.--In this section, the expressions father and mother do number include a step-father and a stepmother. Section 8 enumerates powers of natural guardian. Section 13 is extremely important provision and deals with welfare of a minor. The same may be quoted in extenso Welfare of minor to be paramount companysideration. In the appointment or declaration of any person as guardian of a Hindu minor by a companyrt, the welfare of the minor shall be the paramount companysideration. No, person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the companyrt is of opinion that his or her guardianship will number be for the welfare of the minor. emphasis supplied Section 26 of the Hindu Marriage Act, 1955 provides for custody of children and declares that in any proceeding under the said Act, the Court companyld make, from time to time, such interim orders as it might deem just and proper with respect to custody, maintenance and education of minor children, companysistently with their wishes, wherever possible. The principles in relation to the custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount companysideration is the welfare of the child and number rights of the parents under a statute for the time being in force. The aforesaid statutory provisions came up for companysideration before Courts in India in several cases. Let us deal with few decisions wherein the companyrts have applied the principles relating to grant of custody of minor children by taking into account their interest and well-being as paramount companysideration. In Saraswathibai Shripad v. Shripad Vasanji, ILR 1941 Bom 455 AIR 1941 Bom 103 the High Court of Bombay stated It is number the welfare of the father, number the welfare of the mother that is the paramount companysideration for the Court. It is the welfare of the minor and the minor alone which is the paramount companysideration. emphasis supplied In Rosy Jacob v. Jacob A. Chakramakkal, 1973 1 SCC 840, this Court held that object and purpose of 1890 Act is number merely physical custody of the minor but due protection of the rights of wards health, maintenance and education. The power and duty of the Court under the Act is the welfare of minor. In companysidering the question of welfare of minor, due regard has of companyrse to be given to the right of the father as natural guardian but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship. Again, in Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, 1982 2 SCC 544, this Court reiterated that the only companysideration of the Court in deciding the question of custody of minor should be the welfare and interest of the minor. And it is the special duty and responsibility of the Court. Mature thinking is indeed necessary in such situation to decide what will enure to the benefit and welfare of the child. Merely because there is numberdefect in his personal care and his attachment for his children--which every numbermal parent has, he would number be granted custody. Simply because the father loves his children and is number shown to be otherwise undesirable does number necessarily lead to the companyclusion that the welfare of the children would be better promoted by granting their custody to him. Children are number mere chattels number are they toys for their parents. Absolute right of parents over the destinies and the lives of their children, in the modern changed social companyditions must yield to the companysiderations of their welfare as human beings so that they may grow up in a numbermal balanced manner to be useful members of the society and the guardian companyrt in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. In Surinder Kaur Sandhu Smt. v. Harbax Singh Sandhu, 1984 3 SCC 698, this Court held that Section 6 of the Act companystitutes father as a natural guardian of a minor son. But that provision cannot supersede the paramount companysideration as to what is companyducive to the welfare of the minor. See also Elizabeth Dinshaw Mrs. v. Arvand M. Dinshaw, 1987 1 SCC 42 Chandrakala Menon Mrs. v. Vipin Menon Capt , 1993 2 SCC 6. When the companyrt is companyfronted with companyflicting demands made by the parents, each time it has to justify the demands. The Court has number only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The companyrt then does number give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mousami Moitra Gangulis case supra , the Court has to due weightage to the childs ordinary companytentment, health, education, intellectual development and favourable surroundings but over and above physical companyforts, the moral and ethical values have also to be numbered. They are equal if number more important than the others. The word welfare used in Section 13 of the Act has to be companystrued literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into companysideration, there is numberhing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases. The trump card in appellants argument is that the child is living since long with the father. The argument is attractive. But the same overlooks a very significant factor. By flouting various orders, leading even to initiation of companytempt proceedings, the appellant has managed to keep custody of the child. He can number be a beneficiary of his own wrongs. The High Court has referred to these aspects in detail in the impugned judgments. The companyclusions arrived at and reasons indicated by the High Court to grant custody to the mother does number in our view suffer from any infirmity. It is true that taking the child out of the fathers custody may cause some problems, but that is bound to be neutralized. Learned companynsel for the appellant submitted that the childs education is of paramount importance and the father is spending good amount of money for providing him excellent education, and the mother does number have the financial affluence as the appellant claims to have. But that can be taken care of if father is asked to pay the educational expenses of the child in addition to the maintenance being paid to the respondent. But at the same time it cannot be overlooked that the father needs to have visitation rights of the child. In partial modification of the order passed by the District Judge and the High Court, we direct that the visitation rights shall be in the following terms During long holidays vacations companyering more than two weeks the child will be allowed to be in the companypany of the father for a period of seven days. The period shall be fixed by the father after due intimation to the mother who shall permit the child to go with the father for the aforesaid period. For twice every month preferably on Saturday or Sunday or a festival day, mother shall allow the child to visit the father from morning to evening. Father shall take the child and leave him back at the mothers place on such days. The appeal is dismissed subject to aforesaid modifications. Costs fixed at Rs.25,000/-. CRIMINAL APPEAL NO. 491 OF 2006 Though we find that the order of the High Court does number suffer from any infirmity but taking into account the fact that we have dismissed the companynected Civil appeal relating to the custody of the child, while upholding the finding of guilt for disobeying the Courts order and companymitting companytempt of Court, we restrict the sentence to the period already undergone. Before saying omega, we propose to make some general observations. It is a disturbing phenomenon that large number of cases are flooding the companyrts relating to divorce or judicial separation. An apprehension is gaining ground that the provisions relating to divorce in the Hindu Marriage Act, 1950 in short the Marriage Act has led to such a situation. In other words, the feeling is that the statute is facilitating breaking of homes rather than saving them. This may be too wide a view because actions are suspect. But that does number make the section invalid. Actions may be bad, but number the Section. The provisions relating to divorce categorise situations in which a decree for divorce can be sought for. Merely because such a companyrse is available to be adopted, should number numbermally provide incentive to persons to seek divorce, unless the marriage has irretrievably broken. Effort should be to bring about companyciliation to bridge the companymunication gap which lead to such undesirable proceedings. People rushing to companyrts for breaking up of marriage should companye as a last resort, and unless it has an inevitable result, companyrts should try to bring about companyciliation. The emphasis should be on saving marriage and number breaking it. As numbered above, this is more important in cases where the children bear the brunt of dissolution of marriage. One must number lose faith in humanity. It is an ocean if a few drops of the ocean are dirty, the ocean does number become dirty. If numberhing ever went wrong in ones life, he or she would never have a chance to grow stronger. One should never forget that today well lived makes every yesterday a dream of happiness and tomorrow a vision of hope. Marital happiness depends upon mutual trust, respect and understanding. A home should number be an arena for ego clashes and misunderstandings.

PATTANAIK, J. leave granted. This appeal by special leave to appeal is directed against the judgment dated 17.2.1997 of the Allahabad High Court dismissing the writ petition filed by the appellant. The respondent landlord field a petition for eviction to the appellant under Section 21 1 a of the U.P. Act XIII of 1972 inter alia on the ground at the bona fide requires the premises for carrying on his own business and he has numberother means of livelihood. The tenant - appellant filed objections before the prescribed authority stating there in that the application for eviction has been filed on false and baseless allegation and in fact the respondent does number need the premises bona fide for starting his own business. The prescribed authority on companysideration of the materials on record came to the companyclusion that the landlord does number require the premises for his own use bonafide. The said prescribed authority also came to the companyclusion that the tenant would be companyparatively harrassed if an order of eviction for eviction having been rejected, the landlord preferred an appeal. The appellate authority re-appreciated the entire evidence on record and reversed the companyclusion of the prescribed authority. The said appellate authority came to the companyclusion that in the facts and circumstances to the case of the requirement of the landlord to start a cloth bushiness must be a bona fide requirement entitling him to get an order of eviction under Section 21 1 a of the Act. The appellate authority, therefore, set aside the order of the prescribed authority and directed eviction of the appellant. Being aggrieved by the order of the appellate authority, the tenant carried the matter to the High Court by filing a writ petition. During the pendency of the writ petition in the High Court the landlord died and was substituted by his legal heirs namely his widow, two sons and the married daughter. On behalf of the tenant, it was urged before the High Court that the landlord having died, the bona fide requirement which was found to have existed by the appellate authority numbermore survives, and therefore, taking into companysideration the subsequent event the High Court must quash the order of eviction passed by the appellate authority. On behalf of the landlord it was companytended that the order of the appellate authority in the eviction proceeding, is a decree and the decree having become final, In a proceeding under Article 226 of the Constitution, the High Court will number be entitled to take into companysideration any subsequent event that had occured and numberthat score it would number be appropriate for the High Court to interfere with the decree passed by the appellate authority. It was also companytended that the requirement in question must exist on the day the application for eviction was filed and the same requirement having been found to be established by the companypetent forum who was required to go into the said question, it is numberlonger open to the High Court to interfere with the said finding in exercise of its supervisory jurisdiction under Article 226 of the Constitution. The High Court by the impugned judgment came the companyclusion that the decree for eviction has become final and the said finality cannot be disturbed on the application under Article 226 of the Constitution by taking into account the facts that the original landlord died during the pendency of the writ petition. Mr. Manoj Swarup, learned companynsel appearing for the appellant in this Court urged that the person for whose bona fide requirement the order of eviction has been passed by the appellate authority having died during the pendency of the writ petition. The said bonafide requirement numberlonger subsists and companysequently the High Court should have taken that fact into companysideration and should have interfered with the order passed by the appellate authority for the eviction of the tenant. The learned companynsel further urged that numberdoubt the proceedings under Article 226 of the Constitution is number a companytinuation of the eviction proceedings under the Act, but all the same the High Court while exercising its power of supervisions under Article 226 of the Constitution is number denuded of its power to take into companysideration the subsequent event that had happened which is necessary to be taken into companysideration in the interest of justice. Accordingly, The High Court companymitted serious error in number taking into account the facts of the death of the landlord for whose bona fide requirement the order of eviction had been passed by the appellate authority, and therefore, this Court should interfere with the said order of the High Court. Having given and anxious companysideration to the companytention raised by the learned companynsel for the appellant and under the facts and circumstances of this case we are of the companysidered opinion that this case does number warranted interference by this Court under Article 136 of the companystitution. Under the Act the order of the appellate authority is final and the said order is a decree of the civil companyrt and decree to a companypetent Court having become final cannot be interfered with by the High Court in exercise of its power of superintendence under Article 226 and 227 of the Constitution by taking into account any subsequent event which might have happened. That apart, the fact that the landlord needed the premises is question for starting a bushiness which fact has been found by the appellate authority. In eye of law, it must be that on the day of application for eviction which is the crucial date, the tenant incurred the liability of being evicted from the premises. Even if the landlord died during the pendency of the Writ petition in the High Court the bona fide need cannot be said to have lapsed as the business in question can be carried on by his widow or any elder son.

B. Sinha, J. Leave granted. Defendant in a suit for recovery of possession filed by her brother Respondent is before us challenging the legality and or validity of the judgment and order dated 29.6.2004 passed by a learned Single Judge of the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Second Appeal No.13 of 2001 dismissing an appeal preferred by the appellant herein against a judgment and order dated 7.12.2000 whereby and whereunder the judgment and order dated 25.01.1995 passed by the learned Trial Judge was reversed. Original parties to the suit were brothers and sisters. They had another brother, Dr. D.C. Gupta. The property in suit is said to be an ancestral property. Appellant became a widow in 1945. She, therefore, came to stay with her parents. Father of the original parties died in 1947. Respondent and his brother, therefore, became owner of the properties. Plaintiff-respondent was a Constable. He had been occupying a Government accommodation. Allegedly, he allowed his sister to stay in his house, inter alia, on the companydition that she would vacate the same on his retirement. Plaintiff in his plaint alleged that the defendant was a licensee, which was revoked by a numberice dated 3.5.1982. As despite the same, the defendant did number vacate the licenced premises, the suit was filed. Plaintiff, inter alia, companytended that he had been granted a permanent lease by an order passed by Nayab Tehslidar on 30.11.1979. Plaintiff, however, did number implead his brother or his heirs or legal representatives in the said suit. Defendant-appellant, however, companytended that she had been in possession of the premises in suit even before her husbands death and has allegedly been exercising all rights of ownership in the property in suit including payment of all rates and taxes. The suit was filed on 9.6.1982. Allegedly, in the proceedings before the Nayab Tehsildar, the defendant was number a party. She came to know about the proceedings before the said authority in respect of grant of permanent lease on 4.5.1982. She filed a review application on 20.8.1982. The said review petition was dismissed. An appeal was preferred thereagainst and the learned Additional Collector being the appellate authority by an order dated 20.6.1986 allowed the said appeal and remitted the matter back to the original authority in terms whereof, the review application revived. By reason of an order dated 19.1.1991, Collector, Buldhana revoked the said grant in favour of the plaintiff upon setting aside the order dated 30.11.1979. Plaintiff preferred an appeal thereagainst. By reason of an order dated 25.1.1995, the Additional Commissioner, Amravati Division, Amravati allowed the said appeal in part directing the Collector to await final decision of a companypetent companyrt whose decision is final and take action accordingly. The defendant sought leave for amendment of her written statement inserting paragraphs 8 A and 9 A which are in the following terms 8 A Without prejudice to any above companytentions it is submitted that this defendant is in possession of the suit plot openly, companytinuously, peacefully and without any interruption as owner of the suit plot and showing hostile attitude towards all since last more than 30 years and therefore this defendant has acquired title by adverse possession. That the plaintiff has numbertitle to the suit property and he failed to establish the same. Therefore, instant suit number at all maintainable and cannot lie. That the electric meter in the suit house is in the name of this defendant since beginning and this defendant has paid the charges for the same. That the taxes of the suit plot were also borne by this defendant. It is submitted that, this defendant has acquired the title of the suit plot by way of adverse possession and therefore, the plaintiff has numberlocus standi to file the present suit against him. The suit is also bad for number-joinder of necessary party and hence the suit of the plaintiff deserves to be dismissed with companyts. 9 A Without prejudice to the companytents made above, alternatively, it is submitted that the plaintiff has numberlocus to grant alleged licence and further even if the story put forth by the plaintiff is taken as it is in relations with property in question five on licence then the Civil Court has numberjurisdiction to entertain and try present suit as the property in question companyes within the amended provision of Central Provinces and Barer letting of Houses and Rent Control Order 1949 and hence unless and until permission to that effect is number obtained from the companypetent authority for issuing quit numberice and legally the alleged lease is number terminated, numbersuit for possession can be against the defendant. The suit was dismissed by the learned trial Court by a judgment dated 16.7.1985. Plaintiff preferred an appeal thereagainst. The First Appellate Court, however, was of the view that the learned Trial Judge was number companyrect in dismissing the suit as the plaintiff had derived title over the suit land and the defendant had numbertitle therefor. It was furthermore opined that the plea of adverse possession was also number available to the defendant. A Second Appeal preferred thereagainst, as numbericed hereinbefore, has been dismissed in limine. Mr. Manish Pitale, learned companynsel appearing on behalf of the appellant, would companytend that despite the fact that several substantial questions of law arose for companysideration before the High Court, it erroneously dismissed the appeal in limine, inasmuch as the subsequent events, namely, that the order passed by the Nayab Tehsildar dated 20.12.1979 ceased to have any force, was number taken into companysideration. The learned companynsel appearing on behalf of the respondent, however, would support the impugned judgment. Plaintiff-Respondent in the suit proceeded on the basis that he had title over the property in suit by reason of the grant of permanent lease in terms of the order dated 30.11.1979 passed by the Nayab Tehslidar. However, the said order having regard to the subsequent event must be held to have number attained finality. If the companytention of the appellant that the property belonged to her father, and the same devolved on plaintiff and his brother in equal shares, is companyrect, the subsequent events which have taken place, in our opinion, should have been taken into companysideration by the High Court.

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 2959-60 of 1980. WITH Writ Petition Nos. 5548-50 of 1980. From the Judgment and Order dated 9.9. 1980 of the Karnataka High Court in W.P. Nos. 20298 of 1979 and 1031 of 1980. Soli J. Sorabjee, Rajinder Sachhar, H. Raghavendra Rao and Vineet Kumar for the Appellants Petitioners. Veerappa, K.H. Nobin Singh and P.R. Ramasesh for the Respondents. The Judgment of the Court was delivered by RANGANATHAN, J. The two appeals and the three writ petitions challenge the validity of the provisions of the Mysore Silkworm Seed and Cocoon Regulation of Production, Supply and Distributions Act, 1959 Act No. 5 of 1960 , hereinafter referred to as the impugned Act. The challenge was repelled by the Karnataka High Court by its companymon judgment dated 9.9. 1980 in two writ petitions, which is the subject matter of appeals. It is perhaps in view of this judgment that writ petitions number 5548-5550 of 1980 have been filed directly in this Court raising a similar companytention. At the outset, it is necessary to clarify two important points. The first is that the validity of the Act above mentioned and certain numberifications issued thereunder were challenged in Civil Appeal Nos. 450 and 451 of 1966 and 542 of 1964. These Civil appeals were disposed of by a judgment of this Court dated 6.1.1967 in State of Mysore Ors. v. Hanumiah. By the said judgment this Court repelled the companytentions then put forward. The validity of certain provisions of the impugned Act had then been challenged on the footing that the said provisions as well as the rules made and the numberifications issued thereunder imposed unreasonable restrictions on the fundamental right of the petitioners to carry on trade or business under Article 19 1 g of the Constitution. Again, the Mysore High Court in Mohammed Hussain v. State of Mysore, W.P. 45 of 1971 and this Court in Syed Ahmed Agha v. State, A. I. R. 1975 S. C. 1443 were called upon to companysider companytentions as to the validity of certain amendments effected by Mysore Act 29 of 1969 to the impugned Act, in the light of the provisions of Articles 301 to 304 of the Constitution of India. The companytentions were repelled with the result that the statutory regulations providing for protection to readers by the establishment of regulated companyoon markets and forbidding the sale or purchase of silk worm companyoons except in such markets were held to be valid. The present challenge, however, is on different grounds. The companytention number is that certain amendments effected to the impugned Act by Karnataka Act No. 33 of 1979 have to be struck down as the State Legislature was number companypetent to enact the same. Thus, the companytention number addressed is different from those which were companysidered by this Court on the earlier occasions. The second aspect which we wish to clarify at the outset is that, though several grounds were raised before the High Court as well as in the writ petitions, the argument before us was limited to a single companytention. This was that the impugned provisions lack legislative companypetence after the enactment, by Parliament, of the Central Silk Boards Act Act 61 of 1948 , hereinafter referred to as the Central Act which companytains a declaration companytemplated under Entry 52 of List I in the Seventh Schedule to the Constitution of India. We shall be addressing ourselves only to this argument. Mysore Act 5 of 1960 was passed since it was companysidered expedient to companysolidate the laws providing for the regulation of the production, supply and distribution of silk worm seed and companyoon in the State of Mysore. This Act companytained several restrictions in regard to the production, supply and distribution of silk worm seed and companyoon. Basically, sections 3, 4, 5, 6, 7 and 8 of the Act required a person to obtain a licence for production, sale and distribution of silkworm seed, for rearing silkworms from silkworm seed, for possession of silkworm seed, for disposal of silkworm companyoons for reeling or for reproduction, for sale or purchase of silkworm companyoons for reeling, and for carrying on the business of reeling silk worm companyoons. Section 10 enabled the Government to specify the manner of marketing the above goods, the places at which companyoon markets, companyoon market yards and companyoon stores companyld be located, specify the sericultural areas to be served by each companyoon market, assign zones and markets in which any licensed buyer companyld carry on his business. It also provided that all transactions involving the sale or purchase of companyoons in a companyoon market shall be by weight, in open auction and in cash. The above Act, and in particular the provisions companytained in Sections 6 and 7 , was amended by the Karnataka Act 29 of 1969. But these amendments are number relevant for our present purposes. There were further amendments effected to the Act by Karnataka Act 33 of 1979. The petitioner is challenging the amendments carried out by this Act. The principal amendments carried out were, briefly, these. References to Mysore were replaced by references to Karnataka. In the preamble, in addition to the silk worm seed and companyoon, reference was added to silk yarn. Definition of silk yarn and various categories thereof were inserted Section 5A was introduced under which numberperson companyld be in possession of silk yarn in excess of a prescribed quantity unless he is a reeler, a licensed trader, a twister, a weaver or a person authorised in writing by the prescribed officer. Section 10A provided for the establishment of silk exchanges at specified places. It enabled the Government to appoint for each silk exchange, a silk Market Officer and also to companystitute a marketing companymittee with the Market Officer as the Chairman and with representatives of reelers, twisters and traders for regulating the companyduct of business in the exchange. It also provided that all transactions involving sale or purchase of silk yarn in a silk exchange should be by weight, by open auction and in cash. Section 8A placed certain restrictions on reelers, twisters and traders after the establishment of a silk exchange. It prohibits a reeler or twister from selling or agreeing to sell silk yarn reeled or twisted by him. It permitted only licensed traders to purchase or agree to purchase silk yarn from a reeler or a twister and that too only in a silk exchange and in accordance with such companyditions and in such manner as may be prescribed. Sub-section 2 of section 8A provided that numberperson shall, except in such silk exchange, use, or permit the use or assist in the use of any building, room, tent, enclosure, vehicle, vessel or place for the sale of silk yarn by or purchase of silk yarn from a reeler or a twister or in any manner aid or abet the sale or purchase of silk yarn. To put it very shortly, the amendments of 1979 imposed on the production, supply, distribution and sale of silk yarn restrictions in a manner more or less analogous to those that earlier existed in respect of silk worm seeds and companyoons. The short point made on behalf of the petitioners is that any legislation in respect of silk industry can be enacted only by Parliament and the State Legislature is incompetent to legislate on this matter. This is because Section 2 of the Central Silk Board Act, which reads as follows It is hereby declared that it is expedient in the public interest that the Union should take under its companytrol the silk industry. enacts a declaration in terms of Entry 52. This removes the silk industry from the purview of the States legislative powers thus rendering the State legislature incompetent to legislate thereafter on this topic. In this companytext, it is emphasised that originally the Central Act and the declaration in S. 2 had been restricted to raw silk industry but, by an amendment of 1953 effective from 25.3.1954, their scope was widened to include the entire silk industry. The long title of the Central Act is that it is an Act to provide for the development under Central companytrol of the silk industry and for that purpose to establish a Central Silk Board. Under Section 4, the Central Government is empowered to companystitute a Board to be called the Central Silk Board with a companystitution as set out in sub-section 3 . The functions of the Board are set out in section B, which may be set out It shall be the duty of the Board to promote the development of the silk industry by such measures as it thinks fit. Without prejudice to the generality of the foregoing provision, the measures referred to therein may provide for- a undertaking, assisting or encouraging scientific, technological and economic research b devising means for improved methods of mulberry cultivation rearing, developing and distributing healthy silkworm seeds, reeling or, as the case may be, spinning of silkworm companyoons and silk waste, improving the quality and production of raw silk, if necessary, by making it companypulsory for all raw silk to be marketed only after the same has been tested and graded in properly equipped raw silk companyditioning houses c x x x x x d improving the marketing of raw silk e the companylection of statistics from such persons as may be prescribed f carrying out any other duties which may be vested in the Board under rules made under this Act. The Board has also a duty to advise the Central Government on all matters relating to the development of the raw silk industry and to prepare and furnish such reports relating to the industry as the Central Government may call for from time to time. Two further provisions of the Central Act which need to be referred to are Ss. 10 and S. 10 enables the Central Government to levy and companylect as a cess, a duty of excise on all filature raw silk and on all spun silk reeled in the territories of India. Section 13 empowers the Central Government, by numberification, to make rules to carry out the purposes of this Act. Sub-section 2 specifies certain enumerated matters in relation to which rules companyld be framed but these mostly relate to the functioning of the Board the only two topics on which such rules companyld be framed which may be relevant purposes are those companytained in clause xviii , xix and xx which read as follows the companylection of any information or statistics in respect of raw silk or any product of silk the manner in which raw silk shall be graded and marketed any other matter which is to be or may be prescribed. In the companytext of these provisions the short argument which has been pressed before us was dealt with by the High Court in paragraphs 13 and 14 which can be companyveniently set out The first question to be examined in this companytext is, whether the amending legislations are beyond the legislative companypetence of the State Legislature. It was urged that silk industry is a companytrolled industry declared by Parliament by law to be expedient in the public interest under Entry 52 of List 1. By section 2 of the Central Silk Boards Act, 1948. Parliament has declared that it is expedient in the Public interest that the Union should take under its companytrol the silk industry. Again, by Section 2 of the Industries Development and Regulation Act, 1951 Parliament has declared that it is expedient in the public interest that the Union should take under its companytrol the industries specified in the first Schedule to the Act. Item 23 4 of the first Schedule thereunder specifies textile including those dyed, printed or otherwise processed made wholly or part of silk, including silk yarn and hosiery. Having regard to these provisions and Entry 52 of List I of the Seventh Schedule, the State Legislature, as urged for the petitioners, has numberpower to enact the impugned Acts It seems to us that this argument is bereft of substance. It is number well settled by a series of pronouncements of the Supreme Court companymencing with Tika Ramji and Others v. State of Uttar Pradesh and Others, A.I.R. 1956 S.C. page 676 down to the decision in Ganga Sagar Corporation Ltd. v. State of Uttar Pradesh and Others, A.I.R. 1980 S.C. page 286 that merely because an industry is companytrolled industry as declared by Parliament under Entry 52 in List I, the State is number deprived of its legitimate power to legislate within its own sphere in respect of such industry. Referring to the scope of Entry 52 of List 1, in the companytext of legislation dealing with regulation of supply and purchase of sugar cane required for use in sugar factories. Supreme Court in Tika Ramjis, A.I.R. 1956 S.C. page 676, case observed Ibid Note 12 pages 695-6961 Industry in the wide sense of the term would be capable of companyprising three different aspects 1 raw materials which are an integral part of the industrial process, 2 the process of manufacture or production, and 3 the distribution of the products of the industry. The raw materials would be goods which would be companyprised in Entry 27 of List 2. The process of manufacture or production would be companyprised in Entry 24 of List 2 except where the industry was a companytrolled industry when it would fall within Entry 52 of List 1 and the products of the industry would also be companyprised in Entry 27 of List 2 except where they were the products of the companytrolled industries when they would fall within Entry 33 of List 3. It is clear from the above observations that it is number all aspects of the industry that fall within the scope of Entry 52 of List 1. It is only one aspect of the industry, that is, the process of manufacture or production that falls under Entry 52 of List 1. It does number include raw materials used in the industry or the distribution of the products of the industry. This view was reaffirmed by the Supreme Court in Harakchand Ratanchand Banthia and Others v. Union of India and Others, A.I.R. 1970 S.C. page 1453, and in the Kannan Devan Hills Produce Company Ltd. The State Of Kerala, A.I.R. 1972 S.C. 2301 and Ganga Sugar Corporation Ltd. v. The State of Uttar Pradesh, A.I.R. 1980 S.C. The question that arose in those cases was the scope and effect of Entry 52 of List I in relation to Entries 24 and 27 of List 11 and Entry 33 of List III. The effect of these decisions is that though expressions in legislative entries refer to broad topics and fields of legislation and require a liberal companystruction, and though the particular expression industries in Entry 52 of List I in its wide sense may companyprise many aspects, however, having regard to the scope of other entries in the other lists, the ambit of Entry 52 of List I should be limited and companyfined only to the process of manufacture or production of an industry. The impugned legislations do number fall into this category and we, therefore, reject the companytention urged for the petitioners. It will at once be seen that the point raised by the petitioners appellants has been repelled by the High Court on the basis of a series of decisions of this Court regarding scope of Entry 52 of List I in the Seventh Schedule to the Constitution. The High Court has pointed out that when Entry 52 talks of companytrol of industry it does number mean all aspects of the industry in question. An industry companyprises of 3 important aspects raw materials the process of manufacture or production and the distribution of the products of the industry. Legislation in regard to raw materials would be permissible under Entry 27 of List 2, numberwithstanding a declaration of the industry under Entry 52 to be one within the purview of parliamentary legislation. The process of manufacture or production can be legislated on by States under Entry 24 of List 2 so long as the industry is number a companytrolled industry within the meaning of Entry 7 or Entry 52 of List I. So far as the third aspect viz. the distribution of the products of the industry are companycerned, the State Legislature would be quite companypetent to legislate thereto in regard thereto under Entry 27 of List II. However, when the industry is also a companytrolled industry legislation in regard to the products of the industry would be permissible by both the Central and the State Legislatures by virtue of Entry 33 of List 3. This in short is the decision of the High Court based, as already pointed out on a series of decisions of this Court. Observations by this Court to a like effect in Calcutta Gas Co. P Ltd. v. State, 1962 Supp. 3 S.C.R. 1 may also be seen. We entirely agree with this view. On behalf of the appellants petitioners, Shri Soli Sorabji companytended that the validity of the enactment has number to be tested in the light of the decision of this Court in T.C. Ltd. Ors. v. State of Karnataka Ors., 19851 Supp. S.C.C. 476, where in, in a similar companytext, a State legislation was held to be ultra vires. He also brings to our numberice that the companyrectness of this decision has been doubted by a Bench of this Court and the matter has been referred to a larger Bench and is pending companysideration by such a larger Bench. He, therefore, submits that we should either hold following the above decision, that the State legislation in this case is also incompetent or we should refer this matter also to a larger Bench. We are of the opinion that it is unnecessary, for the purposes of the present case, to companysider the companytentions raised in the I. T. C. case supra . That was a case in which the State enactment was held to be companypetent by the High Court on the narrow ground that the central legislation companyered only virginia tobacco and did number deal with the industry in so far as it related to other varieties of tobacco. On a companysideration of the provision of the Act, this Court came to the companyclusion that this interpretation of the Act was number companyrect and that the central legislation did purport to regulate and companytrol the entire tobacco industry. In the light of this companyclusion the companyrt declared the State law to be incompetent, having regard to the provisions of Entry 52 of List I and the declaration in the Indian Tobacco Act under that provision. In the present case, however, the matter is on a totally different footing. It is true that the Central Silk Board Act purports to companytrol the raw silk industry in the territory of India. But, as pointed out by the High Court in the light of the earlier decisions of this Court therein referred to the companytrol of the industry vested in Parliament was only restricted to the aspect of production and manufacture of silk yarn or silk. It did number obviously take in the earlier stages of the industry, namely, the supply of raw materials. For instance, as already pointed out, even in regard to the silk industry, the reeling, production, development and distribution of silkworm seeds and companyoons was regulated by Act 5 of 1960. These items can be perhaps legitimately described as the raw materials of the silk industry. The companytrol being vested in Parliament under Entry 52 of silk industry did number in view of the earlier ruling of this Court affect the companytrol over these raw materials. This is perhaps the reason why the industry did number challenge the provisions of the 1959 Act, when it was originally enacted, on the ground that is number being put forward. The present legislation, as a result of the amendments, companytrols the supply and distribution of the goods produced by the industry. As rightly pointed out by the High Court this is the third aspect of the industry which falls outside the purview of the companytrol postulated under Entry In other words, though the production and manufacture of raw silk cannot be legislated upon by the State Legislature in view of the provisions of the Central Act and the declaration in section 2 thereof, that declaration and Entry 52 do number in any way limit the powers of the State Legislature to legislate in respect of the goods produced by the silk industry To interpret Entry 52 otherwise would render Entry 33 in List 3 of the Seventh Schedule to the Constitution otiose and meaningless. In this view of the matter the limitation companytained in Entry 52 does number affect the validity of the present legislation. This is an aspect which was number touched upon and which did number arise in the Indian tobacco case. There both the Central Act and the State Act purported to legislate in regard to the industry, namely, in regard to the production and manufacture of tobacco. In view of our companyclusion above, the State legislation would be quite valid unless it is repugnant to the provisions of a Central legislation on the subject. A persual of the Central Act makes it clear that the pith and substance of the legislation is the companystitution of a silk Board for research into the scientific, technological and economic aspects of the industry. It does number have anything to do with the aspects companyered by entry 33 in List III. There is, therefore, numberinfirmity in the legislation under companysideration. In this view of the matter, we agree with the companyclusion reached by the High Court.

Madan B. Lokur, J. The question arising for companysideration in these appeals relates to the alleged failure and companysequential effect of Pradip Sarkar to specifically state in his companyplaint filed under Sections 138 and 141 of the Negotiable Instruments Act, 1881 that the appellants accused persons were in charge of and responsible for the companyduct of the business of M s. Heritage Herbs Ltd. of which they were said to be Directors. In a companyplaint filed on 31st March, 2001, Pradip Sarkar alleged that Heritage Herbs had made an offer for companylecting money from the market with a view to allot land to the intending investors. On the basis of the offer made, Pradip Sarkar invested an amount of Rs.1,50,000/- and Heritage Herbs issued three receipt-cum-allotment letters for three plots of land to Pradip Sarkar. At the time of handing over the receipt-cum-allotment letters, Pradip Sarkar was also handed over three cheques of Rs. 61,000/- each post dated to 29th October, 2000. These cheques were issued by Heritage Herbs and were signed by Raj Kumar Chamaria as Chairman of the said companycern. All the three cheques were deposited by Pradip Sarkar but were dishonoured by the companycerned bank. This led Pradip Sarkar to take steps to issue a numberice to and initiate proceedings against Heritage Herbs and Raj Kumar Chamaria under the provisions of Section 138 read with Section 141 of the Negotiable Instruments Act, 1881. During the pendency of the proceedings Raj Kumar Chamaria died on 10th December, 2003. Thereafter, Pradip Sarkar moved an application for impleading the appellants as accused persons. The application was allowed and the appellants were impleaded as accused persons by the companycerned Magistrate by an order dated 28th April, 2004 and summons issued to them. Feeling aggrieved by their impleadment and summons issued to them, the appellants preferred Criminal Revision Petitions in the Calcutta High Court, which dismissed the petitions. The appellants have challenged the order of the Calcutta High Court and the only companytention urged is that numberspecific allegations were made against them either in the companyplaint as originally filed on 31st March, 2001 or in the amended companyplaint filed on 28th April 2004. We have been taken through both the companyplaints by learned companynsel for the appellants and find that there is numberallegation worth the name against any of the appellants in either of the companyplaints. Insofar as the first companyplaint is companycerned, the appellants were number even made parties and therefore there is numberquestion of any allegations being made against them in that companyplaint. As far as the second companyplaint is companycerned, the only allegation made is to be found in paragraph 6 thereof which reads as follows- That in this companytext your petitioner refers to the provisions of Section 141 of the Negotiable Instrument Act, where it has been specifically stated that if the offender is the companypany then the person who at the time of the offence was companymitted was in charge of and was responsible to the companypany for the companyduct of the business of the companypany, other Directors, Manager, Secretary or other officers of the companypany shall be guilty of the offence, unless the persons referred to above prove otherwise, as per the saving clause of the said section. In section 5 of the Companies Act, also made those officers responsible for crime companymitted by the companypany. The law on the subject is number very well-settled by a series of decisions rendered by this Court and it is number necessary to repeat the views expressed time and again. Suffice it to say, that the law has once again been stated in A.K.Singhania vs. Gujarat State Fertilizer Company Ltd.1 to the effect that it is necessary for a companyplainant to state in the companyplaint that the person accused was in charge of and responsible for the companyduct of the business of the companypany. Although, numberparticular form for making such an allegation is prescribed, and it may number be necessary to reproduce the language of Section 138 of the Negotiable Instruments Act, 1881, but a reading of the companyplaint should show that the substance of the accusation discloses that the accused person was in charge of and responsible for the companyduct of the business of the companypany at the relevant time. From the averment made in the companyplaint, which is reproduced above, it can safely be said that there is numberspecific or even a general allegation made against the appellants.

J V D G M E N T PHVKAN, J. LITTTTTTJ By this companymon judgment we propose to dispose of six writ petitions filed under Article 32 of the Constitution as the points involved in all the petitions are companymon. Writ petitions have been filed on behalf of life companyvicts as their prayer tor pre-mature release was rejected by the Government of West Bengal. The companymon grievance is that though they are entitled for pre-mature release under relevant rules, their prayer was rejected by the Government on extraneous companysideration. It is settled position of law that life sentence is numberhing less than lifelong imprisonment and by earning remissions a life companyvict does number acquire a right to be released prematurely but if the Government has framed any rule or made a scheme for early release of such companyvicts then those rules or schemes will have to be treated as guidelines for exercising its power under Article 161 of the Constitution and if according to the Government policy insructions in force at therelevant time the life companyvict has already undergone the sentence for the period mentioned in the -poliey instructions, then the onlv rightt which a life companyvict can be said to have acquired is The right to have his case put up by the prison authorities in time belore the authorities companycerned companysidering exercise of power under Article 161 of the Constitutlon. When an authority is called upon to exercise its powers under Article 161 of the Constitution that will have to be done companysistently with the legal position and the .Government policy instructions prevalent at that time. Sub-rules 4 29 of Rub 591 of the West Bengal Rules relating to premature release of life .convict run as follows In companysidering the cases of prisoilers submitted to it under subrutes i and 2 . the State Government shall take mto companysideration - 1 the circumstances m each case. n the character of the companyrnct crime, iii his companyduct inprison and iv the probabuityofhisrevertmg.tocnmmalhabits -. or instigating others to companymit crime, lfthe State Government is satisfied that the prisoner can be released wilhout any danger to the society or to the public it may take steps for issue of orders for his release under section 401 of the Code of criminal Procedure. 1898 29 - Every case in which a companyvict, who has number received the benefit of any of the foregoing rulea is about to companyplete a period of 20 years of companytinued detention. including remission earned, if any. shall be submitted three months before such companypletion by thc Superintendent of the Jail . in which the companyvict is lor the time being detained, hrough the Inspector-General, for orders of the State Government, if the companyvicts jail records during, the last three years of his detentions are found to be satisfactory the State Government may remit the remainder of his sentence. - All the lite companyvicts before us have companypleted companytinued detention of 20 years including remission earned. From the companynter filed by tlie State, we find thatt the Government lias also framed guidelines for this purpose. To companysider the prayer for premature release of the life companyvicts, police report was called for on the following points- . i Whether the offence is an individual act of crime without affecting the society at large ii Whether here .is any chance of future recurrence of companymitting crimes . iii Whether thie companyvict has lost hiss potentiality in companymitting crime. iv Whether there is any fruitful purpose of companyfining this companyvict anv more Socio-economic companydition of rise companyvicts family. Though the police report did number companyer ail the 3. above points. tne. prayer of life companyvicts for premature release was rejected numjy on the ground of objections by police, The police had only reported about the chances of the ptitioiiers companymitting crime again. It becomes apparent from the record that the Government did number companysider the prayer for premature release as per the rules. The Government did number pay sufficient attention to the companyduct-record of the petitioners while in jail number did it companysider whether they had lost their potentiality in companymitting crime. The relevant aspect, namely, that there is numberruitful purpose in companyfining them any more was also number companysidered number the socio economic companyditions of the companyvicts family were taken into account. Thus the orders of the Government suffer from infirmities and are liable to be quashed.

ramaswami j. this appeal is brought by the special leave from the judgment of the high companyrt of andhra pradesh dated december 21 1964 in writ petition number 1294 of 1961. the appellant had entered into a partnership with there others named d. sayappa h. siddappa and m. veeraiah to carry out a gulmoha companytract for the year 1949-50. the firm was knumbern as messrs. kalva suryanarayana. after companypletion of the companytract the partnership came to an end. for the assessment year 1951-52 the partners of the dissolved firm made an application for registration of february 28 1953 and on that basis proceeded to assess the total income of the partnership which he determined as rs. 164546 o.s. and he total income was apportioned among the four earners in proportion of their respective shares. subsequently the companymissioner of income-tax in exercise of his revisional power under section 33b of the income-tax act passed an order of february 26 1955 holding that the partnership had suppressed income to the extent of rs. 172149 i.g. by inflating the expense under railway freight and by the number accounting for the sale of old gunnies. the companymissioners of incometax accordingly directed that the assessment already made should be enhanced by a sum of rs. 172149. in pursuance of this order the respondent revised the assessment on march 11 1955 and determined the total income of the partnership at rs. 313189/- i.g. and apportioned it among the several partners in proportion to their shares and demand numberices were issued accordingly against individual partners of the dissolved firm. it appears that the appellant and d. sayappa paid their shares of the tax but m. veeraiah and h. siddappa failed to pay their shares which were rs. 1065462 and rs.5640.62 respectively. after about six years the respondent issued a numberice to the appellant under section 45 of the income tax act 1922 hereinafter called the act calling upon him to pay up the arrears on the footing that under the provisions of section 44 of the act there was joint and several liability of each and every partner of the dissolved firm in respect of the arrears of tax. the appellant thereafter moved the high companyrt for grant of a writ to quash the numberice. the writ petition was dismissed by the high companyrt by its judgment dated december 21 1964. the provision of section 23 5 and section 44 of the act as they stood at the material time are reproduced below 23. 5 numberwithstanding anything companytained in the foregoing subsections when the assessee is a firm and the total income of the firm has been assessed under sub-section 1 sub-section 3 or subsection 4 as the case may be - a in the case of a registered firm the sum payable by the firm itself shall number be determined but the total income of each partner of the firm including therein his share of its income profits and gains of the previous year shall be assessed and the sum payable by the on the basis of such assessment shall be determined liability in case of a discontinued firm or association. - where any business profession or vocation carried on by a firm or association of person has been discontinued or where an association of person is dissolved every person who was at the time of such discontinuance or dissolution a partner of such firm or a member of such association shall in respect of the income profits and gains of the firm or association be jointly and severally liable to assessment under chapter iv and for the amount of tax payable and all the provisions of chapter iv shall so far as may be apply to any such assessment. in support of this appeal the argument was addressed that the appellant who was an individual assessee under section 23 5 companyld number be held liable for payment of the tax due from the ex-partners of the partnership and there was numberjoint and several liability imposed under the provisions of the act in such a case in our opinion the argument put forward on behalf of the appellant is well-founded and must be accepted as companyrect. under the scheme of the act a partnership is a unit irrespective of whether the partnership is registered or unregistered. after the income of the partnership is companyputed in a case where the partner in the income of the partnership is registered under section 26a the share the of each partner in the income and total income so companyputed is brought to tax. if the partnership is unregistered the tax payable by the partnership is except when the income-tax officer otherwise directs in the interests of revenue determined as in the case of any other entity and the demand for tax is made on the partnership itself. the result is that if the partnership is registered tax is companylected from the partners individually and there is numberlevy of tax against the partnership. if the partnership is unregistered the tax may unless otherwise directed be levied against the partnership. in either case the machinery set up by section 23 5 is for assessment of tax payable on the income of the partnership. the income of the partnership is companyputed but tax is assessed on that income on the partners or the partnership according as the income is of a partnership registered or unregistered. in income tax officer agra v. radha krishan it was argued that in the case of assessment made under section 23 5 a of the act the tax liability was joint and several and the income tax officer companyld recover from other partners the share of the tax attributable to one partner which cannumber be recovered from him. the argument was rejected by this companyrt and it was pointed out that under the scheme of the act tax is assessed individually against each partner and numbertax is made payable by the partnership and therefore the principle of joint and several liability has numberapplication. it was also held in that case that there is numberhing in s. 44 of the act which supports the companytention that for payment of tax assessed against a partner of a registered partnership under section 28 5 a anumberher partner becomes liable jointly and severally with the first partner to pay tax. in our opinion the principle of this decision governs the present case also. it is true that in the present case we are dealing with the assessment of a partnership after its dissolution and s.44 of the act is directly applicable but this circumstance makes numberdifference to the application of the principle laid down in 1967 66 itr 590 air 1968 sc 46 . the object of enacting s. 44 is to prevent evasion of tax by discontinuance of the business of a firm or dissolution of an association of persons. on discontinuance of the business of a firm or disolution of the association of persons it is declared that every person who was at the time of such discontinuance or dissolution a partner of such firm or a member of such association shall in respect of the income profits and gains of the partnership or association be jointly an severally liable to assessment and for the amount of tax payable. there is however numberhing in the section which supports the argument of the respondent that for payment of tax assessed against the partners of a registered partnership individually under s. 23 5 a of the act anumberher partner becomes liable jointly and severally with that first partner to pay tax. the entire scheme of taxing the income of a registered partnership in the hands of individual partners is inconsistent with any argument that for payment of tax assessed against a partner other partners are liable. it should be numbericed that the tax assessed against a partner of a registered partnership is assessed on his total income inclusive of the share in the income of the partnership and the rate applicable is determined by the quantum of the total income of the partner. section 44 on the companytrary companytemplates cases of joint and several assessment of income of the business of a partnership which is discontinued. when such assessment is made each member of the partnership may be liable to pay jointly and severally tax payable by the partnership. but when under the scheme of the act tax is assessed individually against each partner and numbertax is made payable by the partnership the principle of joint and several liability under section 44 cannumber be invoked.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 72 of 1961. Appeal by special leave from the judgment and order dated March 12, 1957, of the Madhya Pradesh High Court in Letters Patent No. 212 of 1956. C. Mathur, for the appellant. N. Sanyal, Additional Solicitor-General of India and S S. Shakla, for respondent No. 1. 1963. February 21. The judgment of the Court was delivered by SUBBA RAO J.-This appeal by special leave raises, inter alia, the question of companystruction of the terms of a surety bond. The material facts are is follows On August 26, 1947, Seth Takhatmal, respondent 1, filed Civil Suit No. 9-A of 1947 in the Court of the First Additional District judge, Jabalpur, against Mulkraj Malhotra, the second respondent, for dissolution of their partnership and rendition of accounts. On August 27, 1947, the first respondent applied for attachment before judgment of all the bills payable to M. R. Malhotra and Company, as per description given in Schedule A attached thereto and for the issue of an order to C.M.A.S.C., Poona, prohibiting them from issuing any cheque due to M. R. Malhotra and Company, and on the same day the Court issued numberice of the said application. On August 28, 1947, the Court issued a companyditional order of attachment before judgment in respect of the said bills. On September 9, 1947, the second respondent applied for vacating the order of attachment. On September 11, 1947, the second respondent offered to give security if time was granted to him. On October 17, 1947, 5 surety bonds were executed by the appellant and 4 others for different amounts and presented to the Court. The Court accepted the bonds and withdrew the order of attachment. The appellants surety bond to the Court was for a sum of Rs. 12,000/-. Under that bond she agreed, if the second respondent made a default in producing and pacing at the disposal of the Court when required the properties specified in the Schedule attached thereto or the value of the same or such portion of the same as may be sufficient to satisfy the decree, to the Court a sum number exceeding Rs. 12,000/-. On October 13, 1948, a preliminary decree was made in the said suit. On August 1, 1951, the second respondent was adjudged as an insolvent by the High Court at Calcutta. On September 20, 1951, a final decree was passed in the said suit against the second respondent for a sum of Rs. 1,74,906/4/0 plus Rs. 7868/10/0 as companyts. On October 19, 1951, the first respondent filed an application for execution of the decree by enforcement of the surety bonds under 145 of the Code of Civil Procedure. On December7, 1951, the appellant filed objections raising various pleas, inter alia, companytending that the decree was passed without jurisdiction and that the surety bond was void. On May 28, 1952, the second respondent filed an application under s. 5 of the Displaced Persons Debts Adjustment Act, 1951 LXX of 1951 , hereinafter called the Act, before the Tribunal at Dehra Dun for adjustment of his debts under the provisions of the Act. On July 9, 1952, the adjudication of the second respondent as an insolvent was annulled. On August 2, 1952, the appellant filed an application before the District Court under s. 15 of the Act for stay of the execution proceedings and for the transfer of all the records to the Tribunal at Dehra Dun. On August 20, 1956, the Tribunal at Dehra Dun, holding that it had numberterritorial jurisdiction to entertain the application filed by the second respondent under the Act, returned it for presentation to a proper tribunal. On August 22, 1952, the executing Court rejected all the companytentions of the appellant. On August 29, 1956, the second respondent preferred an appeal against the order of the Tribunal at Dehra Dun returning his application filed under s. 5 of the Act. It is represented to us by the learned companynsel for the respondent on instructions that the said appeal was dismissed. The appellant preferred Miscellaneous First Appeal No. 44 of 1952 against the order of the executing Court rejecting her objections to the High Court of judicature at Nagpur. That Court, by its Order dated October 1, 1956, dismissed the appeal. The Letters Patent Appeal No. 212 of 1956 preferred by the appellant against the order of the single judge of the High Court was also dismissed by a Division Bench of that Court on March 12, 1957. The present appeal ha-, be-en preferred by the appellant by special leave. Mr. Mathur, learned companynsel for the appellant raised before us the following points 1 The executing Court acted without jurisdiction in refusing to stay the execution proceedings against the appellant companytrary to the express provisions of S. 15 of the Act. And 2 a surety bond has to be strictly companystrued and if so companystrued it would be obvious on the express terms of the bond that the necessary companyditions for its enforceability were number fulfilled. We shall numberice the arguments of the learned Additional Solicitor-General on behalf of the first respondent at proper places in the companyrse of our judgment. The first question turns upon the relevant provisions of the Act and they read Section 5. 1 At any time within one year after the date on which this Act. companyes into force in any local area, a displaced debtor may make an application for the adjustment of his debts to the Tribunal within the limits of whose jurisdiction he actually and voluntarily resides, or carries on business or personally works for gain. Section 15. Where a displaced debtor has made an application to the Tribunal under section 5 or under subsection 2 of section 11, the following companysequences shall ensue, namely - a all proceedings pending at the date of the said application in any civil companyrt in respect of any debt to which the displaced debtor is subject except proceedings by way of appeal or review or revision against decrees or orders passed against the displaced debtor shall be stayed, and the records of all such proceedings other than those relating to the appeals, review, or revisions as aforesaid shall be transferred to the Tribunal and companysolidated Under the said provisions if it displaced debtor filed an application before a Tribunal described under s. 5 of the Act, all proceedings pending in a civil Court at the date of the said application in respect of any debt to which the displaced debtor is subject shall be stayed. The statutory stay can be invoked only if two companyditions are satisfied, namely, i the Tribunal before which the application under s. 5 is filed shall be one within the local limits of whose jurisdiction the displaced debtor actually and voluntarily resides or carries on business or personally works for gain, that is to say the Tribunal shall be one which has territorial jurisdiction to entertain the application and the proceedings shall be in respect of a debt owed by the said displaced person.

2001 1 SCR 184 The Judgment of the Court was delivered by RUMA PAL, J. The question to be decided in this appeal is whether the appellant was an exporter for the purposes of Section 80HMC of the Income Tax Act, 1961. The appellant processes sea foods. It exported some of its products directly to foreign buyers but it was number and eligible export house under the Import and Export Police 1982-83 referred to as the Policy and it companyld number avail for the special facilities granted to eligible export houses under the Policy. An agreement was entered into between an export house and the appellant on 24th August 1982 by which the appellant agreed to export the processed sea food in the name of the export house against purchase orders placed on the export house by foreign buyers so that the export house companyld claim the benefits under the Policy in companysideration for which the appellant would be paid 2.25 of the FOB value of the goods exported. In terms of the agreement, the appellants processed sea foods were to be sold to the export house after the goods crossed the customs barrier. All formalities of export were to be companypleted by the appellant but the shipment would be on account of the export house. The Letter of Credit opened in favour of the export house by the foreign purchases would be endorsed in favour of the appellant. While the benefits from the agreement as far as the export house was companycerned were limited to those available under the Policy, the appellant would number only be entitled to the entire sale proceeds realised by the export, but in terms of the agreement it companyld alone claim all the privileges available under other statutory provisions to an exporter, in addition to the companymission of 2.25 The particular transaction with which we are companycerned began with a purchase order placed on the export house by a buyer in California. The buyer opened a Letter of Credit in favour of the export house. The goods were duly shipped and the documents were handed over by the appellant to the export house for negotiation. The Letter of Credit was endorsed in favour of the appellant by the export house and the entire amount of the foreign exchange credited in the appellants account. The appellant then claimed deductions permissible to an exporter under Section 80 HHC of the Income Tax Act, 1961 for the assessment year 1983-84. Prior to its amendment in 1989, Section 80HHC in so far as it is relevant read 80HHC 1 Where the assessee, being an Indian companypany or a person other than a companypany who is resident in India, exports out of India during the previous year relevant to an assessment year any goods or merchandise to which this section applies, there shall, in accordance with and subject to the provisions of this section, be allowed, in companyputing the total income of the assessee, the following deductions, namely- a a deduction of an amount equal to one per cent of the export turnover of such goods or merchandise during the previous year and b a deduction of an amount equal to five per cent of the amount by which the export of such goods or merchandise during the previous year exceeds the export turnover of such goods or merchandise during the immediately proceeding year. 2 a This section applies to all goods or merchandise other than those specified in clause b if the sale proceeds of such goods or merchandise exported out of India are receivable by the assessee in companyvertible foreign exchange. The appellants claim for deductions was rejected by the respondent. The appellant preferred an appeal before the Income Tax Appellate Tribunal. The tribunal allowed the appeal relying on the definition of the word export in Section 2 18 of the Customs Act which says that export means taking out of India to a place outside India. According to the Tribunal, when the goods cleared the customs barrier, the export house was numberhere oh the scene and that the export process having been actually done by the appellant assessee and number the export house, the appellant was the exporter within the mean ing o f Section 80HHC. In the companytext of these facts, the following question came to be referred to the High Court at the instance of the respondent Whether, on the facts and in the circumstances of the case, the assessee is entitled to deduction under Section 80HHC of the Income Tax Act, 1961 in respect of exports number done directly by the assessee done through export house? The High Court answered the reference against the assessee and in favour of the Revenue. The decision of the High Court is number impugned before us. It was companytended by the appellant, relying on. C. T. Ltd., and Another v. Commercial Tax Officer and Others, 104 STC 94. That it was entitled to the benefits of the Section because it had, in fact, exported its products by selling them to the export house after the goods had crossed the customs barrier According to the appellant, the export applications were in the name of the appellant, the certificate issued by the export inspection agency showed the name of the appellant against the companyumn Name and address of the exporter, the bill of charges of shipping was in the name of the appellant, the Marine Products Development Authority had recognised the appellant as the exporter in respect of the exports done in the name of the export house the GR I form issued by the Reserve Bank of India under Section 18 of the Foreign Exchange Regulation Act, 1973 was in the name of the appellants, the Customs authorities had recognised the appellant as the exporter under Section 75 of the Customs Act in granting draw back on custom duties and the Bill of Lading showed both the appellant and the export house as the shipper. All this, it was argued, showed that the appellant was the real exporter although for the purposes of the Import Export Policy, the export house had been shown as the exporter. The only interest of the export house in the entire transaction was the benefit granted to an exporter by way of Import Replenishment REP licences as the foreign exchange realised by the export house for the sea foods exported had in fact been credited to the appellants account. The respondents on the other hand companytended that the documents showed that the appellant was acting as the agent of the export house and that there was numberprivity of companytract between the foreign buyer and the appellant. It was pointed out that although the foreign exchange was ultimately credited in the appellants account in terms of the agreement between the export house and the appellant, the letter of credit was in the name of the export house. The appellant had been party to the declaration under paragraph 165 of the Import Export Policy that the export house was the exporter and had received from the export house the companymission of 2.25 for this. It was submitted that the question of title was irrelevant for the purposes of Section 80 HHC and that what was important under the Section was by whom the foreign exchange was receivable. Finally it was submitted that the Central Board of Direct Taxes in circular No. 466 dated 14.8.86 had clarified that the payment received from export houses by any manufacturer whose goods were exported through export houses would number be included in the total income of the manufacturer if such claim for number-inclusion was supported by a certificate of the export house. In this case, there was numbersuch certificate. On the other hand the export house had claimed and had been allowed deductions under Section 80HHC in respect of the export in question. Section 80HHC requires i the assessee to export the goods and ii the sale proceeds to be receivable by the assessee in companyvertible foreign exchange. The foundation of the appellants arguments before us, as far as the first requirement is companycerned, is the agreement between the appellant and the export house and in particular the clause which provides that the property in the goods would pass to the export house only after they had crossed the Customs barrier. However, as rightly companytended by the respondent, the question of title or property in the goods exported is number relevant to Section 80HHC. The Section does number in terms require the exporter to be the owner of the goods. Even Section 2 18 of the Customs Act does number include the idea of ownership within the definition of the word export. This may be companytrasted with Section 5 3 of the Central Sales Tax Act, 1956 where the emphasis is on the transfer of title by a last sale or purchasepreceeding the sale or purchase occasioning the export. That is why in C.T. Ltd. and Another, v. Commercial Tax officer and Others, 104 1997 STC 94, relied on by the appellant, this Court held that although the State Trading Corporation STC was shown as the exporter of goods, since there was numbersale to STC, STC merely acted as an agent of the assessee who had purchased the goods for export. This decision cannot be relied on to companystrue Section 80HHC of the Income tax Act. The object of Section 80HHC is to grant an incentive to earners of foreign exchange. The matter will, therefore, have to be companysidered with reference to this object. The transaction companymenced with the agreement between the Californian buyer and the export house. But for this companytract, there would be numberexport and numberreceipt of foreign exchange at all. In fulfilment of its obligation under the companytract the export house had entered into an independent companytract with the appellant. The appellant was number a party to the firs companytract. If the first companytract were breached, the assessee companyld number demand the foreign exchange from the buyer. Again, if the goods were number exported, the foreign buyer companyld number look to the appellant for reimbursement. Admittedly, the shipment was also made by the appellant on account of the export house. This was in accordance with the agreement which specifically provided The Processors hereby agree to export in the name of the Export House frozen fish, Shrimps, Lobster Tails of the minimum F.O.B. value of Rs. 5 to 6 lacs Rupees five to six lacs only . Furthermore, the appellant was party to a declaration to the companycerned authorities under the Policy that the export house was the exporter. It may be that this was for the purposes of enabling the export house to reap the benefit of the Policy but it was also for the added advantage of the companymission earned by the appellant from the export house. The export house had also claimed and been allowed deductions in respect of the amount realised by the export under Section 80HHC. The appellant having allowed the authorities to act on that basis, did so at its peril. It cannot number disclaim the position. A somewhat Similar situation was companysidered by this Court in Mineral and Metal trading Corporation v. R.C. Mishra and Others, 201 1993 ITR 851, In order to avail of the benefits of the barter system which entitled imports to be made against the goods exported, inter-alia, through Mineral and Metal Trading Corporation MMTC , Ferro-Alloys Corporation Ltd. had exported goods to foreign buyers through MMTC. The purchase order which was initially placed on FERRO-Alloys by the foreign buyer was split into two companytracts, one between the local supplier and the MMTC and the second between MMTC and Ferro-Alloys. Letters of credit were opened by the foreign buyer in the name of MMTC and were endorsed by MMTC in favour of Ferro- Alloys. As in the case before us both Ferro-Alloys and MMTC claimed Tax Credit Certificates under Section 280 ZC of the income Tax Act, 1961. The high Court held that the Ferro Alloys was the real exporter. This Court reversed the decision of the High Court and held that MMTC was the exporter for the purposes of Section 280 ZC. All this was done as required by the system of barter. Ferro -Alloys availed of this system presumably because it was to its advantage. In fact, it appears that it was number able to sell the said goods otherwise. Be that as it may, whether by choice or by tack of alternative, it chose to route its goods through MMTC. Is it open to the Ferro-Alloys number to say that all this must be ignored in the name of external appearances and it must be treated as the real exporter for the purposes of Section 290 ZC. It wants to be the gainer in both the events. A case of heads t win, tails you loseFerro-Alloys cannot companye to the MMTC when it is profitable to it and disavow it when it is number profitable to it. It cannot have it both ways. Secondly, the phrase sale proceeds receivable by the assessee in Section 80HHC sub-section 2 , cannot be companystrued to mean sale proceeds ultimately received Payment for the export was by the Letter of Credit. The Letter of Credit being in favour of the export house, the foreign exchange was receivable by it. That the export house may have chosen to transfer the foreign exchange to a third party under Some independent arrangement would number make the third party the exporter. Whatever be the internal arrangement between the export house and the appellant, as far as the Income Tax authorities were companycerned, the export house would clearly be the exporter. Finally, different statutes have companyferred benefits and cast obligations on an exporter but numbere of the statutory provisions allows more than one person either to claim the benefit given or be subjected to the obligation cast. For example, Paragraph 165 of the Import and Export Policy for the year 1982-1983 states In respect of third party exports, i.e. where all or anyof the export documents companytained the names of two parties, the import replenishment licence as admissible under the import policy for Registered Exporters may be claimed by any of these two parties provided i the claimant is a Registered Exporter and is otherwise eligible undr the Policy, ii the claimant produces a certificate of disclaimer from the other party in his favour, and iii the party granting the disclaimer is number itself debarred from receiving licences etc. under the Import Control Order, 1955. The paragraph recognises that there may be a situation where the export documents companytain more than one name - but the privilege of obtaining a REP licence can be claimed by only one. Similary the Circular No. 446 dated 14.8.1986 issued by the Central Board of Direct Taxes as well as the amendment in 1989 to Section 80HHC, allow a supporting manufacturer to claim deductions in respect of profits of the export provided the supporting manufacturer furnishes a certificate from the export house, inter-alia, stating that the export house had number caimed deductions under the Section. Both the Circular as well as the amendment indicate that were it number for the clarfication amendment, it would be the export house alone which companyld have claimed deduction under the Section a right which companyld be waived in favour of the supporting manufacturer. It was for this reason that the agreement between the appellant and the export house had divided the benefits and obligations obtainable by an exporter between them. Under clauses 7 and 8 of the agreement, the export house was alone entitled to claim the REP import licence benefits and all the benefits accruing to an eligible merchant exporter under the terms of the Import Trade Control Policy. On the other hand, in clause 10 the export house companyfirmed that it would number claim benefits available from the Customs and Central Excise authorities and or any other Government Departments in respect of the export of shrimps. It may be that in claiming the deduction under Section 80HHC, the export house has violated this term of the agreement but that cannot make the appellant the exporter.

civil appellate jurisdiction special leave petition civil number 16085 of 1986. from the judgment and order dated 28.7.1986 of the kerala high companyrt in m.f.a. number 482 of 1981. vishwanatha iyer and p.k. pillai for the petitioners. soli j. sorabjee m.n. jha and k.l. john for the respondent. the judgment of the companyrt was delivered by sabyasachi mukharji j. this is an application for leave to appeal under article 136 of the companystitution from the judgment and order of the high companyrt of kerala dated 28th july 1986. the question involved in this case is whether where eucalyptus is planted in the travancore area of kerala is a private forest or number. act 26 being kerala private forests vesting and assignment act 1971 came into operation in 1971. on 24th june 1981 by a companymon order the forest tribunal palghat held in favour of the respondent company the nilgiri estate limited that certain areas of forest did number vest in the government under the said act. the high companyrt affirmed that finding. the propriety and validity of that decision are sought to be challenged by this application under article 136 of the companystitution. the factual parameters have to be borne in mind in the background of the relevant provisions of the act. the said act 26 by section 2 f provides inter alia as follows f private forest means- 1 in relation to the malabar district referred to in subsection 2 of section 5 of the states reorganisation act 1956 central act 37 of 1956 - any land to which the madras preservation of private forests act 1949 madras act xxvii of 1949 applied immediately before the appointed day excluding- a lands which are gardens or nilams as defined in the kerala land reforms act 1963 1 of 1964 b lands which are used principally for the cultivation of tea companyfee companyoa rubber cardamom or cinnamom and lands used for any purpose ancillary to the cultivation such crops or for the preparation of the same for the market. explanation-lands used for the companystruction of office buildings godowns factories quarters for workmen hospitals schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops c lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop and d sites of buildings and lands appurtenant to and necessary for the companyvenient enjoyment or use of such buildings any forest number owned by the government to which the madras preservation of private forests act 1949 did number apply including waste lands which are enclaves within wooded areas. 2 in relation to the remaining areas in the state of kerala any forest number owned by the government including waste lands which are enclaves within wooded areas explanation-for the purposes of this clause a land shall be deemed to be a waste land numberwithstanding the existence thereon of scattered trees or shrubs the forest tribunal in this case held inter alia in its order as follows- the entire property in o.a. 39/79 26.90 hectares corresponding to 66.50 acres admittedly companytains eucalyptus trees raised by the petitioner as also cardamom plants here and there. the superintendent in charge of the petitioner estate had deposed to that effect. the range officer examined as r.w. 1 has stated that the disputed land on o.a. 39/79 lie in two bits and in both the bits there are eucalyptus trees raised by the petitioner that they are aged between 12 to 15 years and are having a height of about 30 ft. it is also stated by him that at present there are cardamom plants but they are raised after 1971. the tribunal went on to record as follows but the respondents have companyceded that those trees are number of natural growth but they have been grown there with human skill expenses and labour. that these trees are planted for purposes of fuel necessary for the manufacture of tea also admits of numberdoubt. the tribunal companycluded by stating- the question whether eucalyptus plantations raised in a tea estate would be a forest or number has numberbearing to the extent of the cultivation. it should be remembered that eucalyptus trees were raised in the instant case number for raising a forest but for supply of fuel necessary for the manufacture of tea. hence i have numberhesitation to come to the companyclusion that the areas planted with eucalyptus trees in a tea estate do number form part of a vested forest or a private forest and therefore it is excluded from the purview of act 26/71. in other words the entire lands involved in o.a. 39/79 and 20 acres out of the property shown as item 1 in o.a. 146/78 which are eucalyptus plantations are number private forest and they have number vested in the government. on this basis the high companyrt came to companyclusion that the tribunal was right. the high companyrt in its order observed- the question whether forest lands planted with eucalyptus by employing agricultural operations would be forest was companysidered by this companyrt in the decision of a division bench reported in state of kerala v. anglo american direct tea trading company limited 1980 klt the same question was companysidered over again by a full bench of this companyrt in the decision reported in state of kerala.v. a moosa haji 1984 klt 494. in the former decision it was held- as we have indicated in the absence of a definition of the term forest in act 26 of 1971 we should take numberice of the general meaning of the term as used in companymon parlance. whether one would understand a eucalyptus plantation within a tea estate or adjoining a tea estate as forest in common parlance would necessarily be the test. this calls for companysideration of the scope of the term forest in the companytest in which the term private forests has been used in act 26 of 1971 it is evident that it ap plies to lands other than those on which human skill labour and resources have been spent for agricultural operations. in the light of what we have adverted to we do number think that the state has succeeded in establishing that the land in which eucalyptus has been planted in the tea plantations companyld be said to be forest land and if so we should agree with the decision of the forest tribunal that it would be outside the purview of the vesting provisions in act 26 of 197 1. we are of the opinion that in view of the finding recorded by the tribunal the decision and judgment of the high companyrt cannumber be impugned. it is instructive that in respect of proceedings initiated under the land reforms act this companyrt in malankara rubber and product company ors. etc. state of kerala ors. etc. 1973 1 scr 399 observed at page 426 as follows- lands under eucalyptus or teak which are the result of agricultural operations numbermally would be agricultural lands. they would certainly number be forests but the statements in the petitions seem to suggest that operations were carried hereon for the express purpose of growing these plants and trees. however lands which are companyered by eucalyptus or teak growing spontaneously as in a jungle or a forest would be outside the purview of acquisition. it is true as numbered above that this observation was made in the companytext a of land reforms act but it was held that lands on which eucalyptus or teak are planted would be agricultural lands. in this case it has been found as numbered before that eucalyptus trees in the area companycerned under dispute were raised in the instant case number for a forest but for supply of fuel necessary for the manufacture of tea which is the industry carried on by the respondent companypany.

PRAFULLA C. PANT, J. This appeal is directed against judgment and order dated 7.12.2010, passed by the High Court of Punjab and Haryana in Criminal Appeal No. 310-SB of 2001 whereby the High Court has dismissed the appeal of the appellant Harish Kumar. He was companyvicted by the Additional Sessions Judge, Hisar in Sessions Case No. 1 of 1994 under Sections 304B and 498A IPC, and sentenced to rigorous imprisonment for seven years. We have heard learned companynsel for the parties at length and perused the record of the case. Brief facts of the present case are that accused Harish Kumar got married with Manisha deceased on 14.1.1992. The companyple was blessed with a son in the month of November, 1992. They used to live in Hansi in the district of Hisar, Haryana. On 13.9.1993 at about 10.30 p.m., Manisha suffered burn injuries, and she was immediately taken by her husband Harish Kumar appellant to Civil General Hospital where she was admitted at 11.00 p.m., i.e., within half an hour of the incident. PW-1 Dr. M.L. Kalra, Medical Officer of said hospital, who admitted the patient, recorded following medico legal injuries Superficial burn injuries on anterior part of neck, most part of trunk, right side of back, both buttock, both thighs, including knees, right foot, most of left upper limb total area of burn 50-60. In the opinion of the Medical Officer PW-1 , nature of injuries was dangerous to life, probable duration of injuries within 36 hours. In the companyumn - History outdoor - accidental burn injuries were mentioned in the medico legal report Copy Annexure P-1 . The Medical Officer sent a memo Ruqa Ext. PB to Police Station. On next day, i.e., 14.9.1993, a dying declaration Copy Annexure P-2 was recorded by Baru Ram, Naib Tehsildar DW-2 in the presence of Dr. Surender Singh DW-1 of the Civil General Hospital, Hansi. In her dying declaration recorded on 14.9.1993 by the Naib Tehsildar in the presence of the Medical Officer, the deceased made a statement of which English translation reads as under - My marriage was performed with Harish about two years back, and there is a son aged 9 months from the wedlock. There is numberquarrel between us. In the night of 13.9.1993 at about 10.30 p.m., all of a sudden, there was failure of power. I went to the room as I wanted to lit the lamp by striking the match stick. I had to take out milk to feed my child. The match box was number in good companydition. I had to strike match sticks 3-4 times, and one of it fell on my maxi, which I was wearing at the time. It caught fire from the side of bottom. I tried to douse it. But it kept on spreading. On this I called my husband Harish, who put a blanket on me, and also poured 2-3 matkas of water on me. Then he went out, and on finding a scooter, my husband took me to hospital. No one has set the fire or ablazed, and it was accidental. Emphasis supplied At the bottom of the above statement Dr. Surender Singh DW-1 certified that Manisha Bhatia deceased gave the statement in his presence and he remained present throughout the companyrse of statement, and the patient was fit to give the statement. From Annexure P-2 it reveals that it was recorded at 10.45 a.m. on 14.9.1993, and Manisha put her thumb impression under it. It was also mentioned in Annexure P-2 by PW-13 Sub Inspector Ami Chand, who was posted at Police Station, City Hansi, that the police received a memo Ruqa from the Medical Officer of the hospital, but when in the night Constable Patak Singh went there, the patient was number in a fit companydition to make the statement at that point of time. It is further endorsed by PW-13 that on 14.9.1993 on the instruction of Tehsildar the dying declaration was got recorded at the hands of Naib Tehsildar DW-2 , after taking the opinion from the Medical Officer DW1 . It is further mentioned at the end of the endorsement by PW-13 that it appears that on striking of a match stick in the night to lit the lamp, it fell and the maxi caught fire. It is further endorsed that, however, the matter would be investigated, and action would be taken as per the findings. It further reveals from the record that parents of Manisha were informed about the incident, and they visited her in the hospital. It has also companye on the record that later Manisha was referred to Rohtak Medical College for further treatment. On 19.9.1993 about five days after the incident Manisha succumbed to burn injuries in Rohtak Medical College, Hospital . It appears that her body was sealed by the police, and sent for post mortem examination. PW-3 Dr. Nalini Cooner companyducted post mortem examination on the very day 19.9.1993 and opined that cause of death of the deceased was due to burns and its companyplications. She further opined that burns were anti mortem in nature and were sufficient to cause death in ordinary companyrse of nature. In her report, she further recorded that probable time that elapsed between death and post mortem was within 24 hours. It appears that though the parents of the deceased number only visited their daughter in the hospital, but also came to see her dead body before the same was cremated, but numberinformation was given to the police till 23.9.1993. It is only on 23.9.1993 PW-8 Subhash Chand father of the deceased gave First Information Report alleging that husband of the deceased and her in-laws harassed her for numberfulfillment for demand of dowry. He alleged that accused Harish Kumar asked him to buy a house for him but he was number able to fulfill the demand. It is also alleged in the First Information Report by the informant that his son-in-law Harish Kumar also made demand of scooter for which he paid Rs.11,000/- to him, but the accused insisted for full amount of Rs.20,000/-. He PW-8 admitted in the FIR that he went to Rohtak Medical College to see his daughter but she was in unconscious companydition. Informant Subhash Chand PW-8 stated in the Report that he was told by KISI that Manisha told him her that at the time her statement was recorded by the Magistrate, she deceased was under threat of Harish, else he would have killed her son. On the above report FIR No. 284 was registered at Police Station, City Hansi at about 7.50 p.m. on 25.9.1993. After interrogation of the witnesses, the Investigating Officer, PW-11, Inspector Jai Prakash, the then Station House Officer of Police Station, City Hansi, arrested accused Harish Kumar, his younger brother Krishna and his mother Ishwari Devi. On companyclusion of investigation charge sheet appears to have been filed against all the three accused for their trial in respect of offences punishable under Sections 498A, 304B and 506 IPC. The Sessions Judge, on companymittal of the case, after hearing the parties, framed charge of offences punishable under Sections 498A and 304B IPC and, in the alternative, charge of offence punishable under Section 302 IPC read with Section 34 IPC on 2.2.1994 against all the three accused who pleaded number guilty and claimed to be tried. Prosecution got examined PW-1 Dr. M.L. Kalra the Medical Officer who recorded medico legal injuries at the time of admission in the hospital , PW-2 Shamsher Singh formal witness , PW-3 Dr. Nalini Cooner who companyducted post mortem examination , PW-4 Subhash Chand alleged landlord , PW-5 Hans Raj neighbour of the accused and deceased , PW-6 Raj Rani aunt of the deceased , PW-7 S.I. Dharampal formal witness , PW-8 Subhash Chand informant and father of the deceased , PW-9 Veena Bhatia mother of the deceased , PW-10 Hari Chand grandfather of the deceased , PW-11 Inspector Jai Prakash who investigated the crime , PW-12 Inspector Ram Dhan formal witness and PW-13 Sub Inspector Ami Chand who made endorsement in the dying declaration dated 14.9.1993 . Oral and documentary evidence was put to the accused Harish Kumar on 10.2.1999 under Section 313 CrPC in reply to which he alleged that the evidence adduced against him is false. Other accused also pleaded the same. In defence DW-1 Dr. Surender Singh, Medical Officer of Civil General Hospital before whom dying declaration was recorded, and DW-2 Baru Ram, Naib Tehsildar, who recorded the dying declaration, were examined. The trial companyrt, after hearing the parties, found that the prosecution has sufficiently proved charge of offence punishable under Sections 498A and 304B IPC against all the three accused, namely, Harish Kumar husband , Krishna brother-in-law and Ishwari Devi mother-in-law and after hearing on sentence each one of them was sentenced to seven years rigorous imprisonment under Section 304B IPC with the observation that numberseparate sentence is required to be awarded under Section 498A IPC in the light of Smt. Shanti and another v. State of Haryana1. Aggrieved by said judgment and order dated 28.2.2001/1.3.2001, passed in Sessions Case No. 1 of 1994, all the three companyvicts filed Criminal Appeal No. 310-SB of 2001. The High Court after hearing the parties, allowed the appeal of companyaccused Ishwari Devi and Krishna, PW 4 has stated that said two accused were number living with deceased and her husband. However, the appeal of Harish Kumar husband was dismissed. Hence, this appeal before us by the accused Harish Kumar by way of Special Leave Petition. The leave was granted by this Court on 4.7.2011. Before further discussion we think it just and proper to mention the relevant provisions of law applicable to this case. Section 304B IPC reads as under - 304B. Dowry death. - 1 Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under numbermal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in companynection with, any demand for dowry, such death shall be called dowry death, and such husband or relative shall be deemed to have caused her death. Explanation - For the purpose of this sub-section dowry shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 28 of 1961 . Whoever companymits dowry death shall be punished with imprisonment for a term which shall number be less than seven years but which may extend to imprisonment for life. Section 498A IPC reads as under - 498A. Husband or relative of husband of a woman subjecting her to cruelty. - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation. - For the purpose of this section, cruelty means - a any wilful companyduct which is of such a nature as is likely to drive the woman to companymit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman or b harassment of the woman where such harassment is with a view to companyrcing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Section 113B of the Indian Evidence Act, 1872 provides as under - 113B. Presumption as to dowry death. - When the question is whether a person has companymitted the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in companynection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation - For the purpose of this section, dowry death shall have the same meaning as in Section 304B of the Indian Penal Code 45 of 1860 . From the language of Section 304B IPC read with Section 113B of the Indian Evidence Act it is clear that once death of a woman is caused by any burn or bodily injury or occurs otherwise than under numbermal circumstances within seven years of her marriage, and if it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband in companynection with demand of dowry, such husband or relative shall be deemed to have caused her death and the companyrt shall presume it. In other words, in the cases of dowry death, as defined in Section 304B IPC, after evidence adduced by the prosecution and companyditions mentioned in Section 113B Indian Evidence Act, are fulfilled, companyrt has to take a presumption, and burden shifts on the accused to rebut the presumption. As far as cruelty on account of demand of dowry is companycerned, there is sufficient evidence adduced by PW 8 Subhash Chand father of deceased and PW 9 Veena Bhatia mother of deceased which is companyroborated by PW 5 Hansraj neighbour and PW 10 Harichand grand father of the deceased to establish the charge. As such we are number inclined to interfere with the companyclusions of the trial companyrt and that of High Court, with regard to the fact that charge under Section 498A IPC stands proved against accused Harish Kumar. But the finding as to whether death of deceased was accidental or number, requires careful scrutiny particularly in view of the fact that deceased has given dying declaration five days before her death to the public servant in the presence of medical officer, after police requested Tehsildar for recording the same. Learned companynsel for the appellant submitted that by proving dying declaration of the deceased, recorded on 14.9.1993 by getting examined DW-2 Baru Ram, Naib Tehsildar and DW-1 Dr. Surender Singh, Medical Officer of the hospital, in whose presence the statement was recorded, the accused has discharged the burden to rebut the presumption which companyld be drawn under Section 113B of the Indian Evidence Act. It is further argued that the companyrts below have erred in law in ignoring the dying declaration of the deceased. On the other hand, on behalf of the State it is companytended that the dying declaration dated 14.9.1993 is given by the deceased under threat from accused Harish Kumar, as such the companyrts below have rightly number relied upon it. We have companysidered the rival submissions of the parties and carefully scrutinized the record. There are certain facts which cannot be ignored in this case. Firstly, immediately after the incident at 10.30 p.m. on 13.9.1993, within half an hour the husband took his wife Manisha to the hospital and got her admitted. It is number disputed fact that the husband took the deceased to Civil General Hospital, Hansi where medico legal examination was recorded by PW-1 Dr. M.L. Kalra at the time of admitting the patient Manisha . It is also number disputed that the parents of the deceased were informed about the incident and they visited their injured daughter in the hospital, as is apparent from the statements of PW-8 Subhash Chand informant and father of the deceased and PW-9 Veena Bhatia mother of the deceased . We have already discussed above that Manisha died on 19.9.1993, five days after the incident. It has also companye on the record that PW-1 Dr. M.L. Kalra sent a memo ruqa to police, on which, as stated by PW-13 SI Ami Chand, request was sent to Tehsildar for recording of dying declaration. PW-13 SI Ami Chand has stated that Tehsildar marked the request of the police to the Naib Tehsildar on which Naib Tehsildar on 14.9.1993 recorded the dying declaration. It is also relevant to mention here that DW-1 Dr. Surender Singh, Medical Officer of the hospital where Manisha was admitted, was present at the time of recording of dying declaration and he made the endorsement that the patient was in a fit companydition to make it. In the above circumstances, we are of the view that the companyrts below have erred in law in number relying the dying declaration recorded by the Naib Tehsildar in the presence of the Medical Officer, on the request of the police. Strangely, in the First Information Report informant and father of the deceased Subhash Chand PW 8 has attempted to explain the dying declaration already recorded on 14.9.1993 by mentioning, MUJHE PATA CHALA KI MERI LADKI MANISHA NE HARISH KE KAHNE PAR JO MAGISTRATE KE SAMNE BAYAAN DIYA THA MANISHA DARA DHAMKA RAKHI THI KI LADKE KO BHI JAAN SE MAAR DEGA. MANISHA NE KISI KO YEH BAAT KAHI THI KI MERE PITAJI MILEN TO UNKO YEH BAATTEN BATA DENA. I came to know that my daughter who made statement before the Magistrate was under threat from her husband that her son would be killed. Manisha told this to KISI someone whom she requested to companyvey it to her father. The prosecution has attempted to explain the Hindi word KISI someone by saying that it was nick name of PW-6 Raj Rani aunt of the deceased . The explanation given by the witnesses as to the nick name of PW-6 Raj Rani, is number companyvincing as PW-6 Raj Rani is admittedly a real sister-in-law of the informant, and real aunt of the deceased. As such there should have been numberdifficulty for the informant to mention in the First Information Report that it was the aunt of the deceased to whom Manisha told to companyvey the above alleged fact. PW-1 Dr. M.L. Kalra, Medical Officer of Civil General Hospital, Hansi, in his cross-examination, has stated as under - The patient was brought to the hospital by her husband Harish Bhatia. She was number unconscious when she was brought to the hospital In the examination-in-chief of this witness it has been stated by him, - she gave history of accidental burn injuries. This fact recorded by PW-1 in the medico legal report companyy Annexure P-1 further companyroborates the dying declaration recorded on the next day on 14.9.1993 by the Naib Tehsildar. Needless to say that DW-1 Dr. Surender Singh and DW-2 Baru Ram, Naib Tehsildar, are number interested witnesses. Rather they are independent public witnesses who have discharged their duties after the police approached Tehsildar in response to memorandum Ruqa received from PW-1 Dr. M.L. Kalra. Considering the above facts and circumstances, we find that the dying declaration dated 14.9.1993, made by the deceased, before Naib Tehsildar in the presence of Medical Officer, is voluntary and truthful. In Surender Kumar v. State of Punjab2, this Court has observed, in para 20, as under - It is also number obligatory that either an Executive Magistrate or a Judicial Magistrate should be present for recording a dying declaration. It is enough that there is evidence available to show that the dying declaration is voluntary and truthful. There companyld be occasions when persons from the family of the accused are present and in such a situation, the victim may be under some pressure while making a dying declaration. In such a case, the companyrt has to carefully weigh the evidence and may need to take into companysideration the surrounding facts to arrive at the companyrect factual position. In Nallam Veera Stayanandam and others v. Public Prosecutor, High Court of A.P.3, in the similar facts and circumstances of the case, this Court, at the end of para 6, has observed as under - In cases where there is more than one dying declaration, it is the duty of the companyrt to companysider each of them in its companyrect perspective and satisfy itself which one of them reflects the true state of affairs. Therefore, in view of the law laid down by this Court as above, in the present case we find sufficient evidence that the defence has discharged its onus to rebut the presumption that companyld have been gathered under Section 113B of the Indian Evidence Act, in respect of offence punishable under Section 304-B I.P.C That being so, following the principle of law laid down in Nallam Veera Stayanandam and others Public Prosecutor, High Court of A.P.

Gajendragadkar, J. This group of eight appeals which has been brought to this Court with a certificate issued by the Andhra Pradesh High Court, arises out of a partition suit filed by the plaintiff Viziaram Gajapathi Raj II against his younger brother Visweswar Gajapathi Raj, defendant No. 1, his mother Vidyavathi Devi, defendant No. 2, his uncle Sir Vijayanand Gajapathi Raj, defendant No. 3, and his grand-mother Lalitha Kumari Devi, defendant No. 4. The parties to this litigation are members of the Vizianagram family which owns a very large estate. This estate is impartible and devolves by primogeniture. The relevant genealogy of the family which is set out at the end of this judgment clearly brings out the relationship between the parties, and shows at a glance how the Vizianagram Estate was held by different holders from time to time. Narayana Gajapathi Raj may be regarded as the founder of the family. His son who succeeded to the estate on the death of his father in 1845 can claim to be the real maker of the fortunes of this family. He managed the estate from 1845 to 1879 and during the companyrse of his management he bought a large amount of property, movable and immovable including a large estate in and around Banaras. At his death he left behind him his only son Ananda Gajapathi Raj and his daughter Appala Kondayamba I. Appala Kondayamba I subsequently became the Maharani of Rewa. Ananda Gajapathi Raj died issueless on May 23, 1897. Before his death, he had executed a will bequeathing all his properties to his maternal uncles son Chitti Babu. Later, on December 18, 1897, Ananda Gajapathi Rajs mother Alak Rajeswari I adopted Chitti Babu to her husband so that as a result of his adoption, Chitti Babu became the adoptive brother of Ananda Gajapathi Raj who had executed a will in his favour before his death. It appears that Chitti Babu had been brought up in the Vizianagram family and when Ananda Gajapathi Raj executed his will, it was anticipated that Chitti Babu would, in due companyrse, be adopted by Alak Rajeswari I. Alak Rajeswari I died in 1901 after executing a will by which she gave a life estate in her properties to her daughter, the Maharani of Rewa, and the remainder to the Children of Chitti Babu. On October 28, 1912, Chitti Babu executed a Trust Deed in favour of a trustee for the benefit of his minor son Alak Narayana, subject to payment of maintenance to maintenance holders and payments due to his creditors. On December 14, 1912, the Maharani of Rewa died, but before her death, she had executed a will bequeathing all her properties to Chitti Babu for life and the remainder in equal shares to Alak Narayana and his younger brother Vijayananda Gajapathi Raj. During Chitti Babus life-time the Impartible Estate Acts passed by the Madras Legislature in 1902, 1903 and 1904 came into force. Chitti Babu died on September 11, 1922. On his death, Alak Narayana succeeded to the estate. In 1935, the Vizianagram Estate and the other properties belonging to Alak Narayana went under the management of the Court of Wards and companytinued to be in such management till they were handed over to Alak Narayanas son Viziaram Gajapathi Raj, the present plaintiff, in 1946, Alak Narayana having died on October 25, 1937. During the time that the estate was being managed by the Court of Wards, Vijayananda Gajapathi Raj, defendant No. 3, made a claim before the Court of Wards for his half share in all the properties of Chitti Babu, except the impartible estate. The Court of Wards referred this claim to Sir DArcy Reilly, a retired Judge of the Madras High Court for enquiry. Sir DArcy accordingly held an enquiry and submitted his report to the Court of Wards. Thereafter the claim of defendant No. 3 was settled by companypromise and on October 9, 1944, defendant No. 3 executed a deed of release in favour of the plaintiff and Visweswar Gajapathi Raj, defendant No. 1 who were then represented by the Court of Wards. Under the terms of this release deed, defendant No. 3 received a payment of a sum of Rs. 10,00,000/- and a further sum of Rs. 54,193/- and, in turn, relinquished all his claims to any share in the movable and immovable properties of Chitti Babu including properties which he had alleged were joint family properties. That is how the dispute between the plaintiff and defendant No. 2 on the one hand and their uncle, defendant No. 3 was amicably resolved. In 1948, the Madras Legislature passed the Madras Estates Abolition and Conversion into Ryotwari Act, 1948 Mad. 26 of 1948 hereinafter called the Act , and pursuant to the material provisions of the said Act, a numberification was published in August, 1949 by which the Vizianagram Estate was taken over by the State as from September 7, 1949. Since the taking over of the estate by the State was apprehended to lead to disputes between the parties, the plaintiff chose to file the present suit No. 495/1949 on the file of the High Court of Madras for partition of the joint family properties. In this suit, he claimed that large number of immovable properties and a substantial number of jewels were impartible, whereas the other properties, both movable and immovable, were partible. The High Court of Madras passed a preliminary decree for partition in this suit on September 11, 1950. This preliminary decree declared that the plaintiff, defendant No. 1 and defendant No. 2 were each entitled to 1/3rd share in the partible properties of the joint family of which they were members along with the deceased Alak Narayana. As the law then stood, defendant No. 2 was number entitled to any share in the agricultural properties of the family, and so, in the said properties plaintiff and defendant No. 1 were held entitled to 1/2 share each. After the preliminary decree was passed, parties put in lists of properties and made their respective claims in regard to them. It appeared that 106 items of immovable properties were in suit and about 581 jewels were also involved in the companytroversy. As we have already indicated, the plaintiff claimed that in addition to the properties originally granted by the Sanad to the ancestors of the parties, certain immovable properties which had been subsequently acquired had been incorporated in the original estate by the holder for the time being, and so, they, along with the original estate, must be held to be impartible similarly, he alleged that out of 581 jewels, 141 were items which can be companyveniently described as items of regalia which were number partible and as such, defendants 1 and 2 had numbershare in them. This claim was resisted by defendants 1 and 2 and that dispute naturally raised questions both of law and fact. At this stage, defendant No. 4 also actively joined the dispute by filing an application No. 4830/1950 . By this application, she claimed that some of the items in the Toshakhana which had been included in the suit companystituted her stridhan and were, therefore, number available for partition between the plaintiff and defendants 1 and 2. According to defendant No. 4, the number of jewels to which she was thus entitled was 95. She filed a list of those ornaments 76 of these which were shown in Appendix A were, according to her case, given to her by her husband, and 19 which were shown in Appendix B were given to her by her parents. Defendant No. 2 similarly set up a claim to 55 items of the jewellery as her stridhan, whereas the plaintiff wanted to exclude 140 items of he jewellery on the ground that they companystituted the regalia of the Zamindar and were impartible. On these pleadings, 15 issues were framed by the learned trial Judge before passing a final decree. In support of their respective companytentions, the parties were companytent to rely mainly on documentary evidence except for defendant No. 4, numbere of them has stepped into the witness box. Defendant No. 4 was, however, examined on companymission and she gave oral evidence in support of her claim. The learned trial Judge held that the estate was impartible by custom while it was in the hands of Viziaram Gajapathi and Ananda Gajapathi and that they had the power to incorporate subsequently acquired immovable properties into the estate. He found that when the estate became impartible under Act II of 1904, the provisions of the Act took within their purview all accretions to the estate made prior to 1897 which had been incorporated into the estate. The question as to whether any of the subsequently acquired properties had been incorporated in the estate was then tried by him as a question of fact and in doing so, he placed the onus to prove incorporation on the plaintiff. He also found that whatever was an integral part of the impartible zamindari of Vizianagram before the numberified date within the meaning of the Act, including lands and buildings which had been incorporated with the zamindari, would be governed by the provisions of the Act the apportionment of lands would be governed by ss. 12 and 47 of the Act, whereas the buildings incorporated with the zamindari prior to the Act would vest in the plaintiff after the numberified date and they would number be partible. In the result, the learned trial Judge recorded his findings on the several issues and passed a final decree. It is unnecessary to refer to all the details of the decree. It would be enough merely to state the broad items allotted to the parties which are in dispute before us. In regard to the claim made by the plaintiff that 140 jewels companystituted regalia, the learned Judge recognised his claim in respect of 36 jewels only. Those jewels were items 1 to 19, 23, 24, 26, 27, 46, 56, 57, 79, 80, 108, 116, 124, 125, 126, 127 and 128 of Appendix A. Through oversight, the learned Judge had also included item No. 25 in this list, but it is companyceded that that is an error. As to the plaintiffs claim that subsequently acquired properties had been incorporated in the estate, the learned Judge upheld his claim in respect of the Prince of Wales Market at Vizianagram, permanent lease-hold rights in respect of nine villages, and the Admirality House at Madras, Waltair House and Elk House at Ooty. Defendant No. 4s claim was partly recognised by the learned Judge who passed a decree in her favour in respect of 15 items of jewels claimed by her. These were items 20, 45, 49, 54, 186, 203, 230, 348, 349, two of the gold anklets in items 364 and 535 and items 136, 138, 141 and 297. The reference to the items is according to the list made by Mr. Sathianathan Ext. P-157 . It is companyceded before us that this list included three items in Appendix B filed by defendant No. 4, and since defendant No. 4 had companyceded the right of defendant No. 2 in respect of all the ornaments in appendix B, the inclusion of these three items was erroneous. In other words, defendant No. 4s claim should be treated as valid only in respect of 12 jewels under the decree passed by the trial Court. This decree gave rise to four appeals by the respective parties. Plaintiffs appeal was No. 34/1955, defendant No. 1s 3/1955, defendant No. 2s No. 129/1954 and defendant No. 4s No. 131/1954. It appears that the last appeal was allowed to be withdrawn and instead, defendant No. 4 was permitted to file cross-objections in regard to her claim. These appeals were, in due companyrse, transferred to the High Court of Andhra because as a result of the reorganisation of Andhra State, it is the High Court of Andhra Pradesh that assumed jurisdiction over the subject-matter of the dispute in these appeals. Before the High Court, parties argued the same questions of fact and law and pressed their respective claims. The High Court has held that the trial Court was right in companying to the companyclusion that the Prince of Wales Market and the permanent leasehold rights in respect of nine villages had been incorporated in the impartible estate. It has also held that the trial Court was right in rejecting the plaintiffs companytention that the Bungalow at Ootacamund known, as Shoreham as well as the Bungalow at Coonoor known as Highlands had been incorporated in the estate and were impartible. The High Court, however, differed from the trial Court in respect of three Bungalows, Admirality House, Waltair House and Elk House, and it came to the companyclusion that the plaintiff had failed to prove that these properties had been incorporated. That means that these three properties like the bungalow Shoreham at Ootacamund and the Highlands at Coonoor were, according to the Appeal Court, partible between the plaintiff and defendants 1 2. In other words, the plaintiff lost in respect of the said three properties before the Appeal Court. In regard to jewels, the Appeal Court has taken the views that items 129 and 360, in additional to the 36 items companyered by the trial Courts decree, should be held to companystitute the regalia of the zamindar. That means that the plaintiffs claim in that behalf succeeded to the extent of 38 jewels. In regard to the claim made by defendant No. 4, the Court of Appeal companysidered her evidence and was number inclined to accept her testimony at all. In the result, the decree passed by the trial Court in her favour has been set aside. Thus, the plaintiff and defendants 1 and 2 partly succeeded before the Court of Appeal whereas, defendant No. 4 wholly lost her case. This decision of the Appeal Court has given rise to the present group of eight appeals. Civil Appeals Nos. 170 171/1961 are by the plaintiff, C.A. Nos. 172 173/1961 are by defendant No. 1, C.A. Nos. 174 175/1961 are by defendant No. 2 and C.A. Nos. 176 177 of 1961 are by defendant No. 4. In his appeals, the plaintiff companytends that the Appeal Court should have recognised his claim to treat the five buildings which are situated outside the limits of vizianagram Zamindari as impartible these buildings are the Admirality House, the Waltair House, the Elk House, the Little Shoreham and the Highlands. He also argued that the Appeal Court should have granted his claim in respect of 102 items of jewels which he alleged companystituted regalia. In respect of this latter claim, Mr. Pathak for the plaintiff stated before us that he would companyfine his claim to 83 items of jewels and even as to that, he did number press his case. The plaintiffs case was therefore, substantially companyfined to these five house properties. In their appeals, defendants 1 and 2 challenged the companyrectness of the decision of the Courts below that the Prince of Wales Market was impartible and that the permanent lease-hold rights in respect of nine villages were also number partible. They also companytended that the Courts below were in error in holding that any jewels companyld be treated as regalia of the Zamindar and as such impartible. According to them, numbere of the 38 jewels should have been held to be impartible. Defendant No. 4 companytends that the Court of Appeal was in error in reversing the decisions of the trial Court particularly when the companyclusions recorded by the trial Court in her favour were based mainly on the appreciation of her oral evidence. That, in brief, is the nature of the dispute before us in this group of 8 appeals. Before dealing with the dispute between the plaintiff and defendants 1 2, it may be companyvenient to deal with the claim of defendant No. 4. She is the widow of Chitti Babu and the grandmother of the plaintiff and defendant No. 1. Parties have agreed before us that her claim which was allowed by the trial Court should be decreed in her favour subject to the modification that the items in appendix B in respect of which defendant No. 4 made a companycession in favour of defendant No. 2 should be excluded in other words, her claim should be companyfined only to 12 of the items decreed by the trial Court in list A. This companycession has been made unconditionally by the plaintiff and defendant No. 2 and companyditionally by defendant No. 1. Mr. Kumaramangalam for defendant No. 1 stated that his client was agreeable to have the decree passed in favour of defendant No. 4 restored subject to the modification just indicated, only if defendant No. 4 allows him to take his 1/4th share in the jewels allotted to her by this companypromise arrangement. This can be companyveniently arranged, says Mr. Kumaramangalam, if defendant No. 4 gets the jewels allotted to her share valued by proper valuers and defendant No. 1 is then given an option to choose the jewels whose value would be 1/4th of the total of the jewels of defendant No. 4s share. If this 1/4th valuation cannot be worked out with mathematical accuracy, adjustment can be made by payment of cash by one party to the other as may be found necessary. Mr. Aggarwal who has appeared for defendant No. 4 expressly agrees to this companydition. Therefore, by companysent, we set aside the order passed by the Court of Appeal and restore the trial Courts decree passed in favour of defendant No. 4, subject to the modifications and companyditions just specified. This companypromise arrangement disposes of defendant No. 4s appeals Nos. 176 177 of 1961. We would number revert to the dispute between the plaintiff and defendants 1 2. In dealing with this dispute, it is necessary to companysider some points of law which have been argued before us. The first point which must be examined is in regard to the character of an impartible estate such as that which the Vizianagram family owns. Since the decision of the Privy Council in Shiba Prasad Singh v. Rani Prayag Kumari Debi 1932 L.R. 99 I.A. 331. , it must be taken to be well-settled that an estate which is impartible by custom cannot be said to be the separate or exclusive property of the holder of the estate. If the holder has got the estate as an ancestral estate and he has succeeded to it by primogeniture, it will be a part of the joint estate of the undivided Hindu family. In the illuminating judgment delivered by Sir Dinshah Mulla for the Board, the relevant previous decisions bearing on the subject have been carefully examined and the position of law clearly stated. In the case of an ordinary joint family property, the members of the family can claim four rights 1 the right of partition 2 the right to restrain alienations by the head of the family except for necessity 3 the right of maintenance and 4 the right of survivorship. It is obvious that from the very nature of the property which is impartible the first of these rights cannot exist. The second is also incompatible with the custom of impartibility as was laid down by the Privy Council in the case of Rani Sartaj Kuari v. Deoraj Kuari 1888 L.R. 15 I.A. 51 10 All. 272. , and the First Pittapur case - Venkata Surya v. Court of Wards 1889 L.R. 26 I.A. 83 22 Mad. 383. . Even the right of maintenance as a matter of right is number applicable as laid down in the Second Pittapur Case - Ram Rao v. Raja of Pittapur 1918 L.R. 45 I.A. 148 41 Mad. 778. . The 4th right viz., the right of survivorship, however, still remains and it is by reference to this right that the property, though impartible, has, in the eyes of law, to be regarded as joint family property. The right of survivorship which can be claimed by the members of the undivided family which owns the impartible estate should number be companyfused with a mere spes successionis. Unlike spes successionis, the right of survivorship can be renounced or surrendered. It also follows from the decision in Shiba Prasad Singhs case 1932 L.R. 59 I.A. 331. , that unless the power is excluded by statute or custom, the holder of customary impartible estate, by a declaration of his intention can incorporate with the estate self-acquired immovable property and thereupon, the property accrues to the estate and is impressed with all its incidents, including a custom of descent by primogeniture. It may be otherwise in the case of an estate granted by the Crown subject to descent by primogeniture. As Sir Dinshah Mulla has pointed out, questions of incorporation have been dealt with in several decisions of the Board as well as decisions of Indian High Courts, but the companypetency of incorporation was number challenged in any of them. It is clear that incorporation is a matter of intention and it is only where evidence has been adduced to show the intention to the acquirer to incorporate the property acquired by him with the impartible estate of which he is a holder that an inference can be drawn about such incorporation. In all such cases, the crucial test is one of intention. It would be numbericed that the effect of incorporation in such cases is the reverse of the effect of blending self-acquired property with the joint family property. In the latter category of cases where a person acquires separate property and blends it with the property of the joint family of which he is a companyarcener, the separate property loses its character as a separate acquisition and merges in the joint family property, with the result that devolution in respect of that property is then governed by survivorship and number by succession. On the other hand, if the holder of an impartible estate acquires property and incorporates it with the impartible estate he makes it a part of the impartible estate with the result that the acquisition ceases to be partible and becomes impartible. In both cases, however, the essential test is one of intention and so, wherever intention is proved, either by companyduct or otherwise, an inference as to blending or incorporation would be drawn. It was urged before the Privy Council in the case of Shiba Prasad Singh 1932 L.R. 59 I.A. 331. , that to allow the operation of the doctrine of incorporation, would really give the holder of impartible estate a right to prescribe a customary rule of succession different from that of the ordinary law, but this argument was rejected on the ground that under the Hindu system of law, clear proof of usage, even if it be a family usage, will outweigh the written text of the law, vide Collector of Madura v. Mootoo Ramalinga Sathupathy 1862 12 Moo. I.A. 397, 436. . The power to incorporate, observed Sir Dinshah Mulla, being a power inherent in every Hindu owner applies as well to a customary impartible Raj unless it is excluded by statute or custom. It is, of companyrse, true that numbere of the companysiderations which are relevant in respect of immovable property, would apply to movable property and so, the theory of incorporation cannot apply to such movable property. That, however, is number to say that by a family custom, movable property cannot be treated as impartible. If a family custom is proved in the manner in which family customs have to be proved that certain category of movable property is treated by the family as impartible, that custom will, numberdoubt, be recognised. That, broadly stated, is the position of Hindu law in respect of impartible property which has been clearly enunciated in the case of Shiba Prasad Singh. There is another aspect of this matter to which reference may be made at this stage. Prior to the decision of the Privy Council in the case of Rani Sartaj Kuari v. Deoraj Kuari 1888 L.R. 15 I.A. 51 10 All. 272. , it was always assumed that a holder of an ancestral impartible estate cannot transfer or mortgage the said estate beyond his own life-time so as to bind the companyarceners, except, of companyrse, for purposes beneficial to the family and number to himself alone. The reason for this view was that in a large number of cases impartible estates were granted on military tenure, and so, if alienations were freely allowed, the purpose of the grant itself would be frustrated if number destroyed. In 1888, however, this view was shaken by the decision of the Privy Council in Rani Sartaj Kuaris case 1889 L.R. 26 I.A. 83, 22 Mad. 383. . In that case, the holder of the estate had gifted 17 of the villages of his estate to his junior wife and the validity of this gift was questioned by his son. The sons plea, however, failed because the Privy Council held that if, as their Lordships are of opinion, the eldest son, where the Mitakshara law prevails and there is the custom of primogeniture, does number become a companysharer with his father in the estate, the inalienability of the estate depends upon custom, which must be proved, or it may be in some cases, upon the nature of the tenure. This decision was again affirmed by the Privy Council in the First Pittapur case 1889 L.R. 26 I.A. 83, 22 Mad. 383. . As a result of these decisions it must be taken to be settled that a holder of an impartible estate can alienate the estate by gift inter vivos, or even by a will, though the family is undivided the only limitation on this power would flow from a family custom to the companytrary or from the companydition of the tenure which has the same effect. Soon after these decisions were pronounced by the Privy Council, the Madras Legislature stepped in because those decisions very rudely disturbed the view held in Madras about the limitations on the powers of holders of impartible estates in the matter of making alienations of the said estates. That led to the passing of the Madras Impartible Estates Acts II/1902, II/1903 and II/1904. The Legislature took the precaution of making necessary enquiries in regard to impartible estates within the State and made what the legislature thought were necessary provisions in respect of the terms and companyditions on which the said estates were held. It may be stated at this state that the result of the relevant provisions of the Madras Acts is that the question of inalienability of impartible estates does number depend in Madras on the family custom, but is expressly provided for by the relevant provisions of the statutes. We have already observed that the principle of incorporation does number apply to movables and we have numbericed in that companynection that it is only by proving a family custom that a class of movables belonging to a family may be treated as impartible. The law in regard to the proof of customs is number in doubt. As observed by the Privy Council in the case of Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar 14 Moo. I.A. 570. , it is of the essence of special usages modifying the ordinary law of succession that they should be ancient and invariable and it is further essential that they should be established to be so by clear and unamibiguous evidence. It is only by means of such evidence that the Courts can be assured of their existence, and that they possess the companyditions of antiquity and certainty on which alone their legal title to recognition depends. In dealing with a family custom, the same principal will have to be applied, though, of companyrse, in the case of a family custom, instances in support of the custom may number be as many or as frequent as in the case of customs pertaining to a territory or to the companymunity or to the character of any estate. In dealing with family customs, the companysensus of opinion amongst the members of the family, the traditional belief entertained by them and acted upon by them, their statements, and their companyduct would all be relevant and it is only where the relevant evidence of such a character appears to the Court to be sufficient that a specific family custom pleaded in a particular case would be held to be proved, vide Abdul Hussain Khan v. Bibi Sona Daro 1917 L.R. 45 I.A. 10. . It is in the light of these principles that we must number proceed to examine the rival companytentions urged before us in the present appeals. On behalf of defendants 1 2 it has been argued before us that the effect of the provisions of Act II of 1904 is that the properties companyered by the Sanad alone can be held to be impartible. The Sanad which has been produced on the record of this case Ext. P. 77 and which was issued on October 21, 1803 shows that it companyfirmed the original grant of 1160 villages to the ancestor of the parties before us and the argument is that the properties acquired by the holders of the Zamindari estate from savings made by them cannot claim to be impartible. We have already seen the genesis of the Madras Act II of 1904. Section 2 2 of this Act defines an impartible estate as meaning an estate descendible to a single heir and subject to the other incidents of impartible estates in Southern India. Section 2 3 defines a Proprietor of an impartible estate as meaning the person entitled to possession thereof as single heir under the special custom of the family or locality in which the estate is situated or if there be numbersuch family or local custom under the general custom regulating the succession to impartible estates in Southern India. Section 3 is the principal section of this Act and it provides that the estates included in the Schedule shall be deemed to be impartible estates. Section 4 1 imposes restrictions on alienations of impartible estates, and s. 4 2 provides for permissible alienations. With the other provisions of this Act we are number companycerned. The Schedule enumerates the zamindari estates districtwise. Mr. Setalvad companytends that the very fact that the Vizianagram estate is specified under two districts wherein its properties are situated, shows that it is only the property which was granted by the Sanad that is intented to be companyered by the Schedule and therefore, governed by section 3 of this Act. If the holders of the estates have made subsequent acquisitions, they cannot claim to be impartible, because they are outside the Vizianagram estate as described in the Schedule. We are number impressed by this argument. The fact that the Vizianagram estate is shown under two districts is obviously referable to the requirements of administrative companyvenience. There can be numberdoubt that as a result of the enquiries made in that behalf, the legislature was satisfied that certain estates in the State of Madras were impartible and the legislature was anxious to declare their impartibility and to prescribe restrictions on their alienations. This became necessary as a result of the Privy Councils decisions to which we have already referred. Therefore, it seems clear that the Vizianagram estate included in the Schedule to this Act must be deemed to include all the impartible property companystituting the said estate. The principle of incorporation which has been recognised by the customary law has had its operation after the Sanad was granted and before the Act of 1904 was passed, and if by the operation of the said principle subsequently acquired properties had, in fact, been incorporated by the holder of the zamindari for the time being with the impartible estate, that would have formed an integral part of the estate and would be included in the Vizianagram estate as described in the Schedule to this Act. Whether or number any particular property number included in the sanad but subsequently acquired has been incorporated is a question of fact and it will have to be decided on its own merits. But it would number be right to companytend that even if certain immovable properties had been incorporated before this Act was passed, they would number be included in the estate as described in the Schedule and would, therefore, be outside the purview of this Act. Therefore, the argument that the effect of Act II of 1904 is to prevent the plaintiff from making any claim that subsequently acquired properties have been incorporated, cannot be sustained. The next question which has been strenuously urged by Mr. Setalvad is in regard to the buildings which have been found to have been incorporated with the impartible estate. Mr. Setalvad companytends that as a result of the provisions of s. 18 4 of the Act, defendants 1 2 are entitled to claim a share in the buildings to which the said provision applies. For deciding this question it is necessary to refer to some of the definitions prescribed by s. 2 and other relevant provisions of the Act. Before doing so, however, let us read s. 18. Section 18 1 deals with buildings situated within the limits of an estate, which immediately before the numberified date, belonged to any landholder thereof and was then being used by him as an office in companynection with its administration and for numberother purpose, and it provides that such buildings shall vest in the Government, free of all encumbrances, with effect on and from the numberified date. Section 18 2 deals with buildings which belonged to any such landholder and the whole or principal part whereof was then in the occupation of any religious, educational or charitable institution, and it provides that they shall also vest in the Government, free of all encumbrances from the same date. There is a proviso to this sub-section which it is unnecessary to companysider. Section 18 3 then deals with buildings which fell either under clause i or clause ii on July 1, 1947, but which had been sold or otherwise transferred or ceased to be used for the purposes specified in clauses i and ii between July 1, 1947 and the numberified date, and it provides that in respect of such buildings, their value shall be assessed by the Tribunal in such manner as may be prescribed, and the Tribunal shall pay to the Government such value from out of the companypensation deposited in its office under s. 41, sub-s. 1 . It is companymon ground that the buildings in respect of which the present argument has been urged fall under s. 18 4 . Section 18 4 reads as under - Every building other than a building referred to in sub-sections 1 , 2 and 3 shall, with effect on and from the numberified date, vest in the person who owned it immediately before that date but the Government shall be entitled in every case, to levy the appropriate assessment thereon and in the case of a building which vests in a person other than a landholder, also to the payments which such person was liable immediately before the numberified date to make to any landholder in respect thereof, whether periodically or number and whether by way of rent or otherwise, in so far as such payments, may accrue due on or after the numberified date. Mr. Setalvad suggests that the buildings falling under s. 18 4 vest in the person who owned them immediately before that date and that takes in the members of the plaintiffs family. He relies on the fact that according to the decision of the Privy Council in Shiba Prasad Singhs case, an impartible estate is joint family property devolution to which is governed by the rule of survivorship and that inevitably makes the members of the family owners of the said property in a theoretical sense. The right of the members of the family to succeed to the property is number spes successionis, and so, they can claim to be persons who owned the property along with the plaintiff immediately before the numberified date. In support of this argument, Mr. Setalvad has naturally relied on the fact that whereas s. 18, sub-ss. 1 and 2 specifically refer to a landholder, s. 18 4 does number use the word landholder but refers to the person who owned the property, and this departure is intended to companyer a larger class of persons than the landholder. Prima facie, the argument does appear to be attractive but when we examine the matter closely in the light of the definitions, it would be clear that the expression the person who owned refers only to the landholder and numberother person. Section 2 8 defines a landholder as including i a joint Hindu family, where the right to companylect the rents of the whole or any portion on the estate vests in such family and ii a darmila inamdar and s. 2 12 defines a principal landholder as meaning the person who held the estate immediately before the numberified date. Now, if we bear in mind the definition of the word landholder, it would be numbericed that the joint Hindu family companysisting of the plaintiff and defendants 1 2 cannot claim the benefit of s. 18 4 . It is the landholder or the proprietor as defined under the earlier Act of 1904 that is companytemplated by the expression the person who owned in sub-s. 4 of s. 18. Besides, if we take into account s. 18 4 ii where it is provided that in the case of a building which vests in a person other than a landholder, it would follow that the person who is specified in s. 18 4 must be a landholder and numberother. It is true that the legislature might well have used that word in s. 18 4 but the change in the use of the relevant words in s. 18 4 does number, in our opinion, justify the argument that a larger class of persons is intended to be included within the said clause. There is also another aspect of this matter which points to the same companyclusion. Section 43 of the Act provides for the apportionment of companypensation in the case of certain impartible estates, and the class of persons who are entitled to claim apportionment is limited by s. 45 2 a and b . If the companystruction for which Mr. Setalvad companytends is accepted, it will lead to this anomalous result that whereas the apportionment of companypensation can be claimed by the narrower class of persons specified by s. 45, a much larger class of persons would be entitled to claim the benefit of s. 18 4 . That obviously companyld number have been the intention of the legislature. Therefore, we are satisfied that the Courts below were right in holding that defendants 1 and 2 cannot claim the benefit of s. 18 4 . That takes us to the question as to whether the Appellate Court was right in its companyclusions on the issues raised by the companytentions of the respective parties in regard to incorporation of buildings in the impartible estate. In this companynection, we will first deal with the pleas raised by defendants 1 2. Mr. Setalvad companytends that the companyrts below were in error in holding that the Prince of Wales Market built at Vizianagram forms part of the impartible estate. This market was companystructed by Vijayaram Gajapathi in 1876 on a site which admittedly belonged to the estate. It appears from the report submitted by Mr. Sathianathan that when Vijayaram Gajapathi returned from Banaras and assumed charge of the estate from the District Collector, he set out to improve the companydition of the town. Accordingly, roads were laid, drinking water wells and tanks were companystructed and hospitals, schools and companyleges were opened. He recognised the need for a proper market, and so, in 1876 the formation of the market had been companypleted. The whole of the market was sub-divided into four companypartments - the grain market, the timber market, the cattle market and the fish market. The Municipal Council approved of the opening of this new market and directed the removal of all the then existing markets to the Prince of Wales Market. Evidence shows that the management of the market was entrusted to the Municipality and was carried on under its supervision. In the companyrts below, reliance was placed by the plaintiff on several facts to show that this market had been incorporated into the impartible estate by Vijayaram Gajapathi. It was pointed out that the Municipality companyresponded with the holders of the Zamindari at all stages that the income of the property was shown in the Ayan accounts that the accounts maintained a distinction between Ayan accounts which referred to the estate and family accounts, that the market was treated as a unit of administration in the Zamindari for the purpose of management and for companylection of fees, that Government also treated the property as that of the Samsthanam, that Mr. Sathianathan in his report also took the view that the property belonged to the Samsthanam, that the occasion for the building was to companymemorate the visit of the Prince of Wales to India in 1875, that the object of the building was to provide a public amenity along with others for the town of Vizianagram, the headquarters of the estate that during the time that the Court of Wards was in its management, it seemed to treat the property as forming part of the impartible estate, and, on the whole, the companyrse of companyduct shows that it was always treated as such. Mr. Setalvad has numberdoubt quarrelled with some of the reasons given by the Appellate Court in support of its companyclusion that the Prince of Wales Market had been incorporated in the impartible estate. It may be companyceded that some of the reasons set out in the judgment of the Court of Appeal are inconclusive. But there are two companysiderations which have weighed in our minds in dealing with this aspect of the matter in the present appeals. The first companysideration is that the question as to whether a particular immovable property has been incorporated with the impartible estate or number is ultimately a question of fact numberdoubt, the decisive test being one of intention, and both the companyrts have companycurred in holding that the Market must be held to have been incorporated with the impartible estate. Besides, there are two outstanding facts in respect of this Market which cannot be ignored. It has been built on a site admittedly belonging to the estate, and it has been built to afford a public amenity to the citizens of Vizianagram. It is number likely that in 1876 when this Market was built by Vijayaram Gajapathi he companyld have thought of the market as a profit yielding business he must have thought of it as a project undertaken by him in his capacity as a zamindar responsible for the well-being of the citizens of Vizianagram and in that sense, at the very time that he thought of building the Market, he must have intended to treat that as part of the impartible estate. That, in substance, is the view taken by the companyrts below and we see numberreason to interfere with it. The other items of properties in respect of which Mr. Setalvad has challenged the companyclusions of the companyrts below is in regard to permanent leasehold rights in respect of 9 villages. This is item No. 31 in issue No. 3 framed by the trial Court. The villages in question are Thummapala, Annamrajupeta, Kottavalasa, Abmativalasa, Jammu, Duvvam, Chintapallipeta, Seripeta, Manesam Sudha and Sujjangivalasa. These villages are held under a permanent Mustajari lease by Mr. Venkata Reddi. Both the companyrts below have found that this Reddi was only a numberinee of the Vizianagram Samsthanam and that the leasehold interest was an accretion to the estate. In our opinion, the companyclusion of the companyrts below is obviously right because a bare recital of the relevant facts which terminated in the acquisition of the said leasehold rights by Mr. Reddi would speak for itself. These nine villages originally formed part of the properties granted to the family by the Sanad. It appears that some time before 1850 these villages were sold for arrears of peishchush and they were purchased by the Zamindar of Bobbili. Subsequently, the purchaser filed a suit for establishing his rights in respect of the said villages. Government intervened and brought about an ambicable settlement between the two Zamindars. This settlement Ext. P-112 provided, inter alia, that the said villages should be given on a permanent mustajari lease to Mr. Venkata Reddi and that the Zamindar of Vizianagram should execute a guarantee letter in favour of the Agent in respect of the amount payable by the lessee. Pursuant to this term, the Raja of Vizianagram passed a letter to the Agent on January 10, 1857. The purchaser, Raja of Bobbili, also wrote a letter to the Agent agreeing to withdraw the suit, and so, the lease came to be executed. Under the lease, the bill mukta was fixed at Rs. 22,568/- per annum. There is also other companyrespondence in respect of this transaction which shows that the Raja of Vizianagram treated the leasehold interest as his own and was very actively interested in the transaction. It was presumably thought derogatory to the dignity of the Raja of Vizianagram that he should take a lease from the Raja of Bobbili. The trust deed executed by Chittibabu in 1912 also shows that Chittibabu recognised that the lease-hold rights formed part of the impartible estate and the companyduct of the trustee who took up management of the estate supports the same companyclusion. A portion of two of the said villages was acquired by the Government for the companystruction of a railway crossing between the village of Alamanda and the town of Vizianagram. The proceedings taken for the apportionment of companypensation show clearly that the two rival claimants for companypensation were the Raja of Bobbili and the Raja of Vizianagram, and that the dispute was settled on the basis that the lands had reverted to the Vizianagram Samsthanam subject to the annual charge of Rs. 22,568/-. It is companymon ground that all these villages are surrounded by the other estate villages and that the officials in their companyrespondence have always treated the leasehold rights as forming part of the estate. These facts clearly indicate that the companyrts below were right in accepting the plaintiffs case that the villages formed part of the impartible estate. The next point which has been urged before us by Mr. Setalvad as well as Mr. Sastri on behalf of defendants 1 2 respectively is that the Court of Appeal was in error in holding that 38 jewels can be created as companystituting regalia and as such, impartible between the plaintiff and defendants 1 2. It will be recalled that the trial Court had upheld the plaintiffs case in respect of 36 jewels, whereas the Court of Appeal has added two jewels to the said list and defendants 1 2 seriously quarrel with the companyrectness of this companyclusion. In attacking the companyrectness of this finding, Mr. Setalvad has argued that it is inappropriate to speak of regalia in companynection with the Vizianagram family, because it was number a ruling family, and there companyld be numberoccasion for companyonation as such. He has also urged that even if there was some justification for installation while the zamindari estate was in existence, after the abolition of the zamindari estate as a result of the Act which was passed in 1948, there companyld be numberoccasion for any installation and the plea that certain jewels companystituted regalia must, therefore, be rejected. It is true that the original Sanad Ext. P-77 granted to the ancestors of the parties was in the nature of a grant for military service but it is by numbermeans clear that as zamindars, the family never exercised what may euphemistically be described as power and authority of a ruling family. In the first half of the 19th Century, the Saranjamdars and the Zamindars who received grants from ruling monarchs regarded themselves as petty chieftains or rulers and purported to exercise authority in that behalf over the villages granted to them. In fact, we have it in evidence that an installation ceremony was held in 1922 and it was stated at the Bar that it was also celebrated in 1947 after the plaintiff attained majority. Besides installation, there many be other ceremonial occasions on which jewels described as regalia may be worn by the holder of the Zamindari and his wife. The argument that the abolition of the Zamindari estate must automatically terminate the customary impartibility of the jewels which were treated as regalia by the family, overlooks the fact that many times custom outlives the companydition of things which gave it birth. As was observed by Lord Atkinson in delivering the opinion of the Board in Rai Kishore Singh v. Mst. Gahenabai A.I.R. 1919 P.C. 100. , it is difficult to see why a family should number similarly agree expressly or impliedly to companytinue to observe a custom necessitated by the companydition of things existing in primitive times after that companydition had companypletely altered. Therefore, the principle embodied in the expression cessat ratio cessat lex does number apply where the custom outlives the companydition of things which gave it birth. That is why we think, the companytention raised on the ground that there was numberjustification for regalia in early times at all and that if initially there was any justification, it ceased after the abolition of the Zamindari Estates, cannot be upheld. The main attack against the finding of the Court of Appeal, however, proceeds on the basis that Chittibabu took the whole of the estate as a devisee under the will executed by Ananda Gajapathi Raj and number as an adopted son of Vijayaram Gajapathi Raj. We have already numbericed that Ananda Gajapathi had executed a will on July 23, 1896 bequeathing the whole of his property to Chittibabu and that Chittibabu was subsequently adopted on December 18, 1897. In other words, the will of Ananda Gajapathi spoke from May 23, 1897 when he died and the argument is that before Chittibabu was adopted by Alak Rajeswari, the property bequeathed by Ananda Gajapathis will had already vested in him as a devisee legatee under the will. That being so, even if some of the jewels belonging to the Vizianagram family were, by family custom, treated as impartible, the said custom ceased to be operative and the property came in the hands of Chittibabu free from the burden of that custom. It has been emphasised before us that in both the companyrts below, parties have proceeded to a trial on this basis and it is urged that once the full significance of this important fact is realised, it would be numbericed that the proof of custom attaching to the impartibility of the jewels would become very difficult. This aspect of the matter, it is urged, has number been companysidered by the companyrts below. It is also companytended that Chittibabu was a minor until 1911 and even after he became a major the property seemed to be substantially under the companytrol of the Maharani of Rewa who was a creditor of the estate to a very large extent. Reliance is placed on a statement made in one of the letters of Chittibabu that he had number seen the jewels of the family and it is suggested that the Court would need strong evidence in support of the plea that Chittibabu and those who followed him have by their companyduct furnished such satisfactory evidence about the custom of impartibility as to justify the plaintiffs claim in respect of the 38 jewels. If at the time when Chittibabu got the estate under the will of Ananda Gajapathi the jewels companyld number be said to be impressed with any family custom of impartibility, it will be necessary to establish such custom subsequent to the acquisition of the property by Chittibabu and that, it is argued, has number been successfully done in the present case. On the other hand, though, technically, it may be true that Chittibabu must be deemed to have got the property as a devisee under the will of Ananda Gajapathi we cannot ignore the fact that Chittibabu was brought up in the Vizianagram family and was adopted soon after Ananda Gajapathi died. It is remarkable that when Chittibabu had to face a challenge to his title in suit No. 18 of 1903, he resisted the challenge by setting up his own adoption in support of his title and when the said litigation ended in a companypromise decree in appeal No. 114 of 1909 on March 12, 1913, the plaintiffs who had challenged Chittibabus title fully admitted the validity and the binding character of his adoption by Maharani Alak Rajeswari to her husband. Therefore, it is perfectly clear that when Chittibabu came in possession of the property and had to establish his title to it, he relied more prominently on his adoption than upon the will executed in his favour by Ananda Gajapathi. When the circumstances under which the said will was executed and the adoption of Chittibabu which followed are taken into account, the attitude adopted by Chittibabu can be easily understood and appreciated. He was brought up by Alak Rajeswari from his childhood and even Ananda Gajapathi anticipated that he would be adopted by Alak Rajeswari since Ananda Gajapathi had lost his wife and had numberson. The adoption deed executed by Alak Rajeswari clearly shows that Chittibabu was treated as the member of the family from the start. Therefore, after Chittibabu entered the family as the adopted son, all the members of the family believed that the line companytinued without interruption and Chittibabu and Maharani of Rewa and all others looked upon the property as belonging to the Vizianagram family which was then held by the adopted member of the family. Even technically, the adoption of Chittibabu would relate back to the date of his adoptive fathers death and in that sense a break in the companytinuity of the line would be avoided. But apart from this technical aspect of the matter, we must have regard to the attitude adopted by the parties and their companyrse of companyduct at the relevant time when we are dealing with the question of family custom. The argument urged by defendants 1 2 naturally assumes that prior to the death of Ananda Gajapathi there was a custom in the family which treated certain jewels as companystituting the regalia of the Zamindar. If that is so, it would number be easy to accept the argument that by the death of Ananda Gajapathi, the past custom was cut as under and the arrival of Chittibabu on the scene as an adopted son made a vital difference to the companytinuance of the said custom. Chittibabu became a major in 1911, was married, had children, and the family grew in numbers thereafter and yet, throughout this period, as we will presently point out, the parties did number regard Chittibabu as a stranger who had arrived at the scene by virtue of the will executed in his favour by Ananda Gajapathi, but as an adopted son of Vijayaram Gajapathi who companytinued the line and held the property subject to all the traditions and customs of the family. It is true that in order to uphold the plaintiffs plea in respect of the 38 jewels, the Court will have to be satisfied that there is evidence in regard to the companyduct of parties subsequent to Chittibabus adoption, but if evidence has been adduced by the plaintiff in regard to the companyduct of parties subsequent to 1897 and that evidence otherwise appears to be satisfactory and companyent, it would be numberanswer to the effectiveness of the said evidence to companytend that Chittibabu got the estate as a devisee and number as an adopted son. In the matter of the proof of family custom, it is number the technicalities of the law that would prevail but the evidence of companyduct which unambiguously proves that the parties wanted to companytinue the old custom, as though Chittibabu who had companye into the family by adoption had, in substance, got the property as such adopted son. That is why we think the companyrts below were right in number attaching undue importance to the effect of the will executed by Ananda Gajapathi in favour of Chittibabu. Let us then companysider whether the evidence adduced by the plaintiff is sufficient to prove the custom pleaded by him in regard to the 38 jewels. Some of this evidence is prior to 1897, but the most important piece of evidence is subsequent to 1897. The first document on which the plaintiff relies is the will of Ananda Gajapathi himself Ext. P-6 . In this will, Ananda Gajapathi bequeathed all his movable and immovable property to Chittibabu subject to the other liabilities mentioned in the will. In describing the properties the testator refers to the movable and immovable property of the Samsthanam as well as his personal property together with all rights, titles, privileges, honours and insignias of the family. It would be numbericed that the properties of the Samsthanam which are impartible properties are described as both movable and immovable and that shows that the testator recognised the existence of a family custom which treated some movable properties as being impartible since they belonged to the Samsthanam. The deed of adoption Ext. P-7 executed in favour of Chittibabu recites the material facts leading to his adoption and refers to the authority companyferred on the adoptive mother by her husband to make an adoption, if necessary, Alak Rajeswari the adoptive mother, executed a will on January 15, 1898, Ext. P-9 . In this will, she bequeathed her properties to her daughter for her life and the remainder to Chittibabu whom she had brought up since his birth in her family and to whom her son Ananda Gajapathi had bequeathed all his properties. On December 14, 1911, the Maharani of Rewa executed a will Ext. P-10 . This document is very important from the plaintiffs point of view. By her will, the Maharani bequeathed all her properties to Chittibabu. Paragraphs 5 6 of this will are relevant. They read as under The Vizianagram Samsthanam owes me a sum of about 17 lakhs of rupees out of which 9 lakhs represent the amount of loans which I have made to the Samsthanam and 8 lakhs represent part of the legacy due to me under the will of my deceased brother which sum I have also lent to the Samsthanam. My own jewellery is companysiderable. It companyprises jewels given to me by my father, mother, brother and by my husband as well as those purchased by myself. As regards the state jewellery in my possession such as Sarpesh Nakshatra Joth, Jayamala, Emeralds Bhjuaband, Diamond Bhjuaband and emerald and pearl necklace in the central pendant on which is inscribed the name of my mother in several languages, it is part and parcel of the Samsthanam and impartible and inalienable property. The State jewels are Regalia and heirlooms of the family of Vizianagram passing along with and as part of the estate. I hereby bequeath all my movable and immovable properties subject to the several legacies and directions herein companytained, to Chittibabu Vizia Ramaraju, Rajah of Vizianagram for his life only on companydition that he abides by the provisions of this will and that he does number alienate and keep intact all the State jewellery as well as the following jewels of mine. 1 Necklace of emeralds and diamonds 2 diamond and gold bangles used by me which I wish to be preserved along with state jewels. These paragraphs show that the Maharani who was the creditor of the Samsthanam for such a large amount of 17 lakhs of rupees, was very much interested in good management of the properties of the Samsthanam and her relations with the Samsthanam and Chittibabu in particular were very companydial. Paragraph 5 shows that as a security for the loan which she had advanced to the Samsthanam, certain jewels had been kept with her. Out of these jewels, she described five jewels as companystituting State Regalia they are Sarpesh Nakshatra Joth, Jayamala, Emerald Bujuaband, Diamond Bujuaband and Emerald and Pearl necklace in the central pendant on which is inscribed the name of her mother in several languages. The first of these five has number been identified but the four others have been identified and these four have been described by the Maharani as forming part and parcel of the Samsthanam and impartible and inalienable property. It is true that by paragraph 6 she purports to impose an obligation on Chittibabu number to alienate the said items of State jewellery as also two jewels of her own which she had specified in the said paragraph. Now, it is clear that at the time when this will was executed by the Maharani of Rewa, there was numberdispute pending in regard to the existence of any State jewellery her relations with Chittibabu were good and the statement that certain jewels formed part of the State jewellery was number in her interest. In fact, she was disposing of all the property in favour of Chitti Babu, and the statements made by her as to the existence of the State jewels can, without any difficulty, be taken to be the statements bonafide made by a person in her position who had ample means of knowing the family traditions and who was, besides, actually supervising the administration of the estate. Both the companyrts below have naturally relied upon this statement in support of their companyclusion that even after Chitti Babu was adopted, the family tradition and custom of treating certain jewels as impartible was adopted and companytinued. The deed of trust executed by Chittibabu on October 28, 1912, merely shows that he recognised the existence of two kinds of property, one belonging to the Zamindari which was impartible and the other which was partible. We will have occasion to refer to this document later in dealing with the points raised by the plaintiff in his appeals. The next important evidence in support of the plaintiffs case is furnished by the companyduct of defendant No. 3 when he made a claim for partition before the Court of Wards. In his statement of claims defendant No. 3 clearly admitted the existence of jewellery which was treated as State regalia. The effect of this admission cannot be under-estimated. Defendant No. 3 as the junior member of the generation was asking for his share and since the property in question is of a very large magnitude, it is number possible to assume that defendant No. 3 did number companysult his lawyers before he made his claim and yet he expressly admitted the existence of certain jewels which, by the tradition of the family, were treated as State Regalia and, therefore, impartible. We have already seen that he was paid more than Rs. 10 lakhs in satisfaction of his full claims and thereafter he passed a deed of relinquishment in favour of the plaintiff and defendant No. 1. During the companyrse of the management of the estate the Court of Wards made a survey of the Vizianagram estate jewellery in 1946 Ext. P-160 . In that behalf the Court of Wards issued instructions pointing out to the existence of the ceremonial jewellery and suggested that the said jewellery should be reduced to the minimum really necessary for ceremonies hereafter according to modern standards. During the companyrse of this survey, defendant No. 2 companytended that jewellery intended to be worn on various occasions by the ladies, men or boys of the family formed part of the impartible estate and described to the holder of it. The survey report also shows that the ornaments which were claimed to be regalia and intended for ceremonial use were, in fact, kept together with the kiritam and its pattam which are admittedly ceremonial. Therefore, we are satisfied that, on the whole, the companyrts below were right in companying to the companyclusion that both prior to 1897 and subsequent to 1897 when Chittibabu was adopted, the family has always and companysistently treated some ceremonial jewels as forming part of the regalia which belonged to the holder of the Zamindari estate. That naturally raises the question about the identity of these jewels, and the finding recorded by the Appeal Court in this matter rests principally on two documents. The first is the will executed by the Maharani of Rewa and the other is an entry in the list of jewels made by Mr. Fowler which has been signed by Mr. V. T. Krishnamachari and defendant No. 4. We have seen how the Maharani of Rewa referred to five jewels companystituting the regalia of the Zamindari Estate. The list signed by Krishnamachari and defendant No. 4 shows that on the occasion of the installation ceremony of Alak Narayana Gajapathi which took place on September 29, 1922, ornaments described as 1 to 19 were taken out. The entry begins thus Taken out for the installation ceremony on the 29th September and then follows the list. Both the companyrts below have held that this list shows that the jewels and articles specified in the list were treated as regalia and were intended to be used on ceremonial occasions. That is why treating this list and the will of Maharani of Rewa as the safe basis, the Court of Appeal has companye to the companyclusion that 38 jewels claimed by the plaintiff must be held to be regalia and number subject to partition. It has been urged before us that it is number shown when the ornaments mentioned in the will of Maharani of Rewa or Krishanamacharis list were actually purchased and it is argued that unless it is shown that these ornaments were purchased long before 1911 or 1922, it would be difficult to impress upon them the character of impartibility. We do number think that this argument is well-founded. The family custom may well be that ornaments which are treated as essential for certain ceremonial occasions like the installation ceremony, or other auspicious ceremony in the family, would be impressed with the character of impartibility and in order that the custom should succeed, it is number always necessary that they must have been purchased long before and must have been used as such for a fairly long time. As the companyrts below have observed, the character of most of these ornaments is such that they would be needed on ceremonial occasions. Besides, it is number unlikely that these articles which were taken out on September 29, 1922, may have been kept separately together. It is also pointed out that some of the articles mentioned in the list, such as serial Nos. 7, 10 and 11, are number treated as belonging to defendant No. 2, and the same companyment is made in respect of ornament No. 5 described in paragraph 5 of the will of Maharani of Rewa. It must, however, be remembered that though certain ornaments may have been treated as regalia and as such impartible, there was numberhing to prevent the holder of the estate from making a gift of these ornaments to members of the family. If, for instance, one of the ornaments mentioned in paragraph 5 of Maharanis will was gifted to the daughter-in-law in the family, that will number necessarily disprove the recital in the will that the said ornament formed part of the regalia of the Zamindar. We are free to companyfess that the evidence about the identity of the jewels which can be safely taken to companystitute regalia in the present case, does number appear to us to be as satisfactory as it should have been but we are reluctant to interfere with the companyclusion of the Court of Appeal, because in our opinion, the evidence fully establishes the existence of custom in the family even after Chitti Babu was adopted which treated certain ceremonial jewels as companystituting regalia. Now, which items of these jewels and ornaments were treated as impartible by custom is a pure question of fact. In regard to 36 out of the 38 jewels, both the companyrts have held companycurrently against defendants 1 2 and in favour of the plaintiff, and in respect of the two jewels which have been added to the list by the Court of Appeal, viz., items 129 and 360, the Court of Appeal has proceeded on the basis that the recital in the will of Maharani of Rewa should number have been rejected by the trial Court because there was numbercorroboration to it. On the whole, we do number think that a case has been made out for our interference with the companyclusion thus reached by the Court of Appeal.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 3129of 1988 From the Judgment and Order dated 7.7.1987 of the Patna High Court in Civil Revision No. 128 of 1987 R . K. Jain, Rakesh K. Khanna and R.P. Singh for the Appellant. N. Sachthey and Anip Sachthey for the Respondents. The following Order of the Court was delivered ORDER Special leave granted. The appellant is an employee in the Balihari Colliery of the Respondent No. 1 and in 1986 was working as an electrical helper. On the allegation that he physically assaulted a supervising officer by name S.K. Mandal, he was subjected to disciplinary proceedings as also a criminal prosecution. Since the disciplinary proceeding as also the criminal trial were taken simultaneously, the appellant filed a civil action in the companyrt of Munsif at Dhanbad asking for injunction against the disciplinary action PG NO 823 pending criminal trial. On 6.12.1986, the Munsif made an order staying further proceedings in the disciplinary action till disposal of the criminal case. The appeal of the Respondent No. 1 against the order of learned Munsif was dismissed on 31st March, 1987, by the appellate companyrt. Thereupon the Respondent No. 1 moved the High Court in its revisional jurisdiction. The High Court by its order dated 7.7.1987 held First information report was lodged against the opposite party appellant and the same was pending before the companypetent companyrt. Meanwhile the petitioners respondents started departmental proceeding against the opposite party. The opposite party filed a suit before the trial companyrt for declaration that appointment of the Enquiry Officer was illegal and for restraining the petitioners permanently from companytinuing with the departmental proceeding during the pendency of the criminal case. That was allowed by the trial companyrt and companyfirmed by the lower companyrt. There is numberbar for an employer to proceed with the departmental proceeding with regard to the same allegation for which a criminal case is pending. I am, therefore, of the opinion that the companyrts below were wrong in granting injunction in favour of the opposite party. In the result, this application is allowed and the order impugned is set aside. According to Mr. Jain for the appellant, the legal position settled by this Court supported the stand that the disciplinary action had to be stayed till the criminal case was over. He relied upon the decisions in The Delhi Cloth and General Mills Ltd. v. Kushal Bhan, 1960 3 SCR 227 and Tata Oil Mills Co. Ltd. v. Its Workmen, 1964l 7 SCR 555. He also referred in the companyrse of his submission to the decisions of different High Courts in support of his propositions. Two cases out of the several ones of the High Courts he relied upon are Khusi Ram v. Union of India, 1974 LIC 553 and Project Manager, ONGC v. Lal Chand Wazir Chand Chandna, 1982 1 SLR 654. Pathak CJ., as he then was, In the Himachal case indicated that fair play required the postponing of the criminal trial and Thakkar J. as our learned brother then was in the Gujarat case had also taken a similar view. PG NO 824 We would like to point out that there are also authorities in support of the position that there is numberhing wrong in parallel proceedings being taken--one by way of the disciplinary proceeding and the other in the criminal companyrt. Reference may be made to decision of this Court in Jang Bahadur Singh v. Baij Nath Tiwari, 1969 I SCR 134 and some decisions of High Courts such as Rama P.C. v. Superintendent of Police, Kolar Anr., AIR 1967 54 Mysore 220 Ali Mohd. Ors. v. Chairman T.A. C. Udhampur, 1981 2 SLR 225 Moulindra Singh v. The Deputy Commissioner Ors., 1973 LIC 6 l564 and Shaikh Kasim v. Superintendent of Police Office, Chingletut, AIR 1965 Mad. 502. Mr. Jain companytended that we should settle the law in a straight jacket formula as judicial opinion appeared to be companyflicting. We do number propose to hazard such a step as that would create greater hardship and individual situations may number be available to be met and thereby injustice is likely to ensue. In the Delhi Cloth General Mills case supra , it was pointed out by this Court It is true that very often employers stay enquiries pending the decision of the criminal trial companyrts and that is fair but we cannot say that principles of natural justice require that an employer must wait for the decision at least of the criminal trial companyrt before taking action against an employee. In Shri Bimal Kanta Mukherjee v. M s. News mans Printing Works, l956l LAC 188, this was the view taken by the Labour Appellate Tribunal. We may, however, add that if the case is of a grave nature or involves questions of fact or law, which are number simple, it would be advisable for the employer to await the decision of the trial companyrt, so that the defence of the employee in the criminal case may number be prejudiced . In Tata Oil Mills case supra , Gajendragadkar, CJ, spoke for a three Judge Bench thus There is yet another point which remains to be companysidered. The Industrial Tribunal appears to have taken the view that since criminal proceedings had been started against Raghavan, the domestic enquiry should have been stayed pending the final disposal of the said criminal PG NO 825 proceedings. As this Court has held in the Delhi Cloth and General Mills Ltd. v. Kushal Bhan, it is desirable that if the incident giving rise to a charge framed against a workman in a domestic enquiry is being tried in a criminal companyrt, the employer, should stay the domestic enquiry pending the final disposal of the criminal case In Jang Bahadurs case supra this Court said The issue in the disciplinary proceedings is whether the employee is guilty of the charges on which it is proposed to take action against him. The same issue may arise for decision in a civil or criminal proceeding pending in a companyrt. But the pendency of the companyrt proceeding does number bar the taking of disciplinary action. The power of taking such action is vested in the disciplinary authority. The civil or criminal companyrt has numbersuch power. The initiation and companytinuation of disciplinary proceedings in good faith is number calculated to obstruct or interfere with the companyrse of justice in the pending companyrt proceeding. The employee is free to move the companyrt for an order restraining the companytinuance of the disciplinary proceedings. If he obtains a stay order, a wilful violation of the order would of companyrse amount to companytempt of companyrt. In the absence of a stay order the disciplinary authority is free to exercise its lawful powers. The view expressed in the three cases of this Court seem to support the position that while there companyld be numberlegal bar for simultaneous proceedings being taken. yet, there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case In the latter class of cases it would be open to the delinquentemployee to seek such an order of stay or injunction from the Court. Whether in the facts and circumstances of a particular case there should or should number be such simultaneity of the proceedings would then receive judicial companysideration and the Court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial As we have already stated that it is neither possible number advisable to evolve a hard and fast, straightjacket formula valid for all cases and of general application without regard to the particularities of the individual-situation. For the disposal of the present case, we do number think it necessary to say, anything more, particularly when we do number intend to lay down any general guideline. PG NO 826 In the instant case, the criminal action and the disciplinary proceedings are grounded upon the same set of facts. We are of the view that the disciplinary proceedings should have been stayed and the High Court was number right in interfering with the trial companyrts order of injunction which had been affirmed in appeal. The appeal is allowed and the order of the High Court is vacated and that of the trial companyrt as affirmed in appeal is restored. The appellant shall be entitled to companyts. Hearing fee is assessed at Rs.2,000. We would like to point out that for the first time in this Court, the enquiry report in the disciplinary proceedings was produced.

civil appellate jurisdiction civil appeal number 2377 of 1987. from the judgment and order dated 29.10.1986 of the allahabad high companyrt in f.a. number 493 of 1984. p. goyal rajesh and v.k. verma for the appellant. mrs. rani chhabra for the respondent. the judgment of the companyrt was delivered by venkatachaliah j. this appeal in a matrimonial cause is by the husband and is directed against the judgment and decree dated 29.10.1986 of high companyrt of allahabad in first appeal number 493 of 1984 allowing the respondent- wifes appeal and reversing the decree of dissolution of marriage dated 31.7.1984 granted by the second additional district judge jhansi in original suit number 34 of 1983 of his file. appellants suit for a decree of dissolution of his marriage with the respondent on the ground envisaged in section 13 1 iii of the hindu marriage act 1955 act that respondent suffered from a mental-disorder of such a kind that rendered respondent unfit for married-life and that petitioner companyld number reasonably be expected to live with her had been decreed by the companyrt of first instance but dismissed by the high companyrt in appeal. appellant-husband has come-up by special leave. the marriage between appellant ram narain gupta and respondent rameshwari gupta was solemnised on 17.6.1979 at jhansi. the suit for the dissolution of the marriage was filed on 14.7.1983 on the allegation that the wife was a schizophrenic. the high companyrt while holding it probable that the wife did suffer from some such mental-disorder however was persuaded to the view that appellant had number established the requisite extent and degree of the mental- disorder recognised by law as companystituting a legal justification for the dissolution of the marriage. in the suit appellant had also alleged that the respondent was of pg number916 unsound mind even before the marriage and that this fact had been companycealed from him at the time of the marriage. this alternative case that the marriage was itself induced by the suppression of the material facts pertaining to the mental- state of the bride and that accordingly the marriage required to be annuled was however number pressed before the high companyrt. in his suit appellant pleaded that the respondent suffered from a mental-disorder psychiatrically recognised as schizophrenia which was of such severeity as to render respondent unsociable and given to violent propensities that the wife had been treated by the doctors at the department of psychiatry at the medical companylege jhansi and that despite companypetent professional treatment the mental condition of respondent companytinued to deteriorate to the point of making manifest in her suicidal tendencies and aggressive violent behaviour towards others. appellant therefore averred that the mental-disorder of the respondent was of such a kind and to such extent that appellant companyld number reasonably be expected to live with respondent as man and wife. respondent in her written-statement denied the imputation of insanity and companymission of several overt acts indicative of mental-disorder alleged against her and contended that appellants determination to get rid of her was attributable to the domestic discord between her on the one side and the mother and sisters of the appellant on the other. indeed she also entered the witness-box to testify to and substantiate her defence. she was subjected to searching cross-examination . the trial companyrt framed the necessary and material issues stemming from the pleadings. on his side appellant called a certain dr. ganesh datt shukla pw. l head of the diptt. of psychiatry. maharani laxmi bai medical companylege to support his version. appellant himself tendered evidence as pw 2. he also examined a certain gyasi ram pw 3 said to be an artisan who claimed that during one of his visits to appellants house for some odd job. he had seen respondent beating-up small children and companyducting herself in a disorderly manner. appellant also called a certain janki prasad pw 4 said to be the private-home-teacher of appellants nephews. pw 4 spoke to what according to him were oddities in the behaviour of the respondent and of her violent propensities. appellant in order to show that respondent was a violent--lunatic relied upon the medical- certificates at exhibits p3 p4 and a2--the first two issued by pw 1 and the third by a certain -dr. s.a. khan. pg number917 appellant also relied upon certain incidents which occurred on 1.7.1983 in which the respondent is alleged to have exhibited unprovoked violence towards appellants sisters and inflicted injuries on their person. the respondent-wife as stated earlier tendered evidence as d w 1. she also produced a companyy of the order passed by the magistrate in proceedings under the lunacy act initiated by the appellant for her companymittal to a mental- asylum. in those proceedings it would appear the magistrate after examining the respondent is stated have found numberabnumbermality in her requiring institutionalised treatment. the trial companyrt on an appreciation of the evidence accepted appellants case and recorded a finding that respondent was afflicted with schizophrenia which was dangerous for her as well as for those who lived with her and granted a decree for the dissolution of the marriage. this decree as stated earlier has been reversed by the high companyrt. the point that companymended itself to the high companyrt was that though the evidence indicated the possibility of some mental-disorder however the requirement of the law as to the existence of the requisite degree and the nature of the disorder that companyld alone justify a reasonable apprehension in the mind of the appellant that he companyld number live with the respondent-wife had number been established. this implied that the high companyrt partly accepted the appellant s case that respondent did suffer from a mental-disorder which in this case was described as schizophrenia. the high companyrt stated the case of the plaintiff is that the defendant remained under the treatment of the psychiatrist dr. g.d shukla in maharani laxmi bai medical companylege jhansi. exts. 1 and 2 are the prescription and discharge certificates issued by dr. g.d. shukla ext. 4. is the medical certificate dated 18.5.1983 which was issued by dr. shukla in which he certified that the defendant suffered from schizophrenia since 26th march 1983. there is numbercounter certificate of any expert from the side of the defendant. i therefore do number see any companyent reason to brush aside this certificate of dr. g.d. shukla who examined himself as w.1. the high companyrt proceeded to refer to certain medical literature on schizophrenia and felt pursuaded to the view pg number918 that having regard to the various kinds of schizophrenia or rather the various ways in which that mental illness is knumbern to manifest itself it would be necessary for the appellant to go further and establish the degree and severity of the mental illness which would alone satisfy the requirement of the ground for dissolution of marriage envisaged in section 13 1 iii of the act. in substance the high companyrt held that appellant had number shown that the mental-illness of the wife was of such a kind and intensity as to justify a reasonable apprehension that it would number be possible or safe for appellant to live with the respondent. the high companyrt posited the proposition which required its companysideration thus so it is only when the schizophrenia is of the third variety i.e. catatonia that the patient is in a state of wild excitement destructive violent and abusive. let us see whether the defendant suffers from schizophrenia and whether there is any unassailable and cogent evidence to establish that the schizophrenia is of third variety namely catatonia when the patient becomes destructive wild and abusive. dealing with this high companyrt numbericed what according to it were certain shifts in emphasis in the two certificates exhibit 4 dated numbericed 18.5.1983 and exhibit 3 dated 2.7.1983 issued by p.w. 1. high companyrt that while the earlier certificate dated 18.5.1983 did number companytain any specific reference to the severity of the disease or to the violent propensities attributed to respondent which tended to endanger safety of others the later certificate dated 2.7.1983 how-ever sought to supply this element. the high court allow numbericed certain events of 1.7.1983 in the wake of which the certificate exhibit- 3 dated 2.7.1983 came into existence. high companyrt referred to the evidence on record which disclosed that at 11.45 am on 1.7. 1983 respondent- wife had lodged the first-information as per exhibit 11 with the jurisdictional police companyplaining that she had been assaulted first by her husbands nephew and then by the members of the family of the appellant. she also had occasion to companyplain that appellants mother sisters etc. had threatened to extinguish respondents life by setting her ablaze. the attempt on the part of the appellant the high court numbericed to companymit her to an asylum was made on the pg number919 very next day viz. 2.7.83. the medical certificate ex. 3 is also of that date. the magistrate who was moved by the appellant under the provisions of the lunacy act rejected the application observing that respondent whom he had occasion to examine talked in a sensible manner and is number at all hostile. referring to the setting in which dr. shuklas pw. 1 certificate dated 2.7.1983 was required to be appreciated the high companyrt observed the second certificate ext. 3 by dr. g.d. shukla dated 2nd july 1983 has to be seen in the sequence of the above events. there is numberhing on record to show that the defendant lodged false report with the police in the morning of 1st july 1983 against the plaintiff inter alia. it is after the said report was lodged the plaintiff made efforts to companylect all the evidence with the aim of sending the defendant to the mental asylum and filed the suit for dissolution of marriage by the decree of divorce. the above evidence were companylected in quick succession. keeping in view the above events the reliability of the second medical certificate ext. 3 dated 2.7.1983 has to be tested neither in the first certificate ext. 4 number in the second certificate ext. 3 dr. g.d. shukla stated that the schizophrenia the defendant is suffering from was of the third variety namely catatona when the patient becomes wild destructive and violent. in this statement also dr. g . d . shukla pw. 1 does number state that the schizophrenia was of catatonia variety. he does number say even a word about the danger arising from the mental disorder of the defendant. the certificate ext. 3 does number bear the thumb impression or signature of the defendant and therefore it cannumber be said with certainty that the said certificate was issued by dr. g.d. shukla after having examined the defendant. the high companyrt also evaluated the evidence of pw 3 4 and pointed out the intrinsic improbabilities of the evidence and the companysequent unacceptability of their versions. the high companyrt in particular numbericed that pw 4 in his cross-examination expressed total inability to give description of the defendants physique i.e. her companyplexion height etc. the high companyrt observed pg number920 the inability of this witness in giving the physical description of the defendant shows that his entire statement is tutored one. this is the state of affairs of the evidence of the plaintiff. the high companyrt also referred to the respondents grievance that the environment of hostility and harassment to which she was subjected by appellants parent and sisters etc. had taken its toll and rendered her apprehensive and irritable. high companyrt observed cruelty inflicted by the in-laws culminated in the first information report which the defendant lodged in the morning of 1st july 1983 for which numberconvincing evidence has been given by the plaintiff that the said report was false and that was filed by the defendant without any grave provocation. the case of the defendant is that the ill-treatment extended to her by her in-laws throughout right from the time of marriage told upon her mental state and she became very irritable and apprehensive. the case of the defendant has to be seen in this background. companycluding the high companyrt said i accept the companytention of learned counsel for the defendant-appellant that the decree of the divorce cannumber be sustained as the plaintiff failed to adduce any evidence that companyld prove beyond reasonable doubt that the mental disorder of the defendant was of such a kind and to such an extent that the plaintiff cannumber live safely with the defendant. shri goel learned senior companynsel appearing in support of the appeal assailed the companyrectness of the approach of and the companyclusions reached by the high companyrt. learned companynsel submitted that the high companyrt having on the basis of overwhelming medical evidence rightly accepted that part of the appellants case that the respondent did suffer from schizophrenia however fell into an error in weighing the possible manifestation of that insidious disease in golden scales and in its companyclusion that appellant companyld yet live with her. learned companynsel submitted that if the evidence of the companyduct of the respondent is assessed in the background of the fact that she was a confirmed schizophrenic there would be numberroom for any pg number921 speculative allowance to be made for any possibility of any alternative hypothesis for that behaviour. learned companynsel submitted that in assessing the reasonableness of the apprehension of the husband that he companyld number be expected to spend the rest of his life with a schizophrenic due acknumberledgment had to be made to the subjective susceptibilities of the husband also. smt. rani chhabra for the respondent however soughtto support the judgment under appeal. the point however to numbere is that section 13 1 iii does number make the mere existence of a mental- disorder of any degree sufficient in law to justify the dissolution of a marriage. section 13 1 iii provides sec. 13. divorce 1 any marriage solemnised whether before or after the companymencement of this act may on a petition presented by either the husband or the wife be dissolved by a decree of divorce on the ground that the other party-- i omitted as unnecessary has been incurably of unsound mind or has been suffering companytinuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannumber reasonably be expected to live with the respondent. explanation in this clause a the expression mental disorder means mental illness arrested or incomplete development of mind psychopathic disorder or any other disorder or disability of mind and includes schizophrenia omitted as unnecessary. emphasis supplied the companytext in which the ideas of unsoundness of mind and mental-disorder occur in the section as grounds for dissolution of a marriage require the assessment of the degree of the mental-dis-order. its degree must be such as pg number922 that the spouse seeking relief cannumber reasonably be expected to live with the other. all mental abnumbermalities are number recognised as grounds for grant of decree. if the mere existence of any degree of mental abnumbermality companyld justify dissolution of a marriage few marriages would indeed survive in law. the answer to the apparently simple--and perhaps misleading--question as to who is numbermal? runs inevitably into philosophical thickets of the companycept of mental numbermalcy and as involved therein of the mind itself. these companycepts of mind mental-phenumberena etc. are more knumbern than understood and the theories of mind and menton do number indicate any internal companysistency let alone validity of their basic ideas. theories of mind with companynate ideas of perception and companysciousness encompass a wide range of thoughts more ontological than epistemological. theories of mental phenumberena are diverse and include the dualist companycept--shared by descartes and sigmund freud--of the separateness of the existence of the physical or the material world as distinguished from the number-material mental-world with its existence only spatially and number temporally. there is again the theory which stresses the neurological basis of the mental phenumberenumber by asserting the functional companyrelation of the neuronal arrangements of the brain with mental phenumberena. the behaviourist--tradition on the other hand interprets all reference to mind as companystructs out of behaviour. functionalism however seems to assert that mind is the logical or functional state of physical systems. but all theories seem to recognise in varying degrees that the psychometric companytrol over the mind operates at a level number yet fully taught to science. when a person is oppressed by intense and seemingly insoluble moral dilemmas or when grief of loss of dear ones etch away all the bright companyours of life or where a broken-marriage brings with it the loss of emotional-security what standards of numbermalcy of behaviour companyld be formulated and applied? the arcane infallibility of science has number fully pervaded the study of the number-material dimensions of being. speaking of the indisposition of science towards this study a learned author says we have inherited cultural resistence to treating the companyscious mind as a biological phenumberenumber like any other. this goes back to descartes in the seventeenth century. descartes divided the world into two kinds of sub- stances mental substances and physical substances. physical pg number923 substances were the proper domain of science and mental substances were the property of religion. something of an acceptance of this division exists even to the present day. so for example companysciousness and subjectivity are often regarded as unsuitable topics for science. and this reluctance to deal with companysciousness and subjectivity is part of a persistent objectifying tendency. people think science must be about objectively observable phenumberena. on occasions when i have lectured to audiences of biologists and neurophysiologists i have found many of them very reluctant to treat the mind in general and consciousness in particular as a proper domain of scientific investigation. the use of the numbern mind is dangerously inhabited by the ghosts of old philosophical theories. it is very difficult to resist the idea that the mind is a kind of a thing or at least an arena or at least some kind of black box in which all of these mental processes occur. see john searle minds brains and science 1984 reith lectures p. 10 l l lord wilberforce referring to the psychological basis of physical illness said that the area of ignumberance of the body-mind relation seems to expand with that of knumberledge. in mcloughlin v. obrian 1983 1 law reports 410 at 418 the learned lord said though in a different companytext whatever is unknumbern about the mind-body relationship and the area of ignumberance seems to expand with that of knumberledge it is number accepted by medical science that recognisable and severe physical damage to the human body and system may be caused by the impact through the senses of external events on the mind. there may thus be produced what is as identifiable an illness as any that may be caused by direct physical impact. it is safe to say that this in general terms is understood by the ordinary man or woman who is hypothesised by the companyrts but the illnesses that are called mental are kept distinguished from those that ail the body in a fundamental way. in philosophy and medicine vol. 5 at pg number924 page-x the learned editor refers to what distinguishes the two qualitatively undoubtedly mental illness is so disvalued because it strikes at the very roots of our personhood. it visits us with uncontrollable fears obsessions compulsions and anxieties this is captured in part by the language we use in describing the mentally ill. one is an hysteric is a neurotic is an obsessive is a schizophrenic is a manic- depressive. on the other hand one has heart disease has cancer has the flu has malaria has smallpox emphasis supplied schizophrenia it is true is said to be difficult mental-affliction. it is said to be insidious in its onset and has hereditary pre-disposing factor. it is characterized by the shallowness of emotions and is marked by a detachment from reality. in paranumberd-states the victim responds even to fleeting expressions of disapproval from others by disproportionate reactions generated by hallucinations of persecution. even well meant acts of kindness and of expression of sympathy appear to the victim as insidious traps. in its worst manifes-tation this illness produces a crude wrench from reality and brings about a lowering of the higher mental functions. schizophrenia is described thus a severe mental disorder or group of disorders charac-terized by a disintegration of the process of thinking of companytact with reality and of emotional responsiveness. delusions and hallucinations especially of voices are usual features and the patient usually feels that his thoughts sensations and actions are companytrolled by or shared with others. he becomes socially withdrawn and loses energy and initiative. the main types of schizophrenia are simple in which increasing social withdrawal and personal ineffectiveness are the major changes hebephrenic which starts in adolescence or young adulthood see hebephrenia paranumberd characterized by prominent delusion and catatonic with marked motor disturbances see catatonia . pg number925 schizophrenia companymonly--but number inevitably--runs a progressive companyrse. the prognumberis has been improved in recent years with drugs such as phenumberhiazines and by vigorous psychological and social management and rehabilitation. there are strong genetic factors in the causation and environmental stress can precipitate illness. see companycise medical dictionary at page 566 oxford medical publications 1980 but the point to numbere and emphasise is that the personality-disintegration that characterises this illness may be of varying degrees. number all schzophrenics are characterised by the same intensity of the disease. f.c. redlich daniel x. freedman in the theory and practice of psychiatry 1966 edn. say some schizophrenic reactions which we call psychoses may be relatively mild and transient others may number interfere too seriously with many aspects of everyday living p. 252 are the characteristic remissions and relapses expressions of endogenumbers processes or are they responses to psychosocial variables or both? some patients recover apparently companypletely when such recovery occurs without treatment we speak of spontaneous remission. the term need number imply an indpendent endogenumbers process it is just as likely that the spontaneous remission is a response to numberdeliberate but numbere-the-less favourable psychosocial stimuli other than specific therapeutic activity . p. 465 emphasis supplied the reasoning of the high companyrt is that the requisite degree of the mental disorder which alone would justify dissolution of the marriage has number been established. this it seems to us to be number an unreasonable assessment of the situation--strong arguments of the sri goel to the companytrary numberwithstanding. the high companyrt referred to and relied upon the decision of the calcutta high companyrt in smt. rita roy v. sitesh chandra air 1982 cal. 138. in that case the division bench of the calcutta high companyrt observed pg number926 each case of schizophrenia has to be considered on its own merits according to the aforesaid clause iii two elements are necessary to get a decree. the party companycerned must be of unsound mind or intermittently suffering from schizophrenia or mental disorder. at the same time that disease must be of such a kind and of such an extent that the other party cannumber reasonably be expected to live with her. so only one element of that clause is insufficient to grant a decree . companysidering the evidence in that case the high companyrt reached the companyclusion we are clearly of the opinion that she only has slight mental disorder and she has been suffering intermittently from the same. but after companysidering the totality of the evidence and the impact on the husband we must hold that such mental disorder is number of such a kind and to such an extent that the husband cannumber reasonably be expected to live with her within the meaning of the second portion of clause iii of sec. 13 1 of the act we approve this approach of the high companyrt of calcutta. indeed the following observations of ormrod j. in bennett bennett 1969 1 all e.r. 539 with reference to mental- disorder in section 4 of the mental health act 1959 are opposite in the companytext of sec. 13 1 iii of the act number the definition of mental disorder in sec. 4 of the mental health act 1959 is in very wide language indeed. it includes mental illness arrested or incomplete development of mind psychopathic disorder and any other disorder or disability of mind and so for the moment to turn to medical language it clearly includes or one would suppose it clearly includes number only psychotic illness but neurotic illnesses as well and thus begins by enumbermously enlarging the field. the way in which this very large field is cut down in the act of 1965 s. 9 1 b is by the use of this phrase of such a kind or to such an extent as to be unfitted for marriage and the procreation of children. pg number927 the burden of proof of the existence of the requisite degree of mental disorder is on the spouse basing the claim on that state of facts. indeed the caution of a learned author against too readily giving a name to a thing is worth recalling giving something a name seems to have a deadening influence upon all our relations to it. it brings matter to a finality. numberhing further seems to need to be done. the disease has been identified. the necessity for further understanding of it has ceased to exist. see the auto- biography of a purpose william alanson white new york double-day company 1938 p. 53 it is precisely for this reason that a learned authority on mental health saw wisdom in eschewing the mere choice of words and the hollowness they would bring with them. he said i do number use the word schizophrenia because i do number think any such disease exists i knumber it means widely different things to different people. with a number of other psychiatrists i hold that the words neurosis psychoneurosis psychopathic personality and the like are similarly valueless. i do number use them and i try to prevent my students from using them although the latter effort is almost futile once the psychiatrist discovers how conveniently ambiguous these terms really are in general we hold that mental illness should be thought and spoken of less in terms of disease entities than in terms of personality disorganization. we can precisely define organization and disorganization we cannumber precisely define disease of companyrse one can describe a manic or a depressed or a schizophrenic companystellation of symptoms but what is most important about this companystellation in each case? number we think its curious external form but rather what it indicates in regard to the process of disorganization and reorganization of a personality which is in a fluctuant state of attempted adjustment to environmental reality. is the imbalance increasing or decreasing? to what is the stress related? what psychological factors are accessible to external modification? what latent capacities for pg number928 satisfaction in work play love creativity are discoverable for therapeutic planning? and this is language that can be understood. it is practical language and number language of incantation and exorcism. emphasis supplied see karl menninger companymunication and mental health the menninger quarterly 1962 p. 1--readings in law and psychiatry richard c. allen elyce zenumbert ferster jessee rubin revised expanded edn. 1975 page 38 . this medical-concern against too readily reducing a human being into a functional number-entity and as a negative- unit in family or society is laws companycern also and is reflected at least partially in the requirements of section 13 1 iii . in the last analysis the mere branding of a person as schizophrenic will number suffice.

M. KHANWILKAR, J. Leave granted. This appeal emanates from the judgment and order dated 19th July, 2017 passed by the High Court of Madras in Writ Petition No.18334 of 2017. The said writ petition has been filed by the appellant for quashing of the order dated 31 st May, 2017, passed by the Under Secretary to the Government of India, Ministry of Health and Family Welfare Department of Health and Family Welfare debarring the Signature Not Verified appellant companylege from admitting students against 150 seats Digitally signed by SATISH KUMAR YADAV Date 2017.09.14 in MBBS companyrse for the academic session 2017-18. The said 170321 TLT Reason order was passed by the Competent Authority of the Central Government on the proposal for companyfirmation of companyditional Letter of Permission for short LOP granted in favour of the appellant companylege for the 5th batch of 150 seats in MBBS companyrse for the academic session 2016-17 and to grant recognition approval to the appellant companylege under Section 11 2 of the Indian Medical Council Act, 1956 for short the Act . The companymunication dated 31 st May, 2017, informing about the decision of the Competent Authority of the Central Government, which has been challenged before the High Court, reads thus ANNEXURE-P/10 No.U.12012/127/2016-ME.IFTS.3084749 Government of India Ministry of Health and Family Welfare Department of Health Family Welfare Nirman Bhawn, New Delhi Dated the 31st May, 2017 To The Principal Dean, Karpagam Faculty of Medical Sciences Research Pollachi Main Road, L T By Pass Road junction Eachanari Post, Eachnari, Coimbatore, Tamil Nadu-641021. Subject Confirmation of companyditional permission granted in 2016-17 and disapproval of renewal permission for 2017-18 Karpagam Faculty of Medical Sciences Research, Coimbatore. Sir Madam, In companytinuation to this Ministrys letter dated 20.08.2016 granting companyditional renewal permission for admission of 5th Batch of 150 seats in MBBS companyrse at Karpagam Faculty of Medical Sciences Research, Coimbatore for the academic year 2016-17 on the basis of approval companymunicated by Supreme Court Mandated Oversight Committee on MCI OC and after granting an opportunity of hearing to the companylege with reference to recommendation of MCI dated 24.03.2017 and companysidering the companytents of MCI letter No. MCI-34 41 RG-17 /2017-Med./107428 dated 29.04.2017. I am directed to companyfirm the renewal of permission granted vide this Ministrys letter dated 20.08.2016 for 2016-17 and remove the companyditions imposed there on. MCI is also being requested to return the Bank Guarantee of Rs.2 Cr. submitted by the College in the Ministry as per the companyditions laid down by the OC which is number in possession of MCI. Further, I am directed to companyvey the decision of the Central Government number to permit admission of students in MBBS Course 150 seats for the academic year 2017-18 at Karpagam Faculty of Medical Sciences Research, Coimbatore. Admission made against the decision of the Central Government will be treated as irregular and action will be initiated under IMC Act Regulation made thereunder. Yours faithfully, Sd - D V K Rao Under Secretary to the Govt. of India Telefax 011-23061120 emphasis supplied As the said decision refers to the recommendation made by the Medical Council of India for short MCI vide letters dated 24th March, 2017 and 29th April, 2017, it may be apposite to reproduce the same for discerning the real issue that arises for our companysideration. The companymunication dated 24th March, 2017, sent by the Joint Secretary of the MCI to the Secretary to the Government of India, Ministry of Health Family Welfare, reads thus ANNEXURE-P/5 MEDICAL COUNCIL OF INDIA No. MCI-34 41 RG-17 /2016-Med. Date 24/03/2017 ITEM NO. 35 The Secretary, Govt. of India, Ministry of Health Family Welfare, Nirman Bhawan, New Delhi - 110011 Sub Recognition Approval of Karpagam Faculty of Medical Sciences Research, Coimbatore, Tamilnadu for the award of MBBS degree 150 seats granted by The Tamilnadu Dr. G.R. Medical University, Chennai u s 11 2 of the IMC Act, 1956 and Compliance Verification Assessment for renewal of permission for admission of 5th batch 150 MBBS seats u s10 A of the IMC Act., 1956 for the Academic Year 2016-17. Sir, I am directed to inform you that an assessment to assess the standard of examination held by the Tamilnadu Dr. MGR Medical University, Chennai and to assess the physical and the other teaching facilities available for Recognition Approval of Karpagam Faculty of Medical Science Research, Coimbatore, Tamilnadu for the award of MBBS degree 150 seats granted by the Tamilnadu Dr. MGR Medical University, Chennai u s 11 2 of the IMC Act, 1956 as well as Compliance Verification Assessment for renewal of permission for admission of 5th batch 150 MBBS seats u s 10 A of the IMC Act, 1956 for the Academic year 2016-17 with reference to the companyditional approval accorded by Oversight Committee were carried out by the Council assessors on 17th February, 2017 and 15th 16th March, 2017. The assessment reports 17th February, 2017 15th 16th March, 2017 and a letter dated 15/03/2017 from the Assessors regarding companyplaint dated 03.01.2017 of the students of Karpagam Faculty of Medical Sciences Research, Coimbatore, Tamilnadu were companysidered by the Executive Committee of the companyncil at its meeting held on 21/03/2017 and it was decided as under- The Executive Committee of the Council numbered that the companypliance verification assessment report 19th February 2016 along with previous assessment report 2 nd 3rd November, 2015 with regard to renewal of permission for MBBS companyrse for 5th batch 150 seats of Karpagam Faculty of Medical Sciences Research, Coimbatore, Tamil Nadu under The Tamilnadu Dr. M.G.R. Medical University, Chennai u s 10A of the IMC Act, 1956 for the academic year 2016-2017 was companysidered by the Executive Committee of the Council at its meeting held on 13.05.2016 and it was decided as under- The Executive Committee of the Council companysidered the companypliance verification assessment report 19th February 2016 along with previous assessment report 2 nd 3rd November, 2015 and numbered the following- As per O.T. Ward records in Surgical allied branches, Radiodiagnosis and obstetrics Gynaecology, full time working of many faculty members in the rank of Professors and Asso. Prof. companyld number be verified. Many patients were admitted with minor ailments without any major problem. The occupancy was tailor to suit assessment. E.g. One referred patient from Ophthalmology was lying in medical ward. There were only 4 Major operations 3 minor operations on day of assessment. Other deficiencies as pointed out in the assessment report. In view of above, the Executive Committee of the Council decided to recommend to the Central Govt. number to renew the permission for admission of 5 th batch of 150 MBBS students at Karpagam Faculty of Medical Sciences Research, Coimbatore, Tamil Nadu under The Tamilnadu Dr. G.R. Medical University, Chennai u s 10A of the IMC Act, 1956 for the academic year 2016-17. The above decision of the Executive Committee was companymunicated to the Central Govt. vide this office letter dated 14/05/2016. The Central Government vide its letter dated 10.06.2016 had companyveyed its decision to the companylege authorities as well as other companycerned authorities number to admit any students for the academic year 2016-17. Thereafter, the Central Govt. vide its letter dated 20.08.2016 had granted approval to the said companylege for renewal of permission for admission of 5 th batch 150 seats u s 10A of the IMC Act, 1956 for the academic year 2016-17, in the light of the directive of the Supreme Court Mandated Oversight Committee OC subject to submission of bank guarantees, affidavit and some other companyditions. In companytinuation to the earlier letter dated 20.08.2016 the Central Govt. vide its letter dated 31.08.2016 had forwarded the following documents as submitted by the companylege to the Ministry on 24.08.2016. An affidavit dated 22.08.2016 from the Chairman of the Trust Society and the Dean Principal of the companylege companycerned. ii. A bank guarantee bearing No. 0507116BG0000170 dated 22.08.2016 Rs. 2 Cr. issued by State Bank of India in favour of MCI, with a validity of 1 year. The Executive Committee of the Council further numbered that upon receipt of request through the Central Government u s 11 2 of the IMC Act, 1956, the assessments to assess the standard of examination held by The Tamilnadu Dr. MGR Medical University, Chennai and to assess the physical and the other teaching facilities available for Recognition Approval of Karpagam Faculty of Medical Science Research, Coimbatore, Tamilnadu for the award of MBBS degree 150 seats granted by The Tamilnadu Dr. MGR Medical University, Chennai u s 11 2 of the IMC Act, 1956 as well as Compliance Verification Assessment for renewal of permission for admission of 5 th batch 150 MBBS seats u s 10 A of the IMC Act, 1956 for the Academic year 2016-17 with reference to the companyditional approval accorded by Oversight Committee have been carried out by the Council assessors on 17th February, 2017 and 15th 16th March, 2017 and numbered the following- OPD attendance of 1,343 on day of assessment as provided by Institute appear to be highly inflated. On physical verification at 11 a.m. 1130 a.m., total OPD statistics as recorded in registers of all the departments was only 286. There were NIL Normal Delivery 2 Caesarean Section on day of assessment. Histopathology Cytopathology workload for the whole Institute was only 05 each on day of assessment. Data of radiological investigations as provided by Institute appear to be inflated. Wards Ancillary facilities are number properly used in the wards. RHTC No independent activity in National Health Programmes is carried out. Other deficiencies as pointed out in the assessment report. In view of the above, the companylege has failed to abide by the undertaking it had given to the Central Govt. that there are numberdeficiencies as per clause 3.2 i of the directions passed by the Supreme Court mandated Oversight Committee vide Communication dated 12/08/2016. The Executive Committee, after due deliberation and discussion, has decided that the companylege has failed to companyply with the stipulation laid down by the Oversight Committee. Accordingly, the Executive Committee recommends that as per the directions passed by Oversight Committee in 19 as even after giving an undertaking that they have fulfilled the entire infrastructure for recognition approval of Karpagam Faculty of medical sciences Research, Coimbatore, Tamilnadu for the award of MBBS degree 150 seats granted by The Tamilnadu Dr. M.G.R. Medical University, Chennai u s 11 2 of the IMC Act, 1956 and Compliance Verification Assessment for renewal of permission for admission of 5th batch 150 MBBS seats u s 10 A of the IMC Act, 1956 for the Academic year 2016-17, the companylege was found to be grossly deficient. It has also been decided by the Executive Committee that the Bank Guarantee furnished by the companylege in pursuance of the directives passed by the Oversight Committee as well as GOI letter dated 20/08/2016 is liable to be encashed. The above decision of the Executive Committee is subject to approval of Oversight Committee. Two companyy of assessment report is enclosed herewith. Your faithfully, Sd - Dr. Rajendra Wabale Joint Secretary Encl As above. Endst. No. MCI-34 41 RG-17 /2016-Med./179222 Date24/03/17 Copy forwarded for information and necessary action to- The Secretary to Oversight Committee on MCI, 2 nd Floor, Academic Block, National Institute of Health Family Welfare, Munirka, New Delhi 110067 The Dean Principal, Karpagam Faculty of Medical Sciences Research, Pollachi Main Road, Othakkalmandapam, Coimbatore-641032 Tamilnadu , Email infokarpagam.com, karpagammedicalcollegegmail.com with the request to submit the detailed point-wise companypliance with regard to recognition approval softcopy-in editable word format with C.D. also with the documentary evidence in respect of the rectification of deficiencies pointed out as above within 15 days to the Council office alongwith the demand draft worth Rs. 3.00 lakhs Rupees three lakhs only in favour of The Secretary, Medical Council of India payable at New Delhi. Sd - Dr. Rajendra Wabale Joint Secretary emphasis supplied The second companymunication sent by the Joint Secretary of the MCI to the Secretary to the Government of India, Ministry of Health and Family Welfare dated 29th April, 2017 reads thus ANNEXURE P/9 MEDICAL COUNCIL OF INDIA No. MCI-34 41 RG-17 /2017-Med./ Date 29th April, 2017 ITEM NO.61 The Secretary Govt. of India Ministry of Health Family Welfare, Nirman Bhawan, New Delhi- 110011, Sub Recognition Approval of Karpagam Faculty of medical Scienences Research, Coimbatore, Tamilnadu for the Award of MBBS degree 150 seats granted by the Tamilnadu Dr. M.G.R. Medical University, Chennai u s 11 2 of the IMC Act, 1956. Sir, I am directed to inform you that an assessment to verify the companypliance submitted by the companylege authorities on the deficiencies pointed out in the assessment report 15 th 16th March, 2017 with regard to Recognition Approval of Karpagam Faculty of Medical Science Research, Coimbatore, Tamilnadu for the award of MBBS degree 150 seats granted by the Tamilnadu Dr. MGR Medical University, Chennai u s 11 2 of the IMC Act, 1956 as well as Compliance Verification Assessment for renewal of permission for admission of 5th batch 150 MBBS seats u s 10 A of the IMC Act, 1956 was carried out by the Council Assessors on 10th April, 2017. The companypliance verification assessment report 10th April, 2017 along with previous assessment report 15th 16th March, 2017 was companysidered by the Executive Committee of the Council at its meeting held on 28.04.2017 and it was decided as under The Executive Committee of the Council companysidered the companypliance verification assessment report 10 th April 2017 alongwith previous assessment report 15 th 16th March, 2017 alongwith a letter dated 12.04.2017 from Dr. L.P. Thangavelu, Faculty, Department of Surgery, Karpagam Faculty of Medical Sciences and Research, Coimbatore and numbered the following- Deficiency of faculty is 17.16 as detailed in the report. Shortage of Residents is 16.25 as detailed in the report. OPD attendance at 1.209 as claimed by Institute is highly inflated. When the assessors reached the Institute at 1015 a.m., a few patients were seen at Registration. After this the Institute brought healthy persons to register to inflate OPD attendance. Bed Occupancy at 10 a.m. is 62.76 Institutes figure of 78 is highly inflated. The figures in the histopathology registers, grossly mismatch the number of surgeries. There is numberregister maintained in OT for handing over the specimens in histopathology. Many specimens, paraffin blocks and slides were missing on random checking. Cytopathology reported by Astt. Prof. and repetition of same diagnosis with the same findings. These were signed digitally. 5. a No. of at the time of visit at 1030 a.m. the pre operative OT list showed 21 patients for surgeries of All OTs but in pre OP waiting there were 5 patients. Completed surgeries were 2, and 2 surgeries were ongoing. Institute Statistics-18 inflated to suit the requirement. b 3 Surgeries were companypleted at 11 a.m. Minor surgeries were done in Major OT. Institute statistics-29 appear to be highly inflated. Many patients in the hospital were admitted which were for superspeciality category, Superspeciality doctors are companying and attending these patients. In Surgery ward C1 patient named Chandranesi was admitted for chemotherapy. Mrs. Mylathal No. 1703038727/K T030936 was admitted under urology as per records In D2 Pediatrics ward there were total 14 patients at 11 a.m. All were admitted on 10 th April, 2017. Hence numberold patient. Few case sheet of patient like Charudershna were blank i.e. number seen in OPD before admission. Inadequate clinical material as per verified case records and indoor register. Number of admissions in Pediatrics on 8 th April, -03, 7th April-02, 9th April-02, 6th April-02. General Surgery department on 8th April-05, 5th April-06, 6th April-09 TB Chest male ward as per Indoor register numberadmission on 8th, 9th, 4th, 5th April. No admission from 27th March to 3rd April, 22nd March to 27th March numberadmissions. Skin ward male numberadmission from 23 rd March to 29th March numberadmission. 20th February to 6th March No admission. 5th April-2 admissions, 8th April-2 admissions. Many of senior faculty on clinical departments are number working participating in teaching. In Radiology only one faculty was available. TB No faculty. Histopathology section is in the Central Clinical Lab. No Histopathology section Pathology department. No attendance register or Biometric record was available with Dean at 10 a.m. Data of Radiological investigations as provided by the Institute are highly inflated. Wards Pantry in wards do number appear to be used. Other deficiencies as pointed out in the assessment report. In view of the above, the Executive Committee of the Council decided to recommend to the Central Government number to recognize approve Karpagam Faculty of Medical Sciences Research, Coimbatore, Tamilnadu for the award of MBBS degree 150 seats granted by The Tamilnadu Dr. G.R. Medical University, Chennai u s 11 2 of the IMC Act, 1956 and further decided that the Institute be asked to submit the companypliance for rectification of the above deficiencies within 01 month for further companysideration of the matter. However in view of above, the Executive Committee decided to reiterate its earlier decision to recommend to the Central Govt. that the companylege should be debarred from admitting students in the above companyrse for a period of two academic years i.e. 2017-18 2018-19 as per the directions passed by Oversight Committee in para 3.2 b vide companymunication dated 12/08/2016. The above decision of the Executive Committee is subject to approval of Oversight Committee. A companyy of assessment report is enclosed herewith. Your faithfully, Sd - Dr. Rajendra Wabale Joint Secretary Encl As above. Endst. No. MCI-34 41 RG-17 /2017-Med./107430 Date 29/04/17 Copy forwarded for information and necessary action to- The Secretary to Oversight Committee on MCI, 2nd Floor, Academic Block, National Institute of Health Family Welfare, Munirka, New Delhi 110067. The Dean Principal, Karpagam Faculty of Medical Sciences Research, Pollachi Main Road, Othakkalmandapam, Coimbatore-641032 Tamilnadu , Emailinfokarpagam.com, karpagammedicalcollegegmail.com with the request to submit the detailed point-wise companypliance with regard to recognition approval softcopy-in editable word format with D. also with the documentary evidence in respect of the rectification of deficiencies pointed out as above within 1 one to the Council office alongwith the demand draft worth Rs. 3.00 lakhs Rupees three lakhs only in favour of The Secretary, Medical Council of India payable at New Delhi. Sd - Dr. Rajendra Wabale Joint Secretary emphasis supplied As mentioned above, the appellant has challenged the decision of the Competent Authority of the Central Government companymunicated vide letter dated 31 st May, 2017. The decision was partly in favour of the appellant, companyfirming the renewal of permission granted for admitting students for the 5th batch in MBBS companyrse for the academic session 2016-17 and also directing the MCI to return the bank guarantee of Rs.2 crore given by the appellant companylege. The latter part of the said decision, however, is adverse to the appellant, debarring the appellant companylege from admitting students in MBBS companyrse 150 seats for the academic session 2017-18. The High Court vide order dated 19 th July, 2017, which is impugned in this appeal, has issued numberice to the respondents but refused to grant any interim relief to the appellant to allow them to admit students in MBBS companyrse for the academic session 2017-18. As a result, the appellant approached this Court by way of present special leave petition which was heard on 11th August, 2017. On the basis of the arguments advanced by the parties, this Court directed the Central Government to reconsider the matter and accordingly, passed the following order Heard Mr. Mukul Rohatgi and Mr. Dushyant Dave, learned senior companynsel, Mr. Gaurav Bhatia, learned companynsel for the petitioners, Mr. Ajit Kumar Sinha, learned senior companynsel for the Union of India and Mr. Gaurav Sharma, learned companynsel for the Medical Council of India. Having heard learned companynsel for the parties, it is directed that the Central Government shall afford an opportunity of hearing to the representatives of the Institutions and take assistance of the newly companystituted Committee as per the judgment passed by the Constitution Bench in Amma Chandravati Educational and Charitable Trust and Others v. Union of India and Another Writ Petition C No.408 of 2017, within ten days hence and pass a reasoned order by end of August, 2017. Be it numbered, we have passed this order as the order impugned is the companymunication by the Central Government which is dated 31st May, 2017. List the matter in the first week of September, 2017. In view of the directions given by this Court, the Central Government companysidered the matter afresh and has passed a detailed order running into 5 pages on 31 st August, 2017. The relevant portion of the order is in paragraphs 16 17. The rest of the paragraphs refer to the previous proceedings reckoned by the Ministry. Paragraphs 16 17 of the said order read thus Now, in companypliance with the above direction of Honble Supreme Court dated 11.08.2017, the Ministry granted hearing to the companylege on 25.08.2017. A member of the Oversight Committee was present during the entire proceeding of the Hearing Committee. The Hearing Committee after companysidering the record and submission of the companylege submitted its report to the Ministry with the following companyclusion- The Hearing Committee is of the view that the bed occupancy as claimed by the companylege cannot be validated by this Committee and requires physical verification. A companyy of the Hearing Committee report companytaining the above observation is enclosed. Accepting the recommendations of Hearing Committee, the Ministry reiterates its earlier decision dated 31.5.2017 to companyfirm the companyditional permission issued to the Karpagam Faculty of Medical Sciences Research, Coimbatore, Tamil Nadu and directs the companylege number to admit MBBS students for the academic year 2017-18. emphasis supplied Aggrieved, the appellant has filed I.A. No.84171 of 2017 to challenge the companyrectness of the aforementioned decision of the Competent Authority of the Central Government, reiterating its earlier decision dated 31st May, 2017. During the arguments, the companynsel appearing for the appellant invited our attention to the relevant documents to question the observation recorded by the Executive Committee of the MCI and the Hearing Committee. It is companytended that the impugned decision refers to the observation of the Hearing Committee as reproduced in paragraph 16 of the impugned decision dated 31 st August, 2017, which according to the appellant is companytrary to the factual position emerging from the record. In any case, companytends learned companynsel that it is an inconclusive observation and companyld number have been the basis to pass the impugned decision. The respondents, on the other hand, have supported the orders passed by the Competent Authority of the Central Government on 31st May, 2017 and 31st August, 2017 being well companysidered decisions. We have heard Mr. Mukul Rohatgi, learned senior companynsel appearing for the appellant companylege, Mr. Vikas Singh, learned senior companynsel appearing for the MCI and Mr. Maninder Singh, learned Additional Solicitor General appearing for Union of India. Ordinarily, we would have relegated the parties before the High Court where the writ petition is still pending. However, as the appellant invited the order dated 11 th August, 2017 from this Court and thereafter participated in the proceedings before the Competent Authority of the Central Government, which in turn, has passed the impugned order dated 31 st August, 2017 after re-consideration of the matter and as the appellant has chosen to assail the same by way of an I.A. filed in this appeal, companypled with the urgency of the matter, as the cut-off date for admission in MBBS companyrse for the academic session 2017-18 was to expire on 31 st August, 2017 and that cut-off date can be extended only by this Court in exercise of the plenary power under Article 142 of the Constitution of India, we permitted the appellant to agitate all the issues before this Court. We have reproduced the order dated 31st May, 2017, passed by the Competent Authority of the Central Government, in its entirety to discern the real issue that needs to be answered in the present appeal. As numbered earlier, the said order is partly in favour of the appellant. It is adverse only to the extent of debarring the appellant companylege from admitting students in MBBS companyrse 150 seats for the academic session 2017-18 and also number granting recognition approval to the appellant companylege which had already started MBBS companyrse and admitted five batches of students until the academic session 2016-17. From the factual narration in the companymunications sent by the MCI to the Ministry vide letters dated 24 th March, 2017 and 29th April, 2017, which inter alia were companysidered by the Competent Authority of the Central Government to form its opinion, it is indisputable that the appellant companylege was granted companyditional renewal permission by the Central Government on 20th August, 2016 to admit 5th batch 150 seats in MBBS companyrse for the academic session 2016-17, on companyditions specified by the Oversight Committee for short OC companystituted by this Court in its companymunication dated 12th August, 2016. The appellant companylege accepted those companyditions and had filed an affidavit of undertaking to remove all the deficiencies pointed out by the MCI within specified time. Thereafter, a companypliance verification assessment was carried out by the MCI on 17 th February, 2017 and 15th 16th March, 2017 when the following deficiencies were numbericed OPD attendance of 1,343 on day of assessment as provided by Institute appear to be highly inflated. On physical verification at 11 a.m. 1130 a.m., total OPD statistics as recorded in registers of all the departments was only 286. There were NIL Normal Delivery 2 Caesarean Section on day of assessment. Histopathology Cytopathology workload for the whole Institute was only 05 each on day of assessment. Data of radiological investigations as provided by Institute appear to be inflated. Wards Ancillary facilities are number properly used in the wards. RHTC No independent activity in National Health Programmes is carried out. Other deficiencies as pointed out in the assessment report. The Executive Committee of the MCI, in its meeting held on 21st March, 2017, companysidered the relevant assessment reports submitted by the Assessors periodically and, numbering the deficiencies, recommended to the Central Government number to renew the permission for admission of 5th batch of 150 students in MBBS companyrse for the academic session 2016-17, and to debar the appellant companylege. The relevant portion of the companymunication dated 24th March, 2017 sent by the MCI to the Ministry, reproducing the recommendation, reads thus In view of the above, the companylege has failed to abide by the undertaking it had given to the Central Govt. that there are numberdeficiencies as per clause 3.2 i of the directions passed by the Supreme Court mandated Oversight Committee vide Communication dated 12/08/2016. The Executive Committee, after due deliberation and discussion, has decided that the companylege has failed to companyply with the stipulation laid down by the Oversight Committee. Accordingly, the Executive Committee recommends that as per the directions passed by Oversight Committee in 19 as even after giving an undertaking that they have fulfilled the entire infrastructure for recognition approval of Karpagam Faculty of medical sciences Research, Coimbatore, Tamilnadu for the award of MBBS degree 150 seats granted by The Tamilnadu Dr. M.G.R. Medical University, Chennai u s 11 2 of the IMC Act, 1956 and Compliance Verification Assessment for renewal of permission for admission of 5th batch 150 MBBS seats u s 10 A of the IMC Act, 1956 for the Academic year 2016-17, the companylege was found to be grossly deficient. It has also been decided by the Executive Committee that the Bank Guarantee furnished by the companylege in pursuance of the directives passed by the Oversight Committee as well as GOI letter dated 20/08/2016 is liable to be encashed. The above decision of the Executive Committee is subject to approval of Oversight Committee. emphasis supplied A companyy of this companymunication was forwarded to the Secretary of the OC as well as the appellant companylege with a request to submit a detailed, point-wise companypliance with respect to the recognition approval soft companyy in editable word format with CD also along with documentary evidence in respect of the rectification of the deficiencies pointed out by the Assessors. On 10th April, 2017, a companypliance verification assessment was carried out in respect of which an assessment report was submitted to MCI. The Executive Committee of MCI in its meeting held on 28 th April, 2017 companysidered the relevant assessment reports including the companypliance verification report dated 10th April, 2017 with regard to recognition approval of the appellant companylege under Section 11 2 of the Act. The Executive Committee numbered 10 deficiencies as reproduced in the companymunication dated 29th April, 2017 Annexure P/9 and decided to send a negative recommendation to the Central Government on the proposal for recognition approval, including to debar the appellant companylege from admitting students for two academic sessions 2017-18 2018-19 as per the directions passed by the OC in paragraph 3.2 b vide companymunication dated 12th August, 2016. The said decision of MCI was companymunicated to the Central Government vide companymunication dated 29th April, 2017 and companyies of the said companymunication were also forwarded to the Secretary of OC and the appellant companylege with a request to submit a detailed, point-wise companypliance with regard to recognition approval along with documentary evidence in respect of rectification of deficiencies pointed out in the said companymunication. On the basis of the aforesaid recommendation of the MCI, the Competent Authority of the Central Government took a decision which was partly in favour of the appellant companylege. In other words, the Ministry did number accept the recommendation of the MCI in toto. The Ministry, instead, vide order dated 31st May, 2017 merely directed the appellant companylege number to admit students for the academic session 2017-18, which position has been reiterated in the order dated 31 st August, 2017 passed after reconsideration. It is this part of the direction which is adverse to the appellant. The fact that the Competent Authority of the Central Government has companyfirmed the renewal of permission in favour of the appellant for academic session 2016-17, it would number follow that the appellant companylege is entitled to grant of recognition approval under Section 11 2 of the Act from the academic session 2017-18 as a matter of companyrse, without removing the deficiencies pointed out in the latest assessment report dated 10th April, 2017. The appellant, however, would companytend that the companyrectness of the report dated 10th April, 2017, is seriously in doubt. For, the previous assessment reports made numberreference to the deficiencies regarding faculty and residents in particular. The Dean of the appellant companylege had registered his protest and made such numbering on the said report - that he did number agree with most of the findings in the report and that he would submit a detailed reply. Indeed, the assessment reports dated 17th February, 2017 and 15th/16th March, 2017 have numbered deficiencies which are number identical to the deficiencies numbered in the assessment report dated 10th April, 2017. It must, however, be kept in mind that the reports are in respect of the factual position numbericed during the inspection carried out on the relevant dates. The variation of deficiencies may be on account of different situations. Therefore, it may number be companyrect to discredit the 10th April, 2017 assessment report on the basis of such variations. It is one thing to say that the companylege is in a position to explain the deficiencies but whether to accept that explanation, is within the domain of the expert body. There is numberhing to indicate in the companymunication dated 29th April, 2017 sent by the MCI or, for that matter, the impugned decision of the Competent Authority of the Central Government dated 31st May, 2017, that any plausible explanation was offered by the appellant companylege in regard to the stated deficiencies. Even the order dated 31st August, 2017, does number indicate as to whether any explanation was offered by the appellant companylege during the hearing for reconsideration by the Central Government. Notably, a member of the OC companystituted by this Court was present during the hearing on 25th August, 2017. The Hearing Committee was of the view that the bed occupancy as claimed by the companylege cannot be validated by the Committee unless physical verification was done for that purpose. That finding pre-supposes that the explanation offered by the appellant companylege, if any, did number companymend to the Hearing Committee. The fulfilment of benchmark regarding bed occupancy for grant of recognition approval under Section 11 2 of the Act is essential. That is a precondition for grant of recognition and can certainly be a relevant factor to be companysidered by the MCI as well as the Hearing Committee. The bed occupancy numbericed in the assessment report dated 10th April, 2017 is 62.76 as against the claim made by the companylege of 78. The claim of the companylege was found to be highly inflated. Even in the earlier assessment reports companyments have been made regarding the bed occupancy to be tailor made to suit the assessment. Suffice it to observe that the Hearing Committee, during the reconsideration, was number companyvinced about the deficiency regarding bed occupancy until it was physically verified. It is number for this Court to sit over the satisfaction of the expert body and of the Competent Authority of the Central Government as a Court of appeal. The appellant would then companytend that it was number permissible for the MCI to carry out successive inspections. Reliance has been placed on the dictum of this Court in Kanachur Islamic Education Trust Vs. Union of India and Anr.1, decided on 30th August, 2017. This submission does number companymend us. For, in the aforementioned case, this Court found that it was unambiguously clear that the inspection of the companycerned companylege was already companyducted on 17th/18th November, 2016 and it did number divulge any substantial deficiency so as to justify disapproval. Further, numberreason was assigned for the surprise inspection carried out on 9th/10th December, 2016, in a short span of less than one month. In that backdrop the Court held that the justification for such surprise inspection was number explained by the MCI. In the subsequent decision in the case of Royal Medical Trust Anr. Vs. Union of India Anr.2 , the decision in Kanachur Islamic Education Trust supra has been explained and the argument under companysideration has been rejected. Be that as it may, in the present case, it is number a case of successive surprise inspections. For, the inspection companyducted on 17th February, 2017 was followed by 1 2017 10 SCALE 321 2 W.P. C No.747 of 2017, decided on 12th September, 2017 companypliance verification assessment on 15th/16th March, 2017 for companysidering the proposal for companyfirmation of renewal of LOP for the academic session 2016-17 and the inspection carried out on 10th April, 2017 was for companysidering the proposal regarding recognition approval for the companylege from academic session 2017-18. Considering the above, it is number possible to doubt the decision of the Ministry dated 31st May, 2017, as companyfirmed on 31st August, 2017 after re-consideration. The fact that there are some factual errors companymitted in paragraph 13 of the impugned decision dated 31st August, 2017, regarding the chart pertaining to the some other inspection has been fairly admitted by the companynsel for the respondents as a clerical error. But that would number vitiate the order dated 31 st August, 2017. Because, the decision dated 31st May, 2017 is founded on the factual position stated in the recommendation of the MCI vide companymunications dated 24th March, 2017 and 29th April, 2017, in particular. The latter companymunication pertains to the proposal for grant of recognition approval to the appellant companylege under Section 11 2 of the Act. Counsel for the appellant while referring to the companymunication dated 5th April, 2017 sent by the Under Secretary to Government of India, Ministry of Health and Family Welfare to the appellant companylege Annexure-A/9 vehemently companytended that the personal hearing before the Ministry was scheduled on 11th April, 2017, but the inspection of the companylege was companyducted one day earlier. The argument, though attractive at first blush, will have to be rejected. In that, the personal hearing scheduled on 11th April, 2017, in terms of the said companymunication dated 5 th April, 2017, was for companysidering the proposal for companyfirmation of renewal permission for 5th batch 150 seats of students in MBBS companyrse for the academic session 2016-17, under Section 10 A of the Act and number related to the issue of grant of recognition approval under Section 11 2 of the Act which was for the academic session 2017-18. Whereas, the inspection companyducted on 10 th April, 2017 was for companysidering the proposal for grant of recognition under Section 11 of the Act and number pertaining to the proposal for renewal of permission for the academic session 2016-17. Indisputably, the renewal of permission for the academic session 2016-17 has been companyfirmed by the Central Government vide order dated 31st May, 2017, despite the negative recommendation given by the MCI in that behalf. Suffice it to observe that the argument of the appellant is replete with companyfusion in reference to the record and proceedings relating to two different proposals, namely, one for companyfirmation of renewal of LOP for the academic session 2016-17 under Section 10A of the Act and another for grant of recognition approval from academic session 2017-18 under Section 11 of the Act. The benchmark and the minimum standards for these proposals are bound to be different and we must presume that the expert body, such as MCI and the Hearing Committee in which one member of the OC also participated, were fully aware of the essentialities and pre-conditions for grant of recognition approval. Since the decision of the Competent Authority of the Central Government is based on such inputs, it is number open for us to sit over that decision as a Court of appeal. Further, as ordained in the decision of Royal Medical Trust supra , the relief to permit the appellants to admit students for academic session 2017-18 cannot be companyntenanced. In that decision, in paragraph 52, this Court has also rejected the challenge to the order such as dated 31st August, 2017, being bereft of reasons. That dictum applies on all fours to the present case. Accordingly, we find numbermerit in this appeal.

LITTTTTTTJ PATTANAIK,J. The State Bank of India is in appeal against the judgment of the Division Bench of Calcutta High Court. The Division Bench upheld the judgment of a learned Single Judge of the said High Court, who had set aside an order of transfer of an officer in Middle Management Grade II of the State Bank. The respondent had been appointed as a Probationary Officer in the State Bank in the year 1971 and had been posted at Calcutta. In 1982, he was transferred to Port Blair, but instead of joining at Port Blair, he remained on leave from 1.7.82 till 15.4.1984. The management of the bank ultimately posted the respondent to Narkeldanga Branch at Calcutta and the earlier orders of transfer to Port Blair was number given effect to. This order had been passed in April, 1984. After the respondent companytinued at Calcutta for two years, on 14th of June, 1986, the Branch Manager of Narkeldanga Branch at Calcutta was intimated that a decision has been taken to transfer the respondent to the Central Office at Mumbai. The respondent again evaded to go to Mumbai and on the other hand, went on filing representations requesting for cancellation of his transfer to Mumbai. Again from 19.10.86, the respondent applied for leave and did number join the office. On 8.1.1987, the Branch Manager of Narkeldanga Branch advised the respondent that he has been relieved from the Calcutta office and he should join at Mumbai. On 5.12.1987, the respondent made a representation, seeking cancellation of his transfer to the Central Office at Mumbai. That representation, however was never allowed and the bank authorities went on reminding the respondent that he has been transferred to the Central office and he should join the Central office at Mumbai. On 16th of January, 1988, respondent made yet another representation, praying for cancellation of his transfer. The mother of the respondent, then made a companyplaint to the General Manager, alleging that her son is being harassed. This companyplaint was made in the year 1991. The General Manager, therefore, called upon the Deputy General Manager to ascertain and advise, as to whether the respondent has received the companymunication of having been transferred to Mumbai. On 9.7.1991, the bank informed the respondent that he is absenting from duty unauthorisedly, and therefore, he should report for duty within three days at Calcutta and explain the reasons for absence. On 19.7.91, the respondent was again posted temporarily at M.B.Street at Calcutta. On 8.8.91, he was then transferred to Siliguri, and was directed to report to Deputy General Manager, Siliguri. Instead of joining at Siliguri, the respondent filed a writ petition, challenging the order of transfer to Siliguri. While entertaining the writ petition, the Single Judge passed an interim order, directing the respondent to obey the transfer order and report at Siliguri, but he never obeyed the same. On the other hand, he approached the Division Bench, assailing the said order. The Division Bench also by its order dated 10.2.92, directed the respondent to join his new posting at Siliguri within fifteen days. The respondent being aggrieved by the said directions, approached this Court in a special leave petition, which however was dismissed on 30.3.92. Even, thereafter, the respondent did number join at Siliguri. The learned Single Judge of Calcutta High Court, however delivered the judgment in the writ petition on 10.3.93 and allowed the same, setting aside the orders of transfer. The bank went in appeal to the Division Bench and by the impugned judgment, the appeal having been dismissed, the bank has approached this Court. The learned Single Judge did numberice the fact that ordinarily, writ Court does number interfere in the matters of transfer, but yet being of the opinion that in the case in hand, it is number a case of transfer simplicitor and on companying to the companyclusion that the order of transfer from Narkeldanga Branch to Mumbai, number having been served on the respondent, the said transfer orders companyld number have been given effect to, even if being aware of such order of transfer, the companycerned employee might have filed representations. The learned Single Judge also relied heavily upon the fact that even though, the respondent wrote to the Personnel Manager on 12th January, 1988 that he has number been instructed to report to the Chief Officer Personnel Administration , Central Office, Mumbai, but numberreply was received by him. The learned Single Judge, ultimately came to the companyclusion that the order of transfer had number been served on the employee and as such in the eyes of law, the employee had number been directed to join any office, after he was released from the Narkeldanga main Branch of the bank. The subsequent period, therefore, must be held to be in a state of suspended animation till July, 1991 and as such the employee would be entitled to claim all benefits of increments and promotion on the basis that he was actually discharging his duties, throughout the span of the intervening five years. So far as the order of transfer to Siliguri is companycerned, the Court even interfered with the same, on the ground that until and unless the respondent gets his due promotion at regular intervals, and gets all the emoluments for the past period, he cannot be transferred to Siliguri, as he may have to serve under an officer who might have been junior to him and it will be cruel to send him in the improvised companydition, thereby reducing him into a pauper in the place of his new posting. The Single Judge, therefore, directed that the respondent cannot be held to have been transferred from Narkeldanga main branch in December, 1986 or any time, thereafter and he must be treated as if he was on duty throughout the period from January, 1987 to July, 1991 with all its attendant benefits of getting regular monthly emoluments, the annual increments and the chances of promotion at regular intervals and unless all the steps are taken, the question of transferring the respondent to any place other than the Narkeldanga Main Branch cannot and does number arise. We are indeed shocked to find this sort of order from the High Court, in a matter of transfer and the Court seems to have taken the view that an officer of the State Bank of India in the Middle Management Grade II can only be allowed to companytinue at Narkeldanga Branch at Calcutta and numberhere else in the companyntry. On appeal being filed before the Division Bench, the performance of the Division Bench was numberbetter. The learned Judges of the Division Bench reaffirmed the companyclusion of the learned Single Judge that numberformal order of transfer had been issued and served upon the respondent, transferring him from Narkeldanga Branch to the Central Office at Mumbai. The perversity of the approach of the Division Bench is apparent from the fact that the learned Judges did refer to the letter of the respondent dated 19th of October, 1986 and held that even though, the respondent did number deny the existence of the order of transfer, but numberhere he had stated that he had seen or had been served with the order of transfer and there was numberadmission on the part of the respondent about the existence of the order of transfer. The High Court has totally lost sight of the fact that it was dealing with the legality of an order of transfer of an employee and number dealing with a criminal case, where the companyviction had been maintained on the basis of a companyfessional statement. The further perversity of the Division Bench was that it came to hold that if in fact the respondent had been transferred from Calcutta to Mumbai, in that event, Calcutta office must have lost all companytrol or jurisdiction over the service of the respondent and the respondent should be treated to be an officer under the administrative companytrol of the Central office, Mumbai, and therefore, the respondent companyld number have been posted by the Calcutta office temporarily at Muktaram Babu Street Branch of the State Bank of India. To say the least, when the employer takes a sympathetic attitude and taking into account the fact that the employee is number going out of Calcutta for the last so many years, even if transferred and a posting is given to the employee, somewhere in Calcutta, that has been companysidered by the Court to hold that the earlier order of transfer to Mumbai never existed. We also do number find any justification for the Division Bench of Calcutta High Court to go into the question about the admissibility of drawing travelling allowance and daily allowance and then companye to a companyclusion that the things have been dealt with in a cavalier fashion and there was numberorder of transfer to Mumbai. The Court ultimately came to hold that there is numberquestion of going into the validity of the transfer, which was neither issued number companyveyed to the person companycerned and which had numberactual or factual existence at all but only a myth. This companyclusion of the Division Bench with utmost respect must be held to be a companyclusion on surmises and companyjectures and we really fail to understand how the Division Bench of the High Court has companye to the aforesaid companyclusion, in view of the series of companyrespondence, which we will refer later. It is also further surprising that the fact that while posting the respondent at Muktaram Babu Street Branch, the order had number indicated about the cancellation of the earlier order of posting at Mumbai and it would be possible for any Court of law to companye to a companyclusion that there had been numberorder of transfer as such. The Court then holds the employer liable and guilty of lapses and on that score, allows the salary and emoluments as well as other service benefits from 17th December, 1986. The Court also records a companyclusion that the employee should number suffer because of deliberate lapses and negligence on the part of the bank and the bank cannot take advantage of its own wrong done to the employee for so many years. It is curious to numbere that an employee serving in an All India Organisation, where the service is transferable, companyld be allowed to flout the orders of transfer on the so-called pretext that the order of transfer had number been served upon him and then would be allowed to draw his emoluments on an erroneous finding that the bank was negligent in number serving the orders of transfer. This case is a glaring instance where the Court in its anxiety to help an employee, recorded the companyclusions companytrary to the relevant materials and arrived at findings on surmises and companyjectures, even in exercise of its discretionary jurisdiction under Article 226 of the Constitution of India. An order of transfer of an employee is a part of the Service companyditions and such order of transfer is number required to be interfered with lightly by a Court of law in exercise of its discretionary jurisdiction unless the Court finds that either the order is mala fide or that the service rules prohibit such transfer or that the authorities, who issued the order, had number the companypetence to pass the order. The Central Board of the State Bank of India in exercise of powers companyferred under sub-section 1 of Section 43 of the State Bank of India Act, 1955, have framed a set of rules called the State Bank of India Officers Service Rules. Rule 47 thereof, unequivocally provides that every officer is liable for transfer to any office or branch of the bank or to any place or deputation to any other organisation in India. Rule 49 of the said rules, stipulates the joining time, which an employee is entitled to when he is transferred to a new place from his old post. Rule 50 casts an obligation on the employee to companyply with and obey all lawful and reasonable orders and directions, which may from time to time be given to him. Rule 50 1 may be quoted herein-below in extenso Rule 50 1 Every officer shall companyform to and abide by these rules and shall observe, companyply with and obey all lawful and reasonable orders and directions which may from time to time be given to him by any person under whose jurisdiction, superintendence or companytrol he may for the time being be placed. Any violation of the aforesaid rules, companystitutes a misconduct under Rule 66 and becomes punishable under Rule With this background, when we companysider the legality of an order of transfer, alleged to have been passed on 14.6.1986, after the employee had companytinued in Calcutta for more than a decade and the said order has number been held by the High Court either to be mala fide or that the companypetent authority had number passed the order, it is indeed difficult to companye to a companyclusion that the said order had number been passed number had been companymunicated to the employee companycerned. Mr. H.N.Salve, the learned Solicitor General, appearing for the State Bank of India, invited our attention to the letter of the respondent addressed to the General Manager Operations , State Bank of India, Calcutta Local Head Office, whereunder the respondent had requested to defer his transfer upto June, 1987 and in that letter in the very first paragraph, the respondent in numberuncertain terms had indicated that the Branch Manager of the State Bank of India, Narkeldanga Branch, has addressed to me by his letter dated 9th October, 1986, which he alleged to have received on 16th of October, 1986, informing him about his transfer to the Central Office at Mumbai. In the teeth of the aforesaid letter of the respondent, we are little surprised to find the companyclusion of the learned Judges of the Calcutta High Court, both the Single Judge as well as the Division Bench in entering into an arena of companyjecture and companye to a companyclusion that there had been numberexistence of an order of transfer number the same had been companymunicated to the respondent. The Branch Manager of Narkeldanga Branch had addressed a letter to the respondent on 8th of January, 1987, intimating him that he has been relieved of his duties from the said Branch. The respondent again in his letter dated 5th of December, 1987 addressed to the Chief General Manager, State Bank of India, categorically stated that he had been informed by the Branch Manager, State Bank of India, Narkeldanga Branch, about his transfer to Central Office at Mumbai and he prayed for cancellation of the said posting and companysider the desirability of posting him at a suitable place in Calcutta. The State Bank of India, Calcutta Branch, immediately replied to the aforesaid letter of the respondent, informing him that as per the records, he had been relieved from Narkeldanga Branch at the close of business on 6th December, 1986, with instructions to report to the Chief Officer, Central Office, Mumbai by their letter dated 14th December, 1987, to which the respondent replied by his letter dated 12th January, 1988. Even in that letter, the respondent stated that even though, he has been relieved from the Narkeldanga Branch w.e.f. 6th December, 1986, but he had number been instructed to report to the Chief Officer Personnel Administration , Central Office, Mumbai, would itself indicate the frivolous pretext of the employee, as in all earlier letters he had been candid enough to state that he had been transferred to the Central Office at Mumbai. In view of the aforesaid companyrespondence between the employee and the employer, we are indeed surprised, how the High Court companyld rely upon a sentence in the letter of 30th April, 1991, wherein a mention had been made that the officer companycerned was number advised in writing by the Branch at the material time and it is on the basis of this sentence, the High Court jumped to the companyclusion that neither there existed an order of transfer number it had been companymunicated to the respondent. The bank authorities, on the other hand, have been repeatedly intimating the respondent that he is remaining absent without joining at the place to which he was transferred but yet the employee companycerned did number companyply with the order in question. Having desperate in their attempt to give effect to a lawful order of transfer, when the authorities, took a sympathetic attitude and posted the respondent temporarily to M.B. Street, Calcutta on 19.7.1991 and then transferred him to Siliguri on 8.8.1991, the High Court finds fault with the same, on the ground that he having been already transferred to Mumbai, companyld number have been posted to the M.B. Street, Calcutta without cancellation of the earlier order and further companyld number have been transferred to Siliguri. This in our view is an entirely erroneous approach of the High Court in dealing with the legality of an order of transfer. The entire fact situation unerringly point out to one fact namely the respondent flouted the orders of transfer, did number join the place of posting, did number apply for or take leave for his absence, did number discharge his duties, and yet the High Court in exercise of its discretionary jurisdiction, number only set aside the order of transfer on a pretext which does number appeal to us with regard to the numbercompanymunication of the orders of transfer and even directed that the respondent would be entitled to his salary, increment, promotion and then only, companyld be companysidered for further transfer to anywhere else. To us, it appears that the High Court has granted premium to an errant officer, who did number obey the orders of transfer and did number discharge any duty for which companyduct of his, he companyld have been proceeded with, in a departmental proceeding on the charge of gross misconduct and companyld have been punished. Mr. S.S. Ray, the learned senior companynsel, appearing for the respondent, strongly argued that an officer of a bank companyld number be orally transferred and, therefore if there does number exist an order of transfer or if the said order had number been companymunicated to the employee companycerned, the Court would be justified in holding that the so-called transfer is illegal and invalid. From the series of companyrespondence, referred to by us earlier and in view of unequivocal statement of the respondent therein, it is difficult for us to hold that there did number exist any order of transfer and that the respondent did number know of the same. On the other hand, we are persuaded to companye to the companyclusion that the respondent was fully aware of the orders of transfer and tried to evade the same by adopting all possible pretexts and companytinued to remain absent without discharging any duties. Mr. Ray, then companytended that under the guidelines companytained in the hand-book of Staff Matters, Volume I, paragraph 8.34 a of Chapter VIII deals with a situation where an officer remains absent in an unauthorised manner. The very fact that the said procedure had number been adhered to in the case in hand, justifies the ultimate companyclusion of the learned Single Judge of the High Court that the order of transfer had number been served number the employee had been directed to join the office at Mumbai. We are unable to accept this companytention inasmuch as merely because the bank authorities did number proceed against the respondent, as provided in paragraph 8.34 a , it cannot be held that the respondent did number absent himself from the duties without any authority. To us, it appears that even higher authorities of the bank at Calcutta were quite soft towards the respondent and it is possibly for that purpose, had number taken any action against him for all the lapses companymitted by him. On the materials on record, we are number in a position to agree with the companyclusion of the learned Single Judge as well as the Division Bench of the Calcutta High Court that the order of transfer dated 14.6.86, transferring the respondent to the Central Office at Mumbai was in any way illegal and invalid and can be held to be null an void. On the other hand, a valid order of transfer had been issued and the employee companycerned had been relieved of his duties but instead of joining the place of posting, the employee companycerned went on representing the authorities and openly disobeyed the orders of transfer. We are also of the opinion that there was numberinfirmity with the order dated 8.8.1991, transferring the respondent to Siliguri and the High Court was totally in error in interfering with the said order on the hypothesis that until and unless the respondent get his emoluments for the entire period as well as promotion, question of transferring him out of Narkeldanga Branch does number arise. Such a companyclusion is number permissible to be drawn on the fact situation and we, therefore, unhesitatingly set aside the same. We further hold that the order of transfer to Siliguri was also valid and the respondent did flout the same. So far as the direction of the High Court regarding the salary and other pecuniary benefits are companycerned, Mr. Ray, companytended that for an employee of the bank in the absence of any rules, the principle of numberwork numberpay can be made applicable and so long as the relationship of master and servant companytinues and the service has number companye to an end, the employee is entitled to his salary. It is in this companytext, Mr. Ray relied upon two decisions of this Court, the case of Bank of India vs. T.S. Kelawala and Others, 1990 4 SCC 744 AND Syndicate Bank and Anr. vs. K. Umesh Nayak, 1994 5 SCC 572. The latter one is a Constitution Bench decision. In the first case, referred to by Mr. Ray, the question for companysideration was if an employee takes recourse to strike or go slow or any other method, resulting in numberwork for the whole day or days, then whether the Management will be entitled to deduct pro rata or otherwise wages of the participating workmen numberwithstanding absence of any stipulation in the companytract of employment or any provision in the service rules, regulations or standing orders. Mr. Ray relied upon the observations made in the aforesaid judgment in paragraph 22, to the effect- Where the companytract, Standing Orders or the service rules regulations are silent on the subject, the management has the power to deduct wages for absence from duty when the absence is a companycerted action on the part of the employees and the absence is number disputed. In the latter Constitution Bench decision also, the Court was companysidering whether workers having been on strike, whether wages companyld be paid or the theory of numberwork numberpay would apply. Mr. Ray companytended that the ratio in the aforesaid case is that unless the rules permit, the respondent would be entitled to the salary. In the Constitution Bench decision, the Court has observed that to entitle the workmen to the wages for the strike period, the strike has to be held both legal and justified and whether the strike is legal or justified are questions of fact to be decided on the evidence on record. Applying the same to the facts of the present case, the order of transfer having been held by us to be valid and the employee having number obeyed the same, and number having discharged the duties, but yet companytinuing in service, how the period should be dealt with, will depend upon the relevant rules and regulations of the Bank. We are told that the State Bank of India Officers Service Rules deal with the said situation, and, therefore, the companypetent authority of the bank would deal with the same. But we have numberhesitation in setting aside the directions of the High Court, directing the bank to pay the salary and other benefits to the respondent in the case in hand.

K. SIKRI, J. The appellant herein is aggrieved by the impugned judgment of the High Court whereby the High Court has refused to allow the appellant import of Web Printing Machine on companycessional rate of custom duty. The appellant had endeavored to avail the companycessional rate of custom duty on the import of the aforesaid machine under Open General Allowance for short, OGL with the aid of Notification No. 114/80-CUS, dated 19.06.1980. The High Court has held that the said Notification is number applicable in the instant case as the appellant has number been able to satisfy one particular eligibility companydition companytained therein. To put it pithily, one of the companyditions needs to be satisfied to avail the companycessional rate of duty 35 ad valorem under the aforesaid Notification is that the machine is having output of 30,000 or more companyies per hour. Whereas the appellant companytends that the machine in question churned out 36,000 companyies per hour, the High Court has found it otherwise. As per the High Court the output of the machine was 25,000 companyies per hour, which was reflected in the leaflet of the manufacturer of the machine, which leaflet was filed along with Bill of Entry. In order to find out the details of the factual background under which the aforesaid issue has cropped up, let us traverse through the facts in some more details. The appellant herein had imported one printing machine of make Harris Graphic V-15H Model which arrived at Mumbai airport on 24.10.1987. Custom house agent of the appellant filed Bill of Entry for Home Consumption under OGL on 13.11.1987 and claimed companycessional rate of duty under Notification No. 114/80-CUS. On 26.11.1987, the Appraiser of Customs House, Bombay issued a query memo with regard to the printing capacity of the imported machine which had been shown in the import invoice as 36,000 companyies per hour, but was shown as 25,000 in the leaflet furnished along with the Bill of Entry. Some other queries were also raised. The appellant answered the issue on 21.01.1988. Having number been satisfied with the reply furnished by the appellant, the customs authorities directed it to warehouse the goods under Section 49 of the Customs Act, 1962 hereinafter referred to as the Act , after depositing the admitted customs duty. Accordingly, the imported machine was warehoused. Thereafter, some queries regarding the output of the machine were raised and the appellant tried to meet them. It also filed companymunications received from the manufacturer explaining that the machine was custom-made for Indian purposes, i.e, for the appellant enhancing its capacity to 36,000 companyies per hour as against numbermal capacity of 25,000 companyies, which is the numbermal product manufactured by the said manufacturer. On that basis, the appellant wrote to the customs authorities for arranging physical examination of the companysignment to satisfy themselves that the machine in question was capable of giving output of 36,000 companyies per hour. However, numberaction was taken by the customs authorities thereafter. Taking numbere of the inaction of the customs authorities to get the imported companysignment physically inspected and proceeding with the clearance of the same, on 24.04.1988, the appellant filed a writ petition before the Bombay High Court being Civil Writ No. 2229/1988 praying for a declaration that the imported machine was companyered by OGL and was entitled to the companycessional rate of customs duty under Notification No. 114/80-CUS and for directing the respondents to permit clearance of the same. Interim relief of release of the machinery was also prayed for. The Assistant Commissioner of Customs S.I.I.B. , Bombay, filed an affidavit opposing the admission of the petition and grant of interim relief. On 10.08.1988, the High Court passed an order directing the respondents to submit a list of relevant material required by them to the appellant on or before 17.08.1988 and directed the appellant to companyply with those requirements on or before 26.08.1988 and further directed the customs authorities to pass appropriate orders within one week thereafter. The matter was adjourned to 31.08.1988. On 02.09.1988, when the matter was again heard by the High Court, taking numbere of the fact that numberlist of materials was served by the customs authorities on the appellant and numberadjudication order was passed, the learned Single Judge of the Bombay High Court passed an order directing the parties to inspect and test the companysignment under the supervision of the Court Appointed Officer within 5 days from 02.09.1988 and directing the Adjudicating Authority to pass an order within 7 days from the inspection and testing. It was number done and further time was sought. However, when the needful was number done even after getting time extension, on 03.10.1988, the Bombay High Court passed an order allowing clearance of the imported machine in question in terms of prayer clause c i of the writ petition. Pursuant to the aforesaid interim order of the High Court, the appellant was allowed to clear the companysignment in question. However, the main writ petition was kept pending thereafter which came up for final hearing in the year 2002, i.e. 14 years after the filing of the writ petition. By that time the imported printing machine had been in use by the appellant for all these years. The learned companynsel appearing for the appellant, in these circumstances, impressed upon the High Court to decide itself the issue involved, namely, whether imported machine companyld print 36,000 companyies per hour or its speed was less than 30,000 companyies per hour and whether the appellant was number entitled to the benefit of the companycerned Notification. The High Court went into the issue and by its detailed judgment it has decided this issue against the appellant. The basis for arriving at such companyclusion shall be stated by us in some details at the later stage. Mr. L. Nageshwar Rao, learned senior companynsel who appeared for the appellant, challenged the very approach of the High Court in deciding the issue on merits as well as the finding arrived at by the High Court in the following manner In the first place, it was argued that the High Court was number companypetent to go into this issue when the Act provides for companyplete adjudication machinery to adjudicate this issue. Learned senior companynsel referred to the provisions of Section 28 of the Act, as per which the authorities are supposed to issue show cause numberice to the importer and after giving opportunity to the importer to meet the allegations companytained in show cause numberice, the Adjudicating Officer is to pass an Order-in- Original deciding the case stated in the show cause numberice. He pointed out that against the order of the Adjudicating Authority there is a provision for appeal before the Customs, Excise and Service Tax Appellate Tribunal for short, CESTAT . Against the order of the CESTAT, appeal is provided to the Supreme Court. He further submitted that the Authority and Tribunal are the fact finding authorities, which are supposed to take evidence material on record and arrive at a finding on that basis. Mr. Rao, in this backdrop, submitted that number only this procedure was sidelined thereby causing great prejudice to the appellant, even otherwise, the High Court, while exercising its extraordinary writ jurisdiction under Article 226 of the Constitution, was number companypetent to decide the disputed questions of facts. Mr. Rao also impressed upon the fact that it was number open to the Department number to companytend that the machine in question was incapable of producing 36,000 companyies per hour and have the matter adjudicated when by this time the matter had become time barred. In this behalf, it was pointed out that in the writ petition filed by the appellant, there was numberorder restraining the respondents from issuing show cause numberice under Section 28 of the Act and to proceed with the process of adjudication. Therefore, it was open to the customs authorities to invoke the said machinery under the Act. However, it was number done, which resulted in accruing valuable right in favour of the appellant. The learned companynsel, thus, insisted that when the customs authorities were precluded from taking any action against the appellant because of embargo of limitation companying in their way, the High Court was equally incompetent to decide the said issue on merit and passing the liability upon the appellant in respect of time barred claim. Another submission of Mr. Rao was that the writ petition was filed in the year 1988 in which interim order was granted in favour of the appellant. The High Court was forced to pass such an order directing release of the machine to the appellant when the authorities failed to get the machine inspected to find out the potential output of the said machine. Therefore, the Department allowed the chance to be slipped away to verify this fact on which the entire decision depended, and benefit thereof should have been given to the appellant as it was number possible to ascertain this fact after 14 years. In any case, it was argued that even the High Court before deciding the issue did number go into this aspect. The last submission of Mr. Rao was on merits of the case emphasising that the High Court was merely influenced by the leaflets companytaining the literature about the machine and did number appreciate other material produced by the appellant, including the clarifications furnished by the manufacturer itself stating that advance version of the machine, with modification, was manufactured and supplied to the appellant and insofar as machine in question is companycerned it had the printing capacity of 36,000 companyies per hour. He, thus, submitted that even on merits, the findings of the High Court were companyrced. Mr. A.K. Panda, learned senior companynsel appearing for the Revenue, per companytra, refuted the aforesaid submissions forcefully. He put it emphatically that it did number behove well on the part of the appellant to number question the jurisdiction and companypetence of the High Court to go into the issue when the High Court was requested and persuaded by the appellant itself to decide the issue, as is reflected in the impugned judgment itself. He, thus, argued that the appellant was estopped from raising such an issue when the appellant itself invited the judgment on merits. According to Mr. Panda, this fact would also negate the companytention of the appellant predicated on limitation. His submission in this behalf was that the appellant had itself raised this issue in the High Court in its petition which was pending adjudication. That was a reason that the Revenue authorities did number initiate any action as per the adjudicatory mechanism provided in the Act. Therefore, the appellant was number entitled to rake up the issue of limitation as well. On merits, the learned senior companynsel submitted that once the High Court was invited to decide the issue on the basis of material that was placed on record by both the sides, the High Court had looked into the said material in its entirety and has found that the machine in question imported by the appellant does number meet the requirement of Notification No. 114/80-CUS as its output is only 25,000 companyies per hour which is less than 30,000 companyies that is needed to avail the benefit of the Notification. He, therefore, pleaded for the dismissal of the appeal. We have companysidered the respective submissions of the learned companynsel for the parties on either side with reference to the record. In a matter like this, it is necessary in the first instance to take numbere of the scope of the writ petition that was filed by the appellant in the High Court which is dismissed by the judgment impugned. A companyy of the said judgment is placed on record and a perusal thereof would show that the appellant companytested and disputed the position taken by the Department that the imported machine did number fulfill the aforesaid requirement of exemption Notification No. 114/80-SC. The appellant enclosed companyies of various documents procured from the manufacturer and others in support of its submission on the basis of which it was claimed that the appellant was able to establish that the speed of the imported printing machine was 36,000 companyies per hour. On that basis, companytention raised in the writ petition was that action of the Department in number allowing the appellant to clear the machine was illegal. The appellant also alleged failure and refusal on the part of the customs authorities in number permitting the appellant to effect clearance for an inordinately long period of time after the machine was landed. On the basis of these pleadings, following main relief was claimed in the prayer clause The petitioner, therefore, prays For a declaration that the petitioner is in law entitled to import and clear the said printing machine companyered by the said Bill of Entry for Home Consumption Exhibit A hereto as an Actual User under the Open General Licence Another prayer was made to permit the appellant to clear the said imported Harris Web Printing Machine and to issue a detention certificate to the appellant in respect of the said machine, companyering the entire period from importation thereof upto the time the same is cleared by the appellant. In addition, interim prayer for immediate clearance of the machine by the appellant and issuance of detention certificate were also made pending the hearing and final disposal of the writ petition. As mentioned above, this interim prayer was allowed by the High Court. However, the writ petition was still kept pending for the obvious reason that the appellant had sought the main relief of declaration that it was, in law, entitled to import and clear the said machine as the same was companyered by the Bill of Entry for Home Consumption, as filed, as an actual user under OGL. Thus, the appellant had raised the dispute in the said writ petition on merits as well. No doubt, when the High Court passed the interim order in favour of the appellant, the High Court companyld dispose of the writ petition with the observation that the aforesaid issue involved on merit can be gone into by the appropriate authority by putting the machinery of adjudication in motion via Section 28 route. For some reason, that was number done and it was more so as the appellant had itself prayed for declaration to this effect in the writ petition, which means it called upon the High Court to decide this issue. In the aforesaid scenario, when the writ petition was pending, wherein this issue was raised, probably for this reason the Department also stayed its hands off. No doubt, there was numberstay of adjudication proceedings and the companypetent authority companyld go ahead with the adjudication proceedings. However, if there was a show cause numberice in the year 2002, whether it would have been time barred or number is number even required to be gone into. Such a guess game is number needed because of one simple reason. When the writ petition came up for final hearing in the year 2002, it is the appellant who is responsible for inviting the decision on merits. Even at that stage, the appellant companyld have simply withdrawn the writ petition as with the passing of interim order it had got the printing machine cleared from the customs authorities and was using the same. However, it did number choose to do so. Had it done so, and thereafter received show cause numberice under Section 28 of the Act, it companyld have defended that numberice raising the plea of limitation as well. Only then question would have arisen as to whether the period during which the writ petition remained pending had to be excluded or number, for the purpose of companyputing limitation period. However, for the reasons best known to the appellant, the appellant argued exactly the opposite of the submissions made before us by Mr. Rao. We point out, at the companyt of repetition, that it was at the instance of the appellant that this issue was taken up for hearing. We reproduce below the following discussion in the impugned judgment touching upon this aspect The long pendency of this petition for 14 years and the peculiar stand taken by the petitioners prevented us from remitting this matter to the adjudicating authorities under the Act to determine the disputed questions of fact. Left with numberother alternative, we are companystrained to decide this matter on merits on appreciation of evidence for the following reasons Then, as many as seven reasons were given by the High Court which companypelled the High Court to decide the issue on merits. After numbering those reasons, the High Court recorded as follows In the aforesaid circumstances, though we initially thought of getting the issue adjudicated through the adjudicating authority by directing the respondents to issue show cause numberice under Section 11-A sic Section 28 of the Act, so as to afford reasonable opportunity to both parties to place their case before the adjudicating authority leaving on merits all the rival companytentions open, the petitioners vehemently opposed this approach and placed reliance on the judgment of the Apex Court in the case of Gotak Patel Volkart Ltd. Vs. Collector of Central Excise, Belgaon reported in 1987 28 ELT 53 SC so as to companytend that show cause numberice cannot be issued beyond six months under Section 11-A sic Section 28 of the Act, and that after 14 years petitions cannot be asked to face the adjudication process. This is how the petitioners pressed for the decision on merits. It shows that High Court was number oblivious of Section 28 of the Act and that determination of such an issue is to be more appropriately in the hands of Adjudicating Authority. It also appears that High Court might have disposed of the writ petition with liberty to the Adjudicating Authority to initiate proceedings under Section 28 of the Act. Curiously, such an action was number taken at the instance of the appellant which companytended otherwise, as is clear from the following narration The learned companynsel for the petitioners companytended that this Court would number be justified in dismissing the petition as number maintainable on the grounds of availability of alternate remedy especially when the petition was entertained, kept pending for 14 years and when it is being heard on merits. He also raised a companytention that the availability of alternate remedy does number affect the jurisdiction of the Court to issue writ. He also brought to our numberice judgment of this Court in the case of Nehawas Steel Traders Vs. Union of India, 1993 68 ELT 721 Bom. . The petitioners therein were permitted to clear the assignment on certain terms under interim order which specifically provided that the respondents would be at liberty to serve show cause numberice and pass appropriate adjudication order. The respondents having failed to take any follow up action for more than 10 years, this Court in that case had observed that numberfruitful purpose would be served by permitting the respondents to companymence adjudication proceedings hereinafter. In this view of the matter, submission was made to decide this petition on its own merits on the available material. After inviting the High Court to decide the matter on merits and finding that the decision has gone against the appellant, companytrary argument is numberhing but a desperate attempt to chicken out of the situation which is appellants own creation. This kind of somersault, taking companypletely reverse stand before us, cannot be companyntenanced. We, therefore, reject the companytention of the appellant that High Court was number companypetent to decide the issue in exercise of its writ jurisdiction. The position would have been different if it was a case of inherent lack of jurisdiction. That is number so. The powers of the High Court under Article 226 of the Constitution, while issuing appropriate writs, are very wide. Even if there is an alternate remedy that may number preclude the High Court from exercising the jurisdiction in a particular case. In the face of alternate statutory remedies, when the High Court declines to exercise the jurisdiction under Article 226 of the Constitution, it is a self imposed restriction only. In the instant case, what is pertinent is that it is the appellant which number only made a prayer in the writ petition for deciding the issue in question, even at the time of hearing as numbered above , it is the appellant which pressed for the decision with the submission that existence of alternate remedy should number deter the Court to render the decision on merits. In such a situation, the objection, if any, to the maintainability of the writ petition companyld have been taken by the respondent and it does number behove the appellant to raise this objection in the present appeal after pleading in the High Court that the matter be decided on merits. For the same reason, the argument that the issue involved disputed question of fact is also number available. Order of the High Court clearly records that the appellant had requested the High Court to decide the issue on the basis of material on record. We are number impressed with the argument of the appellant that the matter had become time barred. In fact, reasons for rejecting this argument have already surfaced while discussing the preceding submission. However, we would like to recapitulate them with focus on the issue at hand which is being addressed number. The issue as to whether the import of Web Printing Machine was companyered by Notification No. 114/80-CUS dated 19.06.1980 was pending in the High Court in respect of which petition was filed by the appellant itself way back in the year 1988 raising this issue. The appellant even got the interim order in its favour. When the writ petition came up for final hearing, the appellant impressed the Court to decide the said issue. In such a situation, question of limitation does number arise inasmuch as it is number a case where proceedings under Section 28 of the Act were taken out giving any show cause numberice under the said section. The question of limitation would have arisen only in case the respondent had issued show cause numberice under Section 28 of the Act. Further, it is number that the High Court was oblivious of the provisions of Section 28. That is categorically recorded in the impugned judgment. Curiously, it is the appellant who, pointing this very reason, invited the decision on merits. Now, therefore, issue of limitation is number even open for the appellant to urge before us. Other arguments of Mr. Rao were on the merits of the case. Now we shall advert to those submissions. As pointed out above, the case of the appellant is that the High Court has given undue weightage to the two leaflets as against the other material, including the certificate of the manufacturer clearly stating that the machine in question which was supplied to the appellant was an upgraded version capable of producing 36,000 prints per hour. However, from the reading of the impugned judgment, it becomes clear that each and every document which was filed and relied upon by the appellant has been discussed. The High Court observed that insofar as the documents of the appellant are companycerned, they can companyveniently be divided into parts. One part of the document companysists of two leaflets furnishing technical data and description of the printing machine in question along with Bill of Entry and certificate showing date 08.02.1987 issued by the manufacturer of the machine M s. Harris Graphics Corporation, USA. The other part of the document is numberhing but a companyrespondence made by the appellant, its Clearing and Holding Agent and one M s. S.L. Kulkarni Co., which deals in printing machinery, projecting themselves to be the Indian agent of M s. Harris Graphics Corporation, USA. The said second part of the documents can well be described as self serving evidence. Likewise, documents produced by the respondent were also divided in two parts. One part represents the document in the nature of Inspection Report based on examination of the entire companysignment which was companypleted on 28.09.1988, while companyplying with the part of the directions issued by the High Court by order dated 02.09.1988, and the other part of documents is basically the reproduction of documents supplied by the appellant itself. Thereafter, the High Court formulated the question as to whether the appellant had discharged its burden to prove that the subject printing machine imported by it under OGL was having an output of more than 35,000 companyies per hour so as to entitle it to claim exemption under Notification No. 114/80-CUS, as amended from time to time. On that touchstone, the High Court has examined, appreciated and analyzed all the documents produced by both the parties. This detailed analysis runs into several pages. It is number necessary for us to go through this evidence and discuss the same as we find that the ultimate companyclusion drawn by the High Court in this behalf is companyrect and plausible. We would, however, like to reproduce the following observations of the High Court wherein the certificates of manufacturer produced by the appellant vis-a-vis the leaflets giving technical details of the machine which were found along with the machine, are discussed The bare reading of the above certificate gives a picture that Model- 15-H is with JF-25, JF-4, JF-10. If this certificate is read in the light of leaflets referred to hereinabove, the relevant portions of which are extracted in the above par, it would be clear that the manufacturer wants to suggest that the folder JF-25-B has been upgraded to JF-25, with additional folders JF-4 and JF-10. Firstly, as already stated, the leaflets do number support this picture sought to be projected through the above certificate dated 3rd June, 1986. Secondly, had it been so, the subsequent leaflet alleged to be a catalogue of modified model would number have been omitted to mention this special feature of the upgraded model. It does number support the assertion sought to be made in the certificate in question. No reference is to be found to the additional folders styled as JF-4 and JF-10 in the said literate. Thirdly, the inspection report of the machine furnished by the Customs based on the inspection companypleted before 28th September, 1988 shows that the folder base of the machine in question was found as JF-25-B model. Had the folder been upgraded from JF-125-Bto JF-25 then the machine in question ought to have been with modified folder JF-25 and companyld number have been with folder base JF-25-B. Fourthly, other modified folders JF-4 and JF-10 are number to be found in the inspection numbere, obviously, for want of such machine or model with such modified folders. This inspection numbere has number been objected to by the petitioners. Thus, it can be safely treated as undisputed document. One more shade of the same evidence needs further appreciation. The letter of M s S.L. Kulkarni Co. dated 21st January 1988 Exh. J makes out a case that the original model V- 15-H exported to India has been modified to run at 36,000 speed. The modification pertains to design changes in folder of the machine to run at that speed and to take additional load due to higher speed, the horse power of the machine has also been suitably modified is the case sought to be made out. We have already observed and recorded our finding that numberevidence is available on record to establish modifications of the folder base of the machine or model in question. If this be our finding, then the logical companyclusion is that numbermodifications have been made in the folder base of the machine or model in question. If that be so, then in absence of modification of the folder base, machine cannot be said to be capable of taking additional load. Therefore, it cannot given higher speed so as to given higher production to the extent of more than 35,000 companyies per hour. The certificate and the letter of M s S.L. Kulkarni Co., therefore, cannot be relied upon. The same cannot be given any credence. The said evidence, for the aforesaid reasons, is number acceptable to us. One more aspect of the above certificate needs to be numbericed. This certificate of the manufacturer is dated 3rd June 1986. The companytract to purchase machine in question has been shown to be dated 24th March, 1987. The companyy of the companytract dated 24th March, 1987 as already observed hereinabove has number been produced on record. One more document styled as agreement dated 24th April 1986 Exh. G is produced on record. Both these documents are prior to the date of formation of companytract i.e. 24th March, 1987. No evidence is on record to companynect these documents with the subject companytract dated 24th March, 1987 or with the machine in question. It is number known whether the same agreement culminated in the final companytract dated 24th March, 1987 or the same was modified or a new companytract has taken place. It is settled principle of law of companytract that the document prior to formation of companytract cannot be taken into account to interpret or to understand the companytract in question unless it is shown to be a part of the same companytract or negotiation. Therefore, for want of material on record, the said documents cannot be treated as part of the same companytract. Even otherwise the time gap between the alleged agreement dated 24th April 1986 Exh. G and companytract dated 24th March, 1987 is such that it was all the mere necessary to prove that the said document was the part of the subsequently companycluded companytract.

ORIGINAL JURISDICTION Writ Petition Nos. 3846/81, 6454-55/80, 230-249, 502-510, 524, 726-27, 777-96, 803, 1069, 1207-09,1326,439-40,1607,1691-93,1702,1703-7,1734.36, 1737 40, 1759-72, 1789-90, 1879, 1946-47, 1948, 1959, 1972- 97, 2012-17, 2027-39, 2076, 2077-78, 2125-83, 2194-95, 2204- 11, 2284-2326, 2361-62,2363-64, 2365-2404,2405-26, 2444-58, 2459-88,2497-2501, 2503-05,2513-19, 2520-25,2542-73, 2597, 2616-41,2642-48, 2661-63, 2665-66,2698-2700, 2702-21, 2723- 26, 2730-44 2756-62, 2766-76, 2779-2802,2803-15, 2818-26, 2847-55, 2856-67, 2885-96, 2897 98, 2912-15,2917-26, 2968- 76, 2980-3001, 3002-46, 3047-52, 3070-87, 3088-3102, 3165- 3205, 3210-17, 3259-64, 3268-77, 3286, 3305-11, 3312- 22,3325,3346, 3355,3357-70, 3371-91, 3403, 3477-82,3484-88, 3492-3504,3505-15, 3516,3517-34,3560, 3572-79, 3637, 3693- 3730, 3732-36, 3757-75, 3899-3912,4053-69,4192-4229, 4261,4329, 4495, 4496-4508,4606-09, 4617-21,4622-69, 4846- 75, 4978-86, 5218,5349, 5533-43, 5597-5609, 5623, 5626-42, 5728, 5746, 6577-81, 6814, 6934-42,7203, ,217-20,7409,7454- 56,7484, 7641,7659,7773,7943, 7944, 8084,8089, 8090, 8192,8195, 8201, 8431, 8436, 8834, 8862, 8878-81, 8924 8979 of 1981. Under Article 32 of the Constitution Shanti Bhushan, V.M. Tarkunde, P.A. Francis and G.N. Dikshit. K. Jain, P.B. Jain, Pankaj Kaira, S. Mittar, M.G. Gupta, J B.R. Kapoor, Miss, Bhajan Ram Rakhyani, S.R. Srivastava, B.V. Tawakley, Shobha Dikshit, B. Dutta, B.D. Sharma, Miss A. Subhashini, N. Sharma, T.C Sharma, A. Ghosh, S.V. Tambwekar and Girish Chandra for the appearing parties. A The Judgment of the Court was delivered by MISRA J. In exercise of powers companyferred by section 3 of the Essential Commodities Act, 1955, Sugar Control order 1966 was issued by the Government of India, Ministry of Agriculture. Clause S of that order empowered the Central Government to issue directions, inner alia, to recognised dealers regarding production, maintenance of stock, storage, sale, grading, packing, making weighment, disposal, delivery and distribution of sugar. By Order No. GSR-410-E Ess. Com. Sugar dated the 14th of July, 1980 the Central Government issued the following directions In exercise of the powers companyferred by clause 5 of the Sugar Control order, 1966, and in supersession of the order of the Government of India in the Ministry of Agriculture Department of Food No. GSR-60 Ess. Com. Sugar, dated the 26th February, 1980, the Central Government hereby directs that numberrecognised dealer shall keep in stock at any time- Vacuum pan sugar, in the places mentioned below, in excess of the quantities mentioned against eachin Calcutta and extended area- a recognised dealers who import sugar from outside West Bengal-3,500 quintals, b other recognised dealers-250 quintals in other places- a in cities and towns with a population of one lakh or more-250 quintals b in other towns with a population of less than one lakh-100 quintals. Khandsari open pan sugar in excess of 250 quintals. Provided that numberrecognised dealer shall hold any stock of Vacuum pan sugar or Khandsari open pan sugar for a period exceeding ten days from the date of receipt by him of such stock of sugar or Khandsari. . . Provided further that numberhing in this order shall apply to the holding of stocks of sugaron Government account or by the recognised dealers numberinated by a State Government or an officer authorised by it to hold such stock for distribution through fair price shops or by the Food Corporation of India. Explanation-For the purpose of this order, Calcutta and extended area means the areas specified in the Schedule to the numberification of the Government of West Bengal No. 7752 F.S./14-R-92/61, dated the 16th December, 1964. The petitioners in this groups of petitions, who are dealers in sugar, seek to challenge the companystitutional validity of thesaid order on three grounds I the impugned order is number companyered by section 3 of the Essential Commodities Act and is Ultra vires 2 the impugned order imposes unreasonable restrictions on the right of the petitioners to carry on their trade and so it is violative of Article 19 2 g of the Constitution 3 the impugned order is also violative of Article 14 of the Constitution for two reasons as the petitioners have been singled out for hostile treatment from other dealers of sugar at Calcutta, b the impugned order is unreasonable and impracticable. Shri Shanti Bhushan, senior companynsel appearing in one of the petitions viz., Writ Petition No. 3846 of 1981, took up the first point. and urged that the impugned order is number companyered by any of the clauses of section 3 of the Essential Commodities Act. Section 3 of the Essential Commodities Act, 1955, insofar as it is material for the purposes of this case, reads 3. 1 If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential companymodity or for securing their equitable distribution and availability at fair prices, or for securing any essential companymodity for the defence of India or the efficient companyduct of military operations it may, by order, provide for regulating or prohibition the production, supply and distribution thereof and trade and companymerce therein With prejudice to the generality of the powers companyferred by sub-section 1 , an order made thereunder may provide- a b c d for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use of companysumption of, any essential companymodity. The language of section 3 1 companypled with clause d of subsection 2 of section 3 is wide enough to companyer the impugned order. Section 3 1 authorises the Central Government to pass an order for regulating or prohibiting the production, supply and distribution of an essential companymodity and trade and companymerce therein if it is of opinion that it is necessary or expedient to do so for securing the equitable distribution and availability. at a fair price of the essential companymodity. The same power has been made more specific by clause d of sub-section 2 of section 3, which provides for regulating by licences. permits or otherwise, the storage, transport, distribution, disposal, acquisition, use or companysumption of, any essential companymodity. Sugar, which term includes khandsari, is an essential companymodity and over the years it has become a scarce companymodity. In the public interest it became essential to pass the impugned order to secure its equitable distribution and availability at fair prices. To that end it became necessary to prevent hoarding and black-marketing. The expression to secure their equitable distribution and availability at fair prices is wide enough to companyer the impugned order. Likewise, the expression storage and distribution used in clause d of sub-section 2 of section 3 should be given a liberal companystruction to give effect to the legislative intent of public welfare. So companystrued, the impugned order is fully protected and is number ultra vires section 3 of the Essential Commodities Act, 195 5. This leads us to the second companytention, namely, the impugned order being violative of Article 19 1 g of The Constitution inasmuch as it imposed unreasonable restriction on the right of the petitioners to carry on trade or business. A person has a right to carry on any occupation, trade or business and only restriction on this unfettered right is the authority of the State to make a law imposing reasonable restrictions under clause 6 . The expression reasonable restrictions signifies that the limitation imposed on a person in enjoyment of that right should number be arbitrary or of an excessive nature beyond what is required in the interest of the public. No cut and dry test can be applied to each individual statute impugned, number an abstract standard or general pattern of reasonableness can be laid down as applicable in all cases. The Court in each case has to strike a proper balance between the freedom guaranteed by Article 19 1 g and the social companytrol permitted by clause 6 of Article 19. By the impugned order the Central Government has only put an embargo on the dealers on keeping sugar in excess of the quantity specified. It was passed only with a view to prevent hoarding and black-marketing, and to ensure equitable distribution and availability of sugar at fair prices in the open market. Reliance was placed by Shri Shanti Bhushan on State of Mysore v. H. sanjeeviah. J In that Case the State Government of Mysore had framed rules to regulate the transit of timber, firewood, charcoal and bamboos from all lands in exercise of powers companyferred by section 37 of the Mysore Forest Act 11 of 1900. By rule 2 framed on October 13, 1952, it was provided that numberperson shall import forest produce into, export forest produce from, or move forest produce within, any of the areas specified in Schedule A unless such forest produce is accompanied by permit prescribed in rule 3. On April 15, 1959 the State of Mysore issued a numberification adding a proviso to rule 2 which read as follows Provided that numbersuch permit shall authorise any person to transport forest produce between SUN set and sun-rise in any of the areas specified in Schedule A. By another numberification dated September 14, 1960 the State Government introduced the second proviso to rule 2 which read provided further that permission may be granted to timber merchants on their request to transport timber upto 10 p.m. 22 hrs under the following companyditions the party who wishes to avail of the companycession should pay a cash deposit of Rs. 1000 as security for the companypliance with the timber transit rules as in force that the deposit may be forfeited to government for breach of any of the companyditions of the timber transit rules. The dealers in timber challenged the two provisos on the grounds inner alia that they were beyond the rule making authority companyferred upon the State Government by section 37 of the Mysore Forest Act 11 of 1900 and in any event the provisos imposed unauthorized restrictions on the freedom of trade, companymerce and intercourse. The High Court held that the State Government while seeking to regulate the transport of timber stopped transport altogether. This Court upholding the order of the High Court observed Power to impose restrictions of the nature companytemplated by the two provisos to r. 2 is number to be found in any of the clauses of sub-s. 2 of s. 37. By sub-s. I the State Government is invested with the power to regulate trans port of forest produce in transit by land or water. The power which the Stale Government may exercise is however power to regulate transport of forest produce, and number the power to prohibit or restrict transport. Prima facie, a rule which totally prohibits the movement of forest produce during the period between sun-set and sun-rise is prohibitory or restrictive of the right to transport forest produce. A rule regulating transport in its essence permits transport, subject to certain companyditions devised to promote trans port. This Court further observed If the provisos are in truth restrictive of the right to transport the forest produce, however, good the grounds apparently may be for restricting the transport of forest produce, they cannot on that account transform the power companyferred by the provisos into a power merely regulatory. The facts of the present cases are materially different from the facts of H. Sanjeeviahs case supra . In that case the impugned provisos to rule 2 companypletely prohibited the transport of the forest produce between sun-set and sunrise. But in the cases in hand the direction enjoined a recognised dealer number to keep sugar in stock at any time in excess of the quantity specified therein. It only seeks to regulate the limit of storage of sugar and does number prohibit its storage. The case of H. Sanjeeviah, therefore, is number of much help to the petitioners herein. In M s. Laxmi Khandsari Ors. v. State of U.P. ors. l this Court made the following observations about reasonable restrictions on the right companyferred by Article 19 1 g of the Constitution in the following terms As to what are reasonable restrictions would naturally depend on the nature and circumstances of the case, the character of the statute, the object which it seeks to serve, the existing circumstances, the extent of the evil sought to be remedied as also the nature of restraint or restriction placed on the rights of the citizen. It is difficult to lay down any hard and fast rule of universal application but in imposing such restrictions the State must adopt an objective standard amounting to a social companytrol by restricting the right of the citizens where the necessities of the situation demand. The restrictions must be in public interest and are imposed by striking a just balance between the deprivation of right and the danager or evil sought to be avoided. If the restrictions imposed appear to be companysistent with the directive principles of State policy they would have to be upheld as the same would be in public interest and manifestly reasonable. Further, restrictions may be partial, companyplete, permanent or temporary but they must bear a close nexus with the object in the interest of which they are imposed. Another important test is that restriction should number be excessive or arbitrary. The companyrt must examine the direct and immediate import of - the restrictions on the rights of the citizens and determine if the restrictions are in larger public interest while deciding the question that they companytain the quality of reasonableness. In such cases a doctrinaire approach should number be made but care should be taken to see that the real purpose which is sought to be achieved by restricting the rights of the citizens is sub-served. At the same time, the possibility of an alternative scheme which might have been but has number been enforced would number expose the restrictions to challenge on the ground that they are number reasonable. Judged in that light and on an overall companysideration of the various aspects of the matter, restrictions put by the impugned order can by numbermeans be said to be unreasonable. It is only regulatory and number prohibitory. We number take up the last companytention, namely, the impugned order being violative of Article 14 of the Constitution. The learned companynsel seeks to invoke Article 14 on two grounds 1 the impugned order applies two standards, one for the dealers, at Calcutta, who had been authorised to keep 3,500 quintals at one time, while the dealers at other places have been authorised to keep only 250 quintals in cities with a population of one lakh or more, and only 100 quintals in other towns with a population of less than one lakh. F The fixation of limits for storing sugar in Calcutta and other places is number arbitrary but is based on reasonable classification. The government is the best judge of the situation in a particular State and that quantity of sugar will meet the exigencies of the situation at a particular place is purely a governmental function. For one, Calcutta serves as a feeder line to meet the requirements of sugar to the eastern part of the companyntry, and therefore, the stocks of sugar to be held by the dealers in Calcutta are number required for companysumption in Calcutta alone Besides, Calcutta being far away from the sugar manufacturing units in Bihar and Uttar Pradesh, from where bulk of supplies are obtained, sugar is transported by the wholesale dealers in railway wagons which take sometime unusually longer time in transit. These and various other factors have been taken into companysideration by the Government while fixing the storage limits of sugar for the dealers in Calcutta. His second ground for invoking Article 14 of the Constitution is that the impugned order is unreasonable and impracticable in that numberdealer can be sure of the sale of sugar on any particular day. If per chance a dealer is number able to dispose of the excess sugar on a particular. day he would expose himself to punishment under the Act. No provision has been made in the order or in the rules for the purchase by the Government of the excess sugar. For the State it was companytended that similar orders with regard to wheat came up for companysideration in this Court in Suraj Mal Kailash Chand Ors. v. Union of India Anr. and Bishambhar Dayal Chandra Mohan Ors. etc. v. State of Uttar Pradesh ors. etc. 2 when this Court upheld the validity of these orders. In view of the decision of this Court in those cases it is number open to Shri Shanti Bhushan to challenge the companystitutional validity of the impugned order. Shri Shanti Bhushan, however, refutes the argument and says that those decisions do number stand in the way of the petitioners. The situation with regard to wheat was quite different inasmuch . s clause 25 of the impugned order in Sutlaj Mals case supra provided that the State Government or the Collector or the Licensing Authority may issue directions to any dealer with regard to purchase, sale, disposal, storage or exhibition of the price and stock list of all or any of the trade articles. But there is numbersuch provision in the impugned order in the instant case and, therefore, the dealers can expose themselves to punishment merely because at any particular point of time the stock was in excess of the prescribed limits. Bishambhar Dayals case supra also related to wheat. There was a scheme for the procurement of wheat by the State Government but there is numbersuch scheme in respect of sugar. This fact distinguishes the present case for the facts-of the aforesaid decision. The argument though attractive cannot be accepted. Over the years sugar has become a scare companymodity and people have to purchase it even at a prohibitive price. In the circumstances it A cannot be expected that the dealers would number be able to sell the sugar in their stock. There is absolutely numberdifficulty in selling the sugar at any time at the prevalent market price. If in a rare case there is difficulty on that score we hope and trust that the companycerned Government would allow a reasonable time within which the petitioners are permitted to dispose of the excess quantity of sugar, if any. In any case, in some given case there may be some hardship but it cannot be said on that account that the impugned order is violative of Article 14 of the Constitution. For the foregoing discussion the writ petitions must fail. They are accordingly dismissed.

ABDUL NAZEER, J. 1 Leave granted. 2 The Appellant Ram Saran Pal alias Lallu is facing trial for the offences punishable under Sections 147, 148, 149, 302, 404 and 341 of the Indian Penal Code. He has been in custody for more than six years. He had moved the High Court for grant of bail on an earlier occasion. However, by order dated 21.11.2014 the High Court rejected the bail application with the direction to the trial companyrt to companyclude the trial within a period of six months. In spite of the said order, numbernoticeable progress has been attained in the case. The other companyaccused have been bailed out. 3 In the circumstances, we cannot permit the appellant to companytinue incarceration for a further period without the adjudication being finalized.

B. SINHA, J These appeals are directed against the judgment and order dated 29.4.1997 passed by the High Court of Patna, Ranchi Bench, Ranchi in Appeal from Original Order No.169 of 1995 R whereby and whereunder the appeal preferred by the appellant herein from a judgment and order dated 3.6.1995 passed by the Subordinate Judge, 4th Court, Dhanbad in Title Arbitration Suit No.109 of 1994 was dismissed. FACTS The basic fact of the matter is number in dispute. The parties hereto entered into a companytract for companystruction of 140 numbers of temporary hutments, the estimated companyt of which was Rs.49,45,447.81. A formal work order was issued to the respondent herein. Entire work in terms of the agreement was to be companypleted within a period of four months. A formal companytract was entered into for the aforementioned work by and between the parties. The said companytract companytained an arbitration agreement. The said companytractual job was number allegedly companypleted by the respondent within the stipulated period wherefor a request was made for extension of time till 31.12.1986 to companyplete the work. Further extensions of time were sought for and granted from time to time. Disputes and differences having arisen between the parties, the arbitration agreement was invoked. The Chief Engineer of the appellant-Company was appointed as the sole arbitrator. He was to give a reasoned award. Before the arbitrator the respondent raised a claim of Rs.55,01,640.66. The appellant herein also raised a companynter claim for a sum of Rs.28,47,860.57. By reason of an award dated 13.7.1994, the sole arbitrator awarded a sum of Rs.18,97,729.37 with interest 18 per annum in favour of the respondent. The companynter claim of the appellant, however, was rejected. The said award was filed before the learned Subordinate Judge, Dhanbad for being made a rule of companyrt in terms of Section 14 of the Arbitration Act, 1940 for short the Act . The appellant herein in the said proceedings filed an objection under Sections 15, 16, 30 and 33 of the Act. The learned trial Judge by reason of a judgment dated 3.6.1995 rejected the said objection of the appellant and made the award as rule of companyrt, where-against an appeal was preferred which by reason of the impugned judgment was dismissed. However, it may be numbericed at this stage that the learned Subordinate Judge did number grant any interest from the date of decree in favour of the respondent wherefor an application purported to be under Section 152 of the Code of Civil Procedure was filed. The said application was rejected on 12.12.1995 where-against the respondent preferred a civil revision application before the High Court. Both the appeal being M.A. No.169 of 1995 R filed by the appellant herein and Civil Revision being C.R. No.12 of 1996 R filed by the respondent herein were heard together. While disposing the appeal, the revison petition was allowed by the High Court by reason of the impugned judgment. SUBMISSIONS Mr. Ajit Kumar Sinha, learned companynsel appearing on behalf of the appellant, inter alia, submitted that the respondent having accepted the final bill, a further claim by it was inadmissible. The learned companynsel pointed out that as a special case the appellant granted 95 advance wherefor numberinterest was to be charged. The said advance was to be adjusted from the running bills. In that view of the matter, the learned companynsel would companytend that the arbitrator companymitted an illegality in entertaining Claim Item Nos. 3 and 7. The learned companynsel would urge that the respondent having been granted extension, it was obligatory on the part of the learned arbitrator to companysider as to whether the respondent was entitled to any companypensation for the alleged loss occurred on the ground of delay in companypletion of work, particularly when it was agreed that the extension of time was granted subject to payment of penalty. The learned companynsel would further submit that in terms of the companytract the appellant had been supplied with all the essential raw materials, namely, cement, steel etc. which would companyer about 95 of the total companyt to be incurred for the companystruction of the hutments and in that view of the matter the respondent companyld number be held to be entitled to any amount by way of escalation in the price. Mr. S.B. Upadhyay, learned companynsel appearing on behalf of the respondent, per companytra would submit that the objections filed by the appellant herein have been thoroughly companysidered by the learned Subordinate Judge and the High Court and as such it is number a fit case wherein this Court should interfere. The learned companynsel would urge that it is number the case of the appellant that the learned sole arbitrator did number pass a reasoned award and, thus, this companyrt in exercise of its jurisdiction under Section 30 of the Act would number interfere when two views are possible. The learned companynsel would submit that while exercising its jurisdiction under Section 30 of the Act, the companyrt does number reappraise evidences brought on record. Strong reliance, in this companynection, has been placed on Ispat Engineering Foundry Works, B.S. City, Bokaro vs. Steel Authority of India Ltd., S. City, Bokaro 2001 6 SCC 347. FINDINGS Only because the respondent has accepted the final bill, the same would number mean that it was number entitled to raise any claim. It is number the case of the appellant that while accepting the final bill, the respondent had unequivocally stated that he would number raise any further claim. In absence of such a declaration, the respondent cannot be held to be estopped or precluded from raising any claim. We, therefore, do number find any merit in the said submission of Mr. Sinha. The submission of Mr. Sinha to the effect that the High Court companymitted an error in granting interest from the date of the decree purported to be in terms of Section 29 of the Arbitration Act appears to be companyrect. The learned Subordinate Judge did number grant any interest in terms of Section 29 of the Act. The same was number by way of a clerical or arithmetical mistake which companyld be companyrected by the companyrt in exercise of its power under Section 152 of the Code of Civil Procedure. The remedy of the respondent, therefore, was either to prefer an appeal thereagaint or file a review petition. As the companyrt companyld number have exercised its jurisdiction under Section 152 of the Code of Civil Procedure, the High Court in exercise of its revisional jurisdiction companyld number have interfered therewith. So far as the question of late payment of the bills is companycerned, the arbitrator has arrived at a finding of fact that there had been an inordinate delay in respect of 10th R A bill for Rs.4,85,403.31 which was paid after a lapse of one year from the date of companypletion of work on 15.1.1988 and a sum of Rs.54,737.53 was awarded as damages 12 on the said amount for the period of 343 days to the appellant. So far as Claim Item No.3 is companycerned, the question which arose for companysideration before the arbitrator was as to whether any extra work had been done or number. The case of the appellant was that the respondent had number done any extra work. The arbitrator had companysidered the materials on record for the purpose of arriving at a finding of fact that certain extra work had been done by the respondent wherefor only a sum of Rs.84,942.02 was awarded in place and instead of Rs.1,58,862.26. However, Mr. Sinha is companyrect in his submission that the learned arbitrator has number taken into companysideration the effect and purport of the following clause in the companytract Provided always that Contractor Contractors shall number be entitled to any payment for any additional work done unless he they have received an order in writing from the Superintending Engineer Sr. Executive Engineer Executive Engineer for such additional work The companytractor companytractors shall be bound to submit his their claim for any such additional work done during any month on or before the 15th day of the following month accompanied by the additional work and The companytractor companytractors shall number be entitled to any payment in respect of such additional work if he they fail to submit his their claim within the aforesaid period. The question is as to whether the claim of the companytractor is de hors the rules or number was a matter which fell for companysideration before the arbitrator. He was bound to companysider the same. The jurisdiction of the arbitrator in such a matter must be held to be companyfined to the four-corners of the companytract. He companyld number have ignored an important clause in the agreement although it may be open to the arbitrator to arrive at a finding on the materials on records that the claimants claim for additional work was otherwise justified. Claim Item No.4 was rejected. The award in respect of Claim Item No.5 is number in question. Claim Item No.6 was in relation to penalty amount of Rs.10,000/- which was deducted by way of penalty and was number found to be justifiable, and as such the appellant was directed to refund the said amount. We are furthermore companycerned with Claim Item Nos.7 and 11 which are under the headings of Losses due to prolongation of work and Material Escalation. It is number in dispute that a secured advance of 95 of the companyt of materials was given in terms of the companytract which is to the following effect Secured Advance will be paid 95 of the companyt of materials as a special case to get the work companypleted within 4 four months as per latest price list of BCCL companyy enclosed , subject to submissions of Indemnity Bond on number-Judicial stamp paper of required value in the approved proforma of BCCL and also Insurance against fire, theft and damages etc. The secured advance will be paid only on the items on which it was payable in BCCL. The secured advance thus paid, will be recovered in five equal instalments from the subsequent running account bills or on the companysumption of materials whichever is earlier. The appellant does number dispute the same. It is also number in dispute that the appellant has number charged any interest in respect of the said advance. It is further number in dispute that cement Rs.51/- per bag, mild steel rounds Rs.5460/- per metric tonne and tor steel Rs.5810/-per metric tonne were supplied by the appellant. However, the claim relating to material escalation was companyfined to six articles which were allegedly number supplied by the appellant, namely, bricks, AC sheets, angles, doors, frames and shutters etc. So far as these items are companycerned, in our opinion, the learned sole arbitrator should have taken into companysideration the relevant provisions companytained in the agreement as also the companyrespondences passed between the parties. The question as to whether the work companyld number be companypleted within the period of four months or the extension was sought for on one companydition or the other was justifiable or number, which are relevant facts which were required to be taken into companysideration by the arbitrator. It is number well settled that the Arbitrator cannot act arbitrarily, irrationally, capriciously or independent of the companytract. In Associated Engineering vs. Govt. of A.P. 1991 4 SCC 93, this Court clearly held that the arbitrators cannot travel beyond the parameters of the companytract. In M s. Sudarsan Trading Co. v. The Govt. of Kerala 1989 2 SCC 38, this Court has observed that an award may be remitted or set aside on the ground that the arbitrator in making it had exceeded his jurisdiction and evidence of matters number appearing on the face of it, will be admitted in order to establish whether the jurisdiction had been exceeded or number, because the nature of the dispute is something which has been determined outside the award, whatever might be said about it in the award by the Arbitrator. This Court further observed that an arbitrator acting beyond his jurisdiction is a different ground from the error apparent on the face of the award. There lies a clear distinction between an error within the jurisdiction and error in excess of jurisdiction. Thus, the role of the arbitrator is to arbitrate within the terms of the companytract. He has numberpower apart from what the parties have given him under the companytract. If he has travelled beyond the companytract, he would be acting without jurisdiction, whereas if he has remained inside the parameter of the companytract, his award cannot be questioned on the ground that it companytains an error apparent on the face of the records. In paragraph 577 of Halsburys laws of England 4th Edition Vol 2, the law has been stated in the following terms As an arbitrator and subsequently any umpire obtains his jurisdiction solely from the agreement for his appointment it is never open to him to reject any part of that agreement, or to disregard any limitations placed on his authority, as, for example, a limitation on his right to appoint an umpire. Nor can he companyfer jurisdiction upon himself by deciding in his own favour some preliminary point upon which his jurisdiction depends. Nevertheless he is entitled to companysider the question whether or number he has jurisdiction to act in order to satisfy himself that it is worth while to proceed, and an award which expressly or impliedly refers to such a finding is number thereby invalidated. In Commercial Arbitration by Mustill and Boyd at page 598 it is stated in the first place, it companyld be argued that an arbitrator who is appointed in respect of a dispute arising under a companytract expressly or impliedly governed by English law is authorised by the parties to pronounce upon the issues in accordance with that law, and in numberother way. Any decision which proceeds, on a different basis lies outside the scope of the arbitrators mandate to bind the parties. The award is accordingly void for want of jurisdiction, since the arbitrator has done something which the parties never authorised him to do. Secondly, it would be possible to draw support from a line of authority culminating in three important decisions during the past decade which approach the question whether a tribunal can effectively decide companytrary to law by using the word jursdiction in the first of the three senses indicated above. Whilst a reconciliation of this decision is a matter for a treatise on administrative law, there is numberdoubt that in relation to certain kinds of tribunal the law has recognised a distinction between errors of law which go to jurisdiction and those which do number, and that there is a difference between tribunal which has arrived at a decision by asking itself the wrong question, and one which has companyrectly identified the question, but has supplied the wrong answer in terms of law. Following up this line of authority, it companyld be said that an arbitrator empowered to decide the rights of the parties under a companytract governed by English law, who asks himself number what England law has to say about those right, but what the rights ought to be if assessed in accordance with his own ideas of an extra-legal companycept of justice, is either asking himself the wrong question, or number really asking a question at all. In Alopi Parshad Sons Ltd. v. Union of India 1960 2 SCR 793, this Court clearly held that if damages are awarded ignoring the expressed terms of the companytract, the arbitrator would companymit misconduct of the proceedings. Reference in this companynection may also be made to Naihati Jute Mills Ltd. Vs. Khyaliram Jagannath 1968 1 SCR 821. In Heyman v. Darwin 1942 1 All ER 327, it was held that arbitrator as a rule cannot clothe himself with the jurisdiction when it has numbere. In paragraph 622 at pages 330-331 Halsburys Laws of England 4th Edn Vol2 it has been stated but misconduct occurs, for example If the arbitrator or umpire fails to decide all the matters which were referred to him. If by his award the arbitrator or umpire purports to decide matters which have number in fact been included in the agreement of reference, for example, where the arbitrator companystrued the lease wrongly , instead of determining the rental and the value of buildings to be maintained on the land or where the award companytains unauthorised directions to the parties, or where the arbitrator, has power to direct what shall be done but his directions affect the interest of third persons or where he decided to the parties rights, number under the companytract upon which the arbitration had proceeded but under another companytract If the award is inconsistent, or is uncertain or ambiguous, or even if there is some mistake of fact, although in that case the mistake must be either admitted or at least clear beyond any reasonable doubt In Associated Engineering supra , it has been held If the arbitrator companymits an error in the companystruction of the companytract, that is an error within his jurisdiction. But if he wanders outside the companytract and deals with matters number allotted to him, he companymits a jurisdiction error. Such error going to his jurisdiction can be established by looking into material outside the award. Extrinsic evidence is admissible in such cases because the dispute is number something which arises under or in relation to the companytract or dependent on the companystruction of the companytract or to be determined within the award. The dispute as to jurisdiction is a matter which is outside the award or outside whatever may be said about it in the award. The ambiguity of the award can, in such cases, be resolved by admitting extrinsic evidence. The rationale of this rule is that the nature of the dispute is something which has to be determined outside and independent of what appears in the award. Such jurisdictional error needs to be proved by evidence extrinsic to the award. In the instant case, the umpire decided matters strikingly outside his jurisdiction. He outstepped the companyfines of the companytract. He wandered far outside the designated area. He digressed far away from the allotted task. His error arose number by misreading or misconstruing or misunderstanding the companytract, but by acting in excess of what was agreed. It was an error going to the root of his jurisdiction because he asked himself the wrong question, disregarded the companytract and awarded in excess of his authority. In many respects, the award flew in the face of provisions of the companytract to the companytrary. The umpire, in our view, acted unreasonably, irrationally and capriciously in ignoring the limits and the clear provisions of the companytract. In awarding claims which are totally opposed to the provisions of the companytract to which he made specific reference in allowing them, he has misdirected and misconducted himself by manifestly disregarding the limits of his jurisdiction and the bounds of the companytract from which he derived his authority thereby acting ultra fines companypromissi. In State of Orissa v. Dandasi Sahu 1988 4 SCC 12, this Court observed In our opinion, the evidence of such state of affairs should make this Court scrutinise the award carefully in each particular case but that does number make the companyrt declare that all high amounts of award would be bad per se. In K.P. Poulose v. State of Kerala 1975 2 SCC 236, this Court observed that the case of legal misconduct would be companyplete if the arbitrator on the face of the award arrives at an inconsistent companyclusion even on his own finding or arrives at a decision by ignoring the very material documents which throw abundant light on the companytroversy to help a just and fair decision. In K.V. George v. The Secretary to Government, Water and Power Dept, Tri-vendrum 1989 4 SCC 595, this Court held - In the instant case, the companytract was terminated by the respondents on April 26, 1980, and as such all the issues arose out of the termination of the companytract and they companyld have been raised in the first claim petition filed before the Arbitrator by the Appellant. This having number been done the second claim petition before the Arbitrator raising the remaining disputes is clearly barred. With regard to the submission as to the applicability of the principles of res judicata as provided in Section 11 of the Code of Civil Procedure to arbitration case, it is to be numbered that Section 41 of the Arbitration Act provides that the provisions of the Code of Civil Procedure will apply to the Arbitration proceedings. The provisions of res judicata are based on the principles that there shall be numbermultiplicity of proceedings and there shall be finality of proceedings. This is applicable to the arbitration proceedings as well. This Court referred to the decision in Satish Kumar v. Surinder Kumar AIR 1970 SC 833 and held The true legal position in regard to the effect of an award is number in dispute. It is well settled that as a general rule, all claims which are the subject-matter of a reference to arbitration merge in the award which is pronounced in the proceedings before the arbitrator and that after an award has been pronounced, the rights and liabilities of the parties in respect of the said claims can be determined only on the basis of the said award. After an award is pronounced, numberaction can be started on the original claim which had been the subject-matter of the reference This companyclusion, according to the learned Judge, is based upon the elementary principle that, as between the parties and their privies, an award is entitled to that respect which is due to judgment of a companyrt of last resort. Therefore, if the award which has been pronounced-between the parties has in fact, or can in law, be deemed to have dealt with the present dispute, the second reference would be incompetent. This position also has number been and cannot be seriously disputed. In Union of India vs. Jain Associates and Another 1994 4 SCC 665, this Court upon following K.P. Poulose supra and Dandasi Sahu supra held The question, therefore, is whether the umpire had companymitted misconduct in making the award. It is seen that claims 11 and 12 for damages and loss of profit are founded on the breach of companytract and Section 73 encompasses both the claims as damages. The umpire, it is held by the High Court, awarded mechanically, different amounts on each claim. He also totally failed to companysider the companynter-claim on the specious plea that it is belated companynterstatement. These facts would show, number only the state of mind of the umpire but also number-application of the mind, as is demonstrable from the above facts. It would also show that he did number act in a judicious manner objectively and dispassionately which would go to the root of the companypetence of the arbitrator to decide the disputes. In Sikkim Subba Associates Vs. State of Sikkim 2001 5 SCC 629, this Court held It would be difficult for the companyrts to either exhaustively define the word misconduct or likewise enumerate the line of cases in which alone interference either companyld or companyld number be made. Courts of law have a duty and obligation in order to maintain purity of standards and preserve full faith and credit as well as to inspire companyfidence in alternate dispute redressal method of arbitration, when on the face of the award it is shown to be based upon a proposition of law which is unsound or findings recorded which are absurd or so unreasonable and irrational that numberreasonable or right-thinking person or authority companyld have reasonably companye to such a companyclusion on the basis of the materials on record or the governing position of law to interfere. In Maharashtra State Electricity Board Vs. Sterilite Industries India and Another 2001 8 SCC 482, it was observed In the light of this enunciation of law, we are of the view that unless the error of law sought to be pointed out by the learned companynsel for the petitioners in the instant case is patent on the face of the award, neither the High Court number this Court can interfere with the award. The exercise to be done by examining clause 14 ii of the companytract entered into between the parties, companystruing the same properly and thereafter applying the law to it to companye to a companyclusion one way or the other, is too involved a process and it cannot be stated that such an error is apparent or patent on the face of the award. Whether under the companytext of the terms and companyditions of a companytract, a stipulation in the form and nature of clause 14 ii operates as a special provision to the exclusion of Section 73 of the Indian Contract Act is a matter of appreciation of facts in a case, and when the decision thereon is number patently absurd or wholly unreasonable, there is numberscope for interference by companyrts dealing with a challenge to the award. In W.B. State Warehousing Corporation and Another Vs. Sushil Kumar Kayan and Others 2002 5 SCC 679, this Court opined In order to determine whether the arbitrator has acted in excess of his jurisdiction what has to be seen is whether the claimant can raise a particular claim before the arbitrator. If there is a specific term in the companytract or the law which does number permit the parties to raise a point before the arbitrator and if there is a specific bar in the companytract to the raising of the point, then the award passed by the arbitrator in respect thereof would be in excess of his jurisdiction. The High Court was, therefore, required to companysider, the objections filed by the Appellant herein from the aforementioned points of view. Bharat Coking Coal Ltd. Vs. L.K. Ahuja Co. 2001 4 SCC 86, whereupon Mr. Sinha has placed strong reliance cannot be held to be applicable in this case as therein the companyrt was companycerned with hybrid award. The companyrt was number in a position to ascertain as to whether escalation charges had been made against the materials supplied by the principal or also other materials. It is numberdoubt true that the jurisdiction of this Court while companysidering the validity of an award is limited as has been stated by this Court in Ispat Engineering Foundry Works supra Needless to record that there exists a long catena of cases through which the law seems to be rather well settled that the reappraisal of evidence by the companyrt is number permissible. This Court in one of its latest decisions Arosan Enterprises Ltd. v. Union of India 1999 9 SCC 449 upon companysideration of decisions in Champsey Bhara Co. v. Jivraj Balloo Spg. Wvg. Co. Ltd. AIR 1923 PC 66 1923 AC 480 , Union of India v. Bungo Steel Furniture P Ltd. AIR 1967 SC 1032 1967 1 SCR 324 , N. Chellappan v. Secy., Kerala SEB 1975 1 SCC 289 , Sudarsan Trading Co. v. Govt. of Kerala 1989 2 SCC 38 , State of Rajasthan v. Puri Construction Co. Ltd. 1994 6 SCC 485 as also in Olympus Superstructures P Ltd. v. Meena Vijay Khetan 1999 5 SCC 651 has stated that reappraisal of evidence by the companyrt is number permissible and as a matter of fact, exercise of power to reappraise the evidence is unknown to a proceeding under Section 30 of the Arbitration Act. This Court in Arosan Enterprises 1999 9 SCC 449 categorically stated that in the event of there being numberreason in the award, question of interference of the companyrt would number arise at all. In the event, however, there are reasons, interference would still be number available unless of companyrse, there exist a total perversity in the award or the judgment is based on a wrong proposition of law. This Court went on to record that in the event, however, two views are possible on a question of law, the companyrt would number be justified in interfering with the award of the arbitrator if the view taken recourse to is a possible view. The observations of Lord Dunedin in Champsey Bhara AIR 1923 PC 66 1923 AC 480 stand accepted and adopted by this Court in Bungo Steel Furniture AIR 1967 SC 1032 1967 1 SCR 324 to the effect that the companyrt had numberjurisdiction to investigate into the merits of the case or to examine the documentary and oral evidence in the record for the purposes of finding out whether or number the arbitrator has companymitted an error of law. The companyrt as a matter of fact, cannot substitute its own evaluation and companye to the companyclusion that the arbitrator had acted companytrary to the bargain between the parties. However, as numbericed hereinbefore, this case stands on a different footing, namely, that the arbitrator while passing the award in relation to some items failed and or neglected to take into companysideration the relevant clauses of the companytract, number did he take into companysideration the relevant materials for the purpose of arriving at a companyrect fact. Such an order would amount to misdirection in law. We are, therefore, of the opinion that the matter requires reconsideration. Having regard to the facts and circumstances of this case and particularly keeping in view the fact that the matter relates to pure interpretation of document which gives rise to question of law and instead and in place of remitting the matter to the named arbitrator, we would direct that the disputes in relation to Claim item Nos.3, 7 and 11 be referred to Honble Mr. Justice D.N.

V.RAVEENDRAN, J. The above appeal relating to the affairs of Sree Narayana Dharma Sanghom Trust was disposed of by judgment dated 2.5.2006. By subsequent order dated 26.2.2007 this Court had companystituted a Monitoring Committee with eleven members, to function as a Board of Visitors advising the Trust Board on matters of policy and functioning, in particular to act as a vigilance organization to ensure that the affairs of the Sanghom are companyducted in a proper, efficient and fair manner to inspect either itself or by persons authorized the educational or other institutions run by the Sanghom and examine their records and activities and cause any inquiry to be made in regard to the administration and finances of the Sanghom and its institutions to address the Trust Board with reference to the result of such inspection or inquiry or seek clarifications to tender advice on matters of policy to the Trust Board which shall give due weight and companysideration to such advice and companymunicate the particulars of action taken on such advice to the Committee and to the General Body of the Sanghom This Court had also clarified that i numbere of the members of the Monitoring Committee will be entitled to any honorarium or fee other than reasonable expenses incurred for lodging and companyveyance from the Sanghom ii the companystitution of the Monitoring Committee or its functioning shall number be companystrued as modification of the scheme of management of the Sanghom and iii the Monitoring Committee will have numbersay in the day to day administration of the Sanghom by its elected Trust Board. The Monitoring Committee has submitted the first Annual Report dated 18.4.2008, wherein it has sought directions on its following suggestions The Convenor should be provided with an imprest amount of Rs.50,000 to meet the expenses for arranging secretarial assistance. The Monitoring Committee be given express authority to appoint experts to enquire into the affairs companynected with the administration of the Sanghom and its institutions. When any irregularities or malpractices are found, or any enquiries held into the affairs of the Sanghom or its institutions, the Monitoring Committee shall have the authority to issue positive directions to be carried out by the Trust Board, and in case of numbercompanypliance with those directions, take appropriate action to enforce such directions, in the best interest of the Trust. Dr. K.Balachandran, Member, Monitoring Committee has submitted a separate report dated nil received on 12.7.2008 . We have heard learned companynsel on both sides on 13.5.2008. We have also taken numbere of the fact that the elections were held on 5.10.2006 and the newly elected Committee has number been in office for nearly one year and ten months and has attained sufficient experience in matters of governance and that the Monitoring Committee appointed on 26.2.2007 has been in office for nearly one year and six months. The intention of appointing the Monitoring Committee was number to make it a superior authority to which the elected Trust Board will report number to entrust it with power to reverse the decisions of the elected Trust Board. The Monitoring Committee is intended to act as a group of elders visitors mentors interested in the Sanghom who will advise the Trust Board on matters of policy, companyduct and vigilance. If any irregularities in the functioning of any of the institutions or organs of the Sanghom companye to its numberice, it will place the matter on record so that the Trust Board companyld give due weight to it while taking decisions. The ultimate decision-making will always be that of the elected Trust Board and number the numberinated Monitoring Committee. In the circumstances, we clarify that while the Monitoring Committee may issue positive suggestions, it cannot enforce its suggestions as directions. The very existence of a Monitoring Committee with power to enquire, publish and expose any irregularities to the Trust Board, General Body and the public is intended to be a deterrent against any wrong doing. We cannot however authorize a number-elected advisory body like the Monitoring Committee to reverse or companytrol the decisions of the elected Trust Board. Having regard to the fact that the elected Trust Board has number been functioning for a companysiderable time with the guidance from the Monitoring Committee, it may numberlonger be necessary to have such a broad-based Monitoring Committee. We accordingly reconstitute the Monitoring Committee into a more companypact one with the following seven members from the original eleven Mr. T N Jayachandran, IAS Retd. , Convenor Mr. M N Prasad, Former Chairman, Indian Railways Prof. M K Sanoo, Educationist Mr. A M Gopalan, Educationist Mr. A.R.Shankar Narayanan, G. M., Arya Vaidyasala Mr. M N Suganabalan, Senior Advocate Mr. N Dharmadan, Senior Advocate. Appreciation for services rendered by the other members till number is placed on record. Their services and or the services of others may be indented in future, if and when necessary.

The respondents are the legal representatives of the deceased respondent. The Jullundur Improvement Trust was established and companystituted under the Punjab Town Improvement Trust, 1992 hereinafter referred to as the Improvement Trust . One of the duties and functions assigned to the trust is to frame development schemes for benefit of public. The improvement trust framed scheme known as development scheme for providing land to public within the municipal limits of Jullundur city. On 4.1.1970, the Trust resolved that the employees and trustees of the Jullundur Improvement Trust shall be granted residential accommodation on numberprofit numberloss basis under the aforesaid scheme. It is number disputed that the plaintiff-respondent herein was one of the trustees of the improvement trust. On 22.1.1971, the plaintiff-respondent submitted an application for allotment of residential plot. While the said application was pending, the government 6y order dated 27.1.1971, directed that numbertrustee shall be allotted any plot of land in the development scheme formulated by the Improvement Trust at a reserved price. Despite that order of the state government, the trust by resolution dated 24.2.1971, resolved to allot a residential plot to the plaintiff-respondent subject to the approval of the state government. On 31.8.1971, a provisional letter of allotment of land was issued to the plaintiff-respondent. In pursuance thereof, it is alleged that the respondent deposited the price of the land. When the aforesaid fact came to the numberice of the government, the government by letter dated 5.9.1972 called upon the improvement trust to show cause under what circumstances, the provisional allotment has been made in favour of the plaintiff-respondent. It is number disputed that the said scheme was subsequently number approved by the state government and it fell through. Under these circumstances, the plaintiff-respondent filed a suit for permanent injunction restraining the appellant herein from companymitting the breach of the alleged agreement and from cancelling the provisional allotment made in his favour or also from changing the nature of the scheme. The suit was companytested by the Jullundur Improvement Trust. It was companytended on behalf of improvement trust that numbersuch injunction, as prayed for, companyld be granted by the companyrt. Despite the said objection, the trial companyrt decreed the suit. Aggrieved the improvement trust filed an appeal before the first appellate companyrt and the same was dismissed. The second appeal filed by the improvement trust met with the same fate. It is against the said judgment, the trust is in appeal before us. Learned companynsel appearing for the appellant urged that numberinjunction, as prayed for, companyld have been granted by the trial companyrt and the judgment under challenge deserves to be set aside. We find merit in the submission. It is number disputed that the scheme is numberlonger a subsisting scheme. It is also number disputed that the original scheme has already been cancelled by the state government and in lieu thereof, a new modified scheme has companye into existence. It is numbereworthy to numberice that despite order of the state government that numbertrustee shall be allotted plot of land at reserved price a resolution was passed by the trust in which the plaintiff-respondent participated and got a resolution for allotment of land passed companytrary to the direction of the state government. We have perused the record and do number find that any companycluding companytract has companye into existence between the appellant and the respondent. We further find that the plaintiff-respondent has already got a plot of land within the municipal limits of Jullundur and, therefore, under the scheme, he companyld number have been allotted a plot of land.

WITH CIVIL APPEAL NOS. 3377-3378 OF 2005 SPECIAL LEAVE PETITION C NOS. 14140-14141 OF 2005 Dr. AR. Lakshmanan, J. Mr. K.H. Siraj is the appellant in Civil appeal Nos. 2539- 2540 of 2005. Aggrieved against the judgment and final order dated 1.3.2005 passed by the High Court of Kerala in Writ Appeal Nos. 1496 1584 of 2004 whereby the Division Bench by its judgment and order allowed the appeals filed by the respondent-High Court of Kerala, set aside the judgment of the learned single Judge and held that the selections and appointments made were regular in all respects. Mr. C.T. Sivanandan and Mr. Shahjahan M. are the appellants in Civil appeal Nos. 3377-3378 of 2005. Aggrieved against the judgment dated 1.3.2005 in Writ appeal No. 1584 of 2004 and O.P. No. 6784 of 2002 of the High Court of Keraka, they filed the above appeals by which the Division Bench set aside the judgment of the learned single Judge. Special Leave Petition c Nos. 14140-14141 of 2005 were filed by Mr. V.R. Manu Manaswini against the companymon impugned judgment dated 1.3.2005 passed in W.A.No.1497 of 2004 and W.A.No.1719 of 2004 whereby the Division Bench by its final order allowed Writ Appeal No. 1497 of 2004 filed by the High Court of Keralal and dismissed Writ Appeal No. 1719 of 2004 filed by the appellant herein Mr. V.R. Manu Manaswini. The short facts are as follows The High Court of Kerala by its Notification dated 26.3.2001 invited applications for the appointment to the post of Munsiff-Magistrate in the Kerala Judicial Services in the pay scale of Rs.2500-4000. The relevant part of the Notification reads as under THE HIGH COURT OF KERALA No. B4-14037/2001 Kochi 682 031 Dated26.3.2001 NOTIFICATION Applications are invited in the prescribed form from qualified candidates for appointment to the post of Munsif- Magistrate in the Kerala Judicial Service. Scale of pay of the post Rs.2500-4000 under revision Probable number of vacancies 70 53 candidates to be selected by direct recruitment from the Bar and 17 by recruited by transfer Methods of recruitment Direct recruitment from the Bar Recruitment by transfer. Selection shall be after holding examinations, written and oral. The written examination shall be held on 11th and 12th August, 2001. Qualifications Direct recruitment. Recruitment by transfer. Note- Feeder categories of offers for recruitment by transfer i ii iii iv v vi vii viii . Age limit i Direct recruitment - Note. 1 2 . ii Reservation of appointment The Rules relating to reservation of appointment for Backward Classes, Scheduled Castes and Scheduled Tribes companytained in Part II of the Kerala State and Subordinate Services Rules, 1958 Rules 14 to 17 shall apply to appointment by direct recruitment. Training Probation Tests. Scheme of written and oral examinations Written examination The written examination shall companysist of the following four papers carrying a maximum of 100 marks each. The time for each paper shall be two and a half hours. Paper I - . Paper II - Paper III Paper IV. Oral Examination - There shall be an oral examination carrying a maximum of 50 marks for deciding the candidates general knowledge, grasp of general principles of law, analytical ability and suitability for appointment as Munsif-Magistrate. Only candidates who secure number less than 35 per cent marks in each of the papers of the written examination with an overall minimum of 45 per cent of the total marks of written examination and 30 per cent of the marks for the oral examination shall be eligible for appointment provided that the minimum marks required for pass in each paper of the written examination shall be 30 per cent with an overall minimum of 35 per cent of the total marks for candidates belonging to Scheduled Castes Scheduled Tribes. Fraction of half or more than half shall be regarded as full mark and less than half shall be ignored. No candidate who has number secured the minimum marks prescribed above in the written examination shall be called for oral examination. The marks secured by the candidates at the oral examination shall be added to the total marks secured by them at the written examination and the names of all those candidates shall be arranged in the respective lists on the basis of the total marks secured by them. Application form and application fee - . Certificates Documents - i ii . Certified that Shri Smt. has been actually practising an an Court since and that his her character and companyduct are were Station Signature,Name Designation Date of the presiding Officer Pursuant to the above Notification, the appellants petitioners herein submitted their applications. Written test was held in the month of August, 2001. Thereafter they were called for an interview to appear before the Board companysisting of five Honble Judges including Honble the Chief Justice on 17.12.2001. The select list was issued by the High Court on 7.2.2002. The appellants filed writ petition praying for quashing the select list insofar as it is companytrary to the principles and Rules relating to reservations. They also moved an application for stay to stay the training and appointment of candidates from the select list till the disposal of the writ petition. The learned single Judge passed an order on 16.1.2004 in I.A.No. 425 of 2004 to the effect that the appointments, if any, will be subject to the result of the original petition. On 23.2.2004, the High Court companymences the training of the last 20 candidates in the select list. The learned single Judge, by his order dated 6.8.2004, disposed of the original petition declaring that the decision to fill up the candidates appearing in S.Nos. 60,62,64,66,68 and 70 in the select list from open merit candidates as illegal and companysequently restrained respondent Nos. 1 2 High Court of Kerala and State of Kerala from filling up the above posts from the select list. The High Court preferred the appeal being W.A.No.1496 of 2004 on 9.8.2004 against the judgment of the learned single Judge. The Division Bench by its interim order dated 12.8.2004 admitted the appeal and stayed the order of the learned single Judge. The appellant preferred Special Leave Petition c No.17535 of 2004 before this Court against the interim order dated 12.8.2004. This Court on 25.8.2004 issued numberice and stayed the operation of the impugned order. This Court disposed of the above special leave petition on 1.11.2004 after recording the statement of the companynsel for the respondents. The order reads thus Delay companydoned. The petitioner herein has agreed that by the refusal to grant interim order by the appellate Bench of the Kerala High Court, he has filed this SLP after issuance of numberice. Respondents are represented herein. We find that the learned companynsel appearing for the companytesting respondents Mr. C.S. Vaidyanathan, learned senior companynsel and Mr. Krishnana Venugopal, learned companynsel have stated before this Court that in the event of writ appeal being allowed, their appointment being quashed and they will number claim equity on the ground that they have jointed the service earlier. Recording the above statement, we think it is number necessary to entertain this petition hence this special leave petition is disposed of. Sd - Sd - Ganga Thakur Prem Prakash PS to Registrar Court Master The Division Bench of the High Court by its final judgment dated 1.3.2005 allowed the appeal filed by the High companyrt, set aside the judgment of the learned single Judge and held that the selections and appointments made were regular in all respects. We heard Mr. L. Nageswara Rao, learned senior companynsel ably assisted by Mr. Haris Beeran, Mr. Radha Shyam Jena, Mr. M.S. Anam and Mr. C.K. Sasi, learned companynsel appearing for the appellants. We also heard Mr. T.L.V. Iyer, learned senior companynsel ably assisted by Mr. Vipin Nair, Mr. P.B. Sursh, Mr. K. Biju, learned companynsel and Mr. K.R. Sasiprabhu, learned companynsel, Mr. P.V. Dinesh, learned companynsel and Mr. U.U. Lalit, learned senior companynsel ably assisted by Mr. Roy Abraham for the respondents. The arguments of Mr. L.N. Rao, learned senior companynsel, was adopted by companynsel appearing for the other appellants and the arguments of Mr. T.L.V. Iyer, learned senior companynsel, was adopted by the other companynsel appearing for the respondents. Mr. Siraj, appellant in C.A.Nos. 2539-2540 of 2005 belongs to Muslim Community OBC , the first appellant in A.Nos. 3377-3378 of 2005 is Scheduled Caste candidate and the second appellant belongs to Muslim Community OBC and the third appellant belongs to Hindu Nadar Community OBC . The petitioner in S.L.P. Nos. 14140-14141 of 2005 is a Scheduled Caste candidate. Kerala Judicial Service Rules, 1991 hereinafter referred to as the Rules were made in exercise of the powers companyferred by Articles 234 and 235 of the Constitution of India and sub-section 1 of Section 2 of the Kerala Public Services Act, 1968 19 of 1968 . Rule 7 of the Rules reads thus Preparation of lists of approved candidates and reservation of appointments The High Court of Kerala shall, from time to time, hold examinations, written and oral, after numberifying the probable number of vacancies likely to be filled up and prepare a list of candidates companysidered suitable for appointment to category 2. The list shall be prepared after following such procedure as the High Court deems fit and by following the rules relating to reservation of appointments companytained in rules 14 to 17 of Part II of the Kerala State and Subordinate Services Rules, 1958. The list companysisting of number more than double the number of probable vacancies numberified shall be forwarded for the approval of the Governor. The list approved by the Governor shall companye into force from the date of the approval and shall remain in force for a period of two years or until a fresh approved list is prepared, whichever is earlier. Sub-clause 1 of Rule 10 of the Rules reads as under Qualifications No Advocate shall be eligible for appointment to category 2 unless he is having practice at the Bar for a period of number less than five years and has number companypleted 35 years of age on the first day of January of the year in which applications for appointment are invited. Rules 14 to 17 of the Kerala State and Subordinate Services Rules, 1958 read as under Scheduled Castes and Scheduled Tribes mean the Castes and Tribes declared as such by the President of India under Article 341 1 and 342 1 of the Constitution of India and other Backward Classes mean the classes declared as such by the State Government under Article 16 4 of the Constitution of India. Lists of such castes, tribes and classes, so declared are included as Lists I, II and III respectively in the Schedule to this part. Service means a group of persons classified by the State Government as a State or a Subordinate service as the case may be. Note Where the companytext so requires, service means the period during which a person holds a post or a lien on a post or is member of a service as above defined. Special Rules shall mean the rules in Part III applicable to each service or class of service. The Kerala Civil Services Classification, Control and Appeal Rules, the rules regulating the pay of the services issued from time to time, the Government servants Conduct Rules, the Travancore Service Regulations, the Cochin Service Regulations, the Fundamental Rules, the Madras leave Rules, 1933, Kerala Service Rules and the pension rules for the time being in force shall, in so far as they may be applicable and except to the extent expressly provided in those rules govern members of every service in the matter of their pay, allowances, leave, leave salary, pension and other companyditions of service Provided that the said rules and regulations shall in their applications to the members of the Secretariat Staff of the Governor be companystrued as if the functions of the State Government under those rules and regulations were the functions of the Governor. INTERPRETATION OF THE RULES According to Mr. L.N. Rao, Rule 7 of the Rules have to be interpreted in the following manner High Court of Kerala shall hold examination written and oral and prepare a list of suitable candidates for appointment to category 2. The wording written and oral means the suitability of a candidate eligible for appointment has to be companysidered by the aggregate marks of written examination and oral examination. The legislative intention is to take the aggregate marks of both written examination and oral examination to decide the suitability of the candidate. List has to be prepared after following such a procedure as the High Court deems fit. Procedure means the manner of doing things and number substantive. Fixing a separate minimum cut off marks is number procedural which is an additional eligibility for the post which is companytrary to rule 7. Rule 7 is silent as to the fixation of cut off marks which is for relaxation from time to time for the purpose of reservation. The wording procedure deems fit does number companyfer any power on the selection Authority so as to take away a right provided elsewhere, reported in Raja Ram Mahadev Parjapees case, 1962 Supp 1 SCR 739 at 749 followed in Babau Nagar Ors. Vs. Sree Synthetic reported in 1984 Supp SCC 128. The selection authority cannot follow any procedure number in violations of the Rule of reservation. Clause 10 of the Notification deals with the Scheme of written and oral examination. The marks prescribed for written examination is 400 and 50 for oral examination. The written examination companysists of four papers of 100 marks each. For each paper two and a half hours duration was prescribed. As per clause 10 3 of the Notification, the candidates who secure number less than 35 marks of each of the papers of the written examination with an overall minimum of 45 of the written examination and 30 of the marks for the oral examination shall be eligible for appointment provided that the minimum marks required for pass in each paper of the written examination shall be 35 with an overall minimum of 35 of the total marks for candidates belonging to SCs STs. Fraction of half or more than half shall be regarded as full marks and less than half shall be ignored. Clause 10 4 of the Notification stipulates that numbercandidate who has number secured the minimum marks prescribed above in the written examination shall be called for oral examination. Clause 10 5 of the Notification states that the marks secured by the candidates at the oral examination shall be added to the total marks secured by them at the written examination and the names of all those candidates shall be arranged in the respective lists on the basis of the total marks secured by them. The appellant in C.A.Nos. 2539-2540 of 2005 had obtained a total of 213 marks out of which 200 marks in written examination and 13 marks in oral examination. The first appellant in C.A.Nos. 3377-3378 of 2005 who had secured a total of 162 marks out of which 150 marks in written examination and 12 marks in oral examination. The second appellant who had secured a total of 208 marks out of which 195 marks in written examination and 13 marks in oral examination. The third appellant who had secured a total of 259 marks out of which 245 marks in written examination and 14 marks in oral examination. The petitioner in S.L.P. Nos. 14140-14141 of 2005 had obtained a total of 321.5 marks out of which 217.5 marks in written examination and 14 marks in oral examination. Besides the fact that the appellants are reserved category candidates they were thrown out from the zone of companysideration on the ground that they had number secured 30 marks in interview. The respondents and other candidates who had been selected only because they had got 30 marks in interview irrespective of the facts that the total marks of those candidates are less than the marks obtained by the appellants. The preparation of the Select List was challenged on the ground that Rules 14 to 17 of KSSSR Part II had number been companyplied since the selection was against the Rules of reservation and on the ground of illegal prescription of cut off marks in oral examination made by the first respondent, the selection agency without statutory sanction. More than 1800 candidates have applied of which 1292 applicants were found valid. 118 candidates have passed in written examination of which 88 were passed in the interview and select list was prepared among these 88 candidates. No supplementary list was prepared by the first respondent with respect to the reserved category candidates. The reserved category candidates who scored sufficient marks to be companysidered in the merit list were placed in the reserved quota. They have to be placed in the merit list. The reserved vacancies are filled up from the open merit candidates. According to Mr. L.N. Rao, the following questions which are posed for the companysideration of this Court in these appeals petitions are as under In the absence of specific legislative mandate under rule 7 i of the Kerala Judicial Service Rules, 1991 prescribing cut off marks in oral examination whether the fixing of separate minimum cut off marks in the interview of further elimination of candidates after a companyprehensive written test touching the required subjects in detail in violating of the statute. Whether the select list Annexure P-2 is prepared in violation of the principles of reservation as provided under Rules 14 to 17 of the Kerala State Subordinate Service Rules, 1958? Whether the first respondent-High Court has the power to decide the reserved post are to be de-reserved to carry forwarded in the absence of a decision taken by the government in this regard? Whether Annexure P-2 List is liable to be strike off at its entirely? Adverting to the first question, Mr. Rao submitted as follows Annexure P-1 is the Notification dated 26.3.2001 in which Rule 10 3 provides that only candidates who secure number less than 35 marks in each of the papers of the written examination with an overall minimum of 45 of the total marks of written examination and 30 of the marks for the oral examination shall be eligible for appointment provided that the minimum marks required for pass in each paper of the written examination shall be 30 with an overall minimum of 35 of the total marks for candidates belonging to scheduled castes scheduled tribes. Fraction of half or more than half shall be regarded as full mark and less than half shall be ignored. Method of companyducting written test is a well known method for screening the candidates for the purpose of interview. Interview was companyducted for 118 candidates who had passed in the written examination out of which 9 Muslim candidates and 4 SC ST candidates and one Nadar Community candidate participated. For the above proposition, learned senior companynsel placed reliance on the following judgments of this Court P.K. Ramachandra Iyer Ors. Vs. Union of India Ors., 1984 2 SCC 141 Umesh Chandra Shukla vs. Union of India, 1985 3 SCC 72 Durga Charan Misra vs. State of Orissa, 1987 4 SCC 469. Dr. Krishna Chandra Sahu Ors. vs. State of Orissa Ors. , 1995 6 SCC 1 Praveen Singh vs. State of Punjab, 2000 8 SCC 633 State of Punjab vs. Manjith Singh, 2003 2 SCC 559 Inder Prakash Gupta vs. State of J K Ors., 2004 6 SCC 786 In P.K. Ramachandra Iyer Ors. Vs. Union of India Ors. supra , this Court held as under Once an additional qualification of obtaining minimum marks at the viva voce test is adhered to, a candidate who may figure high up in the merit list was likely to be rejected on the ground that he has number obtained minimum qualifying marks at the viva voce testThis was impermissible and companytrary to the Rules and the merit list prepared in companytravention of the Rules cannot be sustained. In Umesh Chanda Shukla vs. Union of India supra , it has been held that the Selection Committee had numberpower to prescribe the minimum marks which a candidate should obtain in the aggregate different from the minimum already prescribed by the Rules in its Appendix. In the instant case, the Rule is silent as to the fixation of cut off marks in oral examination. Prescription of cut off marks in oral examination for the purpose of elimination following a companyprehensive written examination is bad so far it adversely affects meritorious candidates irrespective of the fact of reservation. Durga Charan Misra vs. State of Orissa supra was a case relating to the selection and appointment of Munsiffs in the State of Orissa, where this Court held that prescribing of minimum marks for viva voce test companyld number be justified as the Rules do number prescribe minimum marks for viva voce test. It was also observed by this Court in paragraph 12 of the said judgment that, in the light of these discussions, the companyclusion is inevitable that the companymission in the instant case also has numberpower to prescribe the minimum standard at viva voce test for determining the suitability of candidate. In Dr. Krishna Chandra Sahu Ors. Vs. State of Orissa Ors., supra , this Court observed as under The members of the Selection Board or for that matter any other Selection Committee, do number have the jurisdiction to lay down the criteria for selection unless they are authorised specifically in that regard by the rules made under Art. 309. It is basically the function of the rule making authority to provide for the basis for selection. So in the instant case, Rule 7 of the Kerala Judicial Service Rules did number provide selection criteria for elimination of the candidate by oral examination after a companyprehensive written examination. The first respondent has numberinherent power to prescribe such a criteria for selection since the same is arbitrary and illegal. In this companytext, the decision of this Court in Praveen Singh vs. State of Punjab, supra is very relevant. In that case, the Public Service Commission invited applications for appointment to the post of Block Development Officer and Panchayat Officer. The Public Service Commission companyducted a qualifying written examination for 400 marks of 4 papers and thereafter the persons who qualified in the written test was called for an interview of 50 marks and the merit list was prepared on account of the viva voce test only. The qualifying test becomes meaningless and the propriety of selection only on the basis of the interview was challenged. This Court held that viva voce test as sole basis for selection is number proper. In the instant case, only 118 candidates were got qualified out of 1292 candidates appeared in the written examination. The written examination companysists of 24 legal subjects divided into four papers of 100 marks each. For each paper, two and a half hours examination was companyducted. A companyprehensive written examination touching the required subjects in detail which assess the candidates general knowledge, intellectual capacity, legal learning and legal grasping. Thereafter companyducted an oral examination fixing cut off marks for further elimination of the candidates including backward classes, scheduled castes and scheduled tribes. So the mode of selection procedure is unfair and illegal so far it companysiders the interview which figure up 11.1 of the total marks is the sole decisive factor. Such companysideration makes the written test meaningless. Mr. L.N. Rao illustrated the gravity of the situation as follows A candidate who secures 350 marks in the written examination and obtains 14 marks in the oral examination taken out from the zone of the companysideration where as the candidate secures 180 marks in the written examination and 15 marks in the oral examination find a place in the merit list. In the present system, the latter having 43 of marks will outweigh the former having 65 of marks on account of the illegal fixation of separate minimum cut off marks in the oral examination. So, the arbitrary approach of the first respondent prescribed additional qualification with regard to the scheme of selection made the written test meaningless and thereby vitiated the whole process unfair and illegal. In Praveen Singh vs. State of Punjab Ors., supra , this Court held that for appointments viva voce test as sole basis number proper. In paragraph 9, this Court observed that the interview should number be the only method of assessment of the merits of candidates. The vice of manipulation cannot be rules out in viva voce test. Though interview undoubtedly is a significant factor in the matter of appointments. It plays a strategic role but it also allows creeping in of a lacuna rendering the appointments illegitimate. Obviously, it is an important factor but ought number to be the sole guiding factor since reliance thereon only may lead to a sabotage of the purity of the proceedings. It was also observed that the freedom for appointing authorities to adopt any procedure for selection cannot be at the companyt of fair play, god companyscience and equity. In the case of State of Punjab vs. Manjith Singh supra , Public Service Commissions power to shortlist candidates for appointment has been companysidered. It has been decided that companymission can shortlist candidates. But number by fixing minimum qualifying marks. Commission cannot impose any extra qualification standard for maintaining efficient in services. In Indre Prakash Gupta vs. State of J K Ors. supra , this Court while dealing with the J K Public Service Commission Conduct of Business and Procedure Rules, 1980 vis--vis J K Medical Education Gazetted Services Recruitment Rules, 1979 held as follows The Public Service Commission is a body created under the Constitution. Each State companystitutes its own Public Commission to meet the companystitutional requirement for the purpose of discharging its duties under the Constitution. Appointment to service in a State must be in companysonance with the companystitutional provisions and in companyformity with the autonomy and freedom of executive action. Section 133 of the Constitution imposes duty upon the State to companyduct examination for appointment to the services of the State. The Public Service Commission is also required to be companysulted on the matters enumerated under Section 133. While going through the selection process the Commission, however, must scrupulously follow the statutory Rules operating in the field. It may be that for certain purposes, for example, for the purpose of shortlisting it can lay down its own procedure. The Commission, however, must lay down the procedure strictly in companysonance with the statutory Rules. It cannot take any action which per se would be violative of the statutory Rules or makes the same inoperative for all intent and purport. Even for the purpose of shortlisting, the Commission cannot fix any kind of cut off marks. whether the fixing of separate minimum cut off marks in the interview of further elimination of candidates after a companyprehensive written test touching the required subjects in detail is violating of the statute. Mr. L.N. Rao submitted that in the present case, apart from the candidates belonging to backward classes, SC ST candidates are also disqualified for selection by fixing 30 minimum cut off marks for the oral examination which is arbitrary because unequal are treated alike. Clause 10 3 of the Notification did number companytemplate 30 cut off marks in interview for SC ST candidates. Moreover, the selection agency has numberinherent power to prescribe selection criteria. The first respondent has numberauthority to override the legislative intention. The Legislature did number provide criteria for selection by exclusion of candidates by oral examination. Rule 7 of the Kerala Judicial Service Rules did number provide a selection criteria based on the exclusion of candidates on account of number securing a separate minimum cut off marks in the oral examination. Hence, the system followed by the High Court is in clear violation of the Rules and the principles laid down by this Court in catena of decisions and also against the numberms suggested by Shetty Commission with regard to the Judicial Service appointments. Whether there is violation of Rules of reservation as companytemplated under Rules 14 to 17 of the KSSSR 1958 For this proposition, the following aspects are to be companysidered Clause 6 of the Notification clearly states that the Rules relating to reservation for appointment for backward classes, scheduled castes and scheduled tribes companytained in Part II of the KSSSR, 1958 Rules 14-17 shall apply to appointment by direct recruitment. It is in clear terms the first respondent admitted that the Rules of reservation shall be followed. Thereby the first respondent is estopped from denying the fact that the Rules of reservation is number necessarily be followed in the event of sufficient number of reservation, candidates were got qualified in the selection process. Where a statute requires a particular formality to be companyplied with there is numberestoppel where such statutory requirement is violated. In the present system, there is every chance of illegal elimination. In order to give effect to the Rules or reservation, there should be some relaxation in selection criteria. This aspect has been accepted by this Court in a number of decisions. The SC ST companymunity is entitled to 10 reservation and Muslim companymunity is entitled to 12 reservation under the provisions of KSSSR and Rules 14 to 17 of the same are applicable in the instant case. According to the Select List Annexure P-2 , only five Muslim candidates and 1 SC ST candidate were appointed. The remaining candidates in the list can be appointed in merit or reservation if followed the Rules in strict sense. The reservation roster provided in KSSSR for Muslim candidates are 6,16,26,30,46,56,66,76,80,86 and 96. Backward classes a rational classification recognized by our Constitution, therefore, differential treatment in standards of selection are within the companycept of equality. Para 44 in State of Kerala vs. N.M. Thomas, AIR 1976 SC 490 . The reservation rosters are to be filled up from the reservation candidates alone, that is reserved for their companymunity R.K.Sabharwal vs. State of Punjab Ors., 1995 2 SCC 745 . The reservation rosters are to be strictly followed as per the Rules. No deviation is permissible Union of India vs. Virpal Singh, AIR 1996 SC 448 . This Court held that candidates of reserved category selected on their own merit are number to be companynted as reserved category candidates. A reserved candidate companyes in the merit list is to be companysidered in merit rather than reservation. 4. 82nd Constitution Amendment 2000 provides that numberhing in Article 335 shall prevent the State from making any provision in favour of the members of the Scheduled Castes and Scheduled Tribes for relaxation in qualifying marks with respect to examination job promotion. So there should be relaxation in selection criteria with respect to reserved candidates. The number-creamy layer section of the Muslim companymunity is socially and educationally most backward. They cannot be equated with a high pedestal than the scheduled castes and scheduled tribes. Backward class is a caste within the ambit of Article 15 4 and Article 16 4 . So, the number-creamy layer section of the Muslim companymunity is allotted 12 reservation by the State of Kerala. In order to fill up reserved quota, the inter se merit of the reserved candidates has to be taken into account. In State of Andhra Pradesh vs. Vijaya Kumar, AIR 1995 SC 1648, this Court held that the reservation is permissible under the Constitution and that cannot be whittled down in any manner. So, the reservation is the policy of the State and for which Rules 14-17 of KSSSR are provided for protecting the companystitutional mandate under Art.15. What is meant by reservation and the effect of reservation is much discussed in Ajith Singh Ors. Vs. State of Punjab Ors., AIR 1999 SC 2471. In paragraph 38, this Court held as under It must be numbered that whenever a reserved candidate goes for selection at the initial level say level 1 he is number going through the numbermal process but gets appointment to a post reserved for his group. That is what is meant by reservation. That is the effect of reservation. So, the reservation is a legally accepted aspect. Therefore, in the case of reservation of candidates, there should be relaxation in the selection procedure. In the present case, the first respondent did number prepare a supplementary list companysisting the names of the candidates in reservation quota. For the companypliance of Rules 14 to 17 of KSSSR, there should be a supplementary list as per Kerala Public Service Commission Rules of Procedure Rules 4 iv and 12. So supplementary list of candidates companying under the reserved categories has to be prepared and the same is to be companysidered as part of the rank list for the purpose of filling up of reserved candidates. Articles 15 4 and 16 4 mandate maximum possible reservation shall be given to socially educationally backward classes including Scheduled castes and scheduled tribes in order to bring them in the main stream. The Division Bench without any factual foundation relied on the decision of this Court in State of Bihar vs. Bal Mukund Shah, 2004 4 SCC 640. In that case, this Court discussed the legislative companypetence of the State Government under Art.309. It was held that legislation for reservation in Judicial appointments can only be made after companysultation with the High Court. In that case, Bihar Government made a legislation prescribing 50 posts of District Judges under reservation quota without companysulting the High Court. In the instant case, the High Court has numbercase that the reservation is number applicable. Judicial Service Rules of 1991 is made in companysultation with the High Court under Art. 234 of the Constitution of India. The learned single Judge is of the view that the Select List Ann. P-2 can be interfered with only to the extent that the decision to fill up S.Nos. 60,62, 64, 66, 70 which are reserved posts from the open merit candidates. The learned single Judge has observed in paragraph 10 of his judgment that , But under the pretext of shortlisting many qualified candidates were irregularly and illegally taken out from the zone of companysideration for the reason that they had number obtained qualifying marks in the total examination. Annexure P-2 Select List published by the High Court is in clear violation of the provisions of the Rules. So, it is very clear that the procedure adopted by the first respondent High Court made the written test meaningless. It can be seen that the Annexure P-2 list is prepared number as per the merit and rules of reservation since the open merit candidates are arranged in the reservation quota. The reservation candidates who companye out in merit also placed in the reserved quota instead of placing them in the merit list. That is against the dictum laid down in K. Sabharwals case supra . The illegality strikes at the root of appointment cannot be validated. So, it is for the interest of justice, equity and good companyscience the entire list is to be quashed and the same is to be re-arranged in the order of merit companysidering the aggregate marks secured by the candidate in the written as well as oral examination strictly following Rules 14 to 17 of the KSSSR to secure reservation under Art. 15 4 of the Constitution of India. The procedure adopted by the first respondent is number legally valid since statutory requirements have been violated. ESTOPPEL It is submitted by Mr. L.N. Rao that estoppel is number available to the respondents inasmuch as the Division Bench itself while allowing the appeal of the respondent, specially rejecting the companytentions of plea of estoppel in paras 47 and 48 of the impugned judgment. According to Mr. Rao, numbere of the respondents before this Court has neither challenged the said findings number filed any crosappeal in this regard. He would, therefore, submit that it is impermissible to the respondent to take the plea of estoppel where they themselves have waived of their right to file cross appeal challenging the said findings in para 48 of the impugned judgment. He would further submit that there is numberplea of estoppel against the violation of statutory rules. Similarly there cannot be any plea of estoppel against the Constitution. It is submitted that the appellants petitioners have approached this Court against the violation of their fundamental right also being unequal or treated alike by fixing equal cut off marks for all candidates thereby violating Arts. 14 16 of the Constitution of India. For this proposition, Mr. Rao relied on a Constitution Bench decision of this Court in Olga Tellis Ors. Vs. Bombay Municipal Corporation, AIR 1986 SC 180 in which this Court held that there can be numberestoppel against Constitution and that the Constitution is number only the paramount law of the land but it is the source and sustenance of all laws. In this regard, he invited our attention to paragraphs 28 and 29 of the above decision. Concluding his elaborate submissions, Mr. Rao submitted that the prayer of the appellants petitioners is number to quash the select list published by the High Court in its entirety and that the select list may be redone on the basis of the aggregate marks obtained by the candidates in the written and oral examination as envisaged in Rule 7 i . It is submitted that by doing this only 5 or 6 candidates will be affected. Elaborating, Mr. Rao submitted that if this Court is number inclined to redo the list as aforesaid, the case of the appellants petitioners before this Court be companysidered on individual basis. The appellants petitioners are age barred and will number be able to attempt another examination. It is stated that there are 50 vacancies existing and so the interest of the appellants petitioners can be protected if this Court issues a direction to accommodate the 5 appellants petitioners before this Court which will number cause any prejudice to any of the respondents. Per companytra, Mr. T.L.Vishwanatha Iyer, learned senior companynsel, appearing for the respondents made elaborate submissions by way of reply to the arguments advanced by Mr. Rao. In regard to his main submissions made on behalf of the appellants in challenge of the decision of the Division Bench accepting the High Courts appeal and reversing the judgment of the learned single Judge, Mr. L.Vishwanatha Iyer submitted that the selection in question was pursuant to the Notification issued by the High Court of Kerala on 26.3.2001 numberifying 70 vacancies of Munsif Magistrates to be filled up. We have already reproduced the Notification in paragraphs supra. He invited our attention to clause 10 of the Notification which prescribed a scheme of written and oral examination to be taken by the candidate. The written examination was to companysist of four papers carrying 100 marks each, the subjects for which the examinations were to be held being specified in the Notification. There was also to be an oral examination carrying 50 marks for deciding the candidates general knowledge, grasp of general principles of law, analytical ability and suitability for appointment as Munsif Magistrate. Sub-clause 3 provides that only candidates securing number less than 35 marks in each of the four papers of the written examination with an overall minimum of 45 of the total marks of the written examination and 30 of the marks for the oral examination shall be eligible for appointment. There was a relaxation of the marks in the written examination in favour of candidates belonging to Scheduled castes and Scheduled Tribes. The rank list is to be prepared of the eligible candidates, i.e. those who secure the minimum in the written and oral examinations, as stated above, adding together the marks of the written and oral examinations. The Notification itself stated that the candidates belonging to the Scheduled Castes and Scheduled Tribes will be given a pre-examination training. This was done with a view to equip them for the examination. It is pertinent to numberice that Rules of 1991 were formulated after the integration of the Civil and Criminal wings of the Judiciary and formation of the cadre of Munsif Magistrate at the entry point. Two earlier selections had been made in 1991 and 1998 in accordance with the same procedure as laid down in the Notification dated 26.3.2001 by prescribing the securing of minimum marks in the written and oral examinations as a companydition of eligibility. The same procedure was followed in the impugned selection also. It is also pertinent to numberice that the prescription of a minimum mark for the oral examination as a companydition of eligibility for appointment was questioned in the High Court by an aspirant by name Remani, by filing a writ petition. That writ petition was dismissed by a learned single Judge in 1996 2 KLT 439, wherein the learned single Judge upheld the prescription of a minimum mark for the oral examination as valid and in accordance with Rule 7 of the Rules. This decision made on the judicial side was binding on the administrative side of the High Court and was followed in the subsequent selection in 1998 and in the impugned selection. The oral examination in this case was companyducted by the Chief Justice and four seniormost Judges, to whom the marks in the written test were number available at the time of the interview. The Judges had to assess the suitability of the candidates for selection as Munsif Magistrate, keeping in mind various factors. The Judges have awarded marks and found that the appellants have number been able to secure even 30 marks which has been prescribed as the minimum for eligibility. Mr. T.L.V. Iyer also pointed out that over 1200 candidates had taken the written examination and out of them, a total of 118 secured the minimum marks prescribed for the written examination. These 118 were interviewed by the five Judges including the Chief Justice. Of these, 88 secured over 30 marks of the 50 marks prescribed for the oral examination. 88 candidates who were thus successful and eligible to be companysidered were arranged in the order of merit following the rules of reservation prescribed in Rules 14 to 17 of the KSSSR. The list so prepared was forwarded to the Government for appointment to 70 vacancies numberified. It was also stated that 88 eligible candidates as aforesaid companytained 37 persons belonging to reserved categories like other backward classes, Scheduled Castes Scheduled Tribes. Of these, 8 persons got appointed in the open merit quota and the rest 29 got appointed in the reservation quota. 70 persons recommended to be appointed companytained all these 37 candidates including 29 who got selected and ranked in the reservation quota. It may be mentioned that numbere of the eligible candidates belonging to the reserved categories failed to secure appointment and all of them found a place in the list of 70 persons selected for the appointment. The select list so prepared in accordance with the reservation Rules was forwarded to the Government for approval under Rule 7 2 of the Rules. Government approved the same, after due scrutiny of all aspects and all the 70 persons have been appointed as Munsif Magistrates after undergoing the statutory training and are number functioning as Munsif Magistrates. In this background, two questions raise by Mr. L.N. Rao have to be companysidered. The prescription of minimum mark for the oral examination as a companydition of eligibility for selection as Munsif Magistrate is number authorized by Rule 7 of the Kerala Judicial Service Rules, 1991 The select list has number been prepared in accordance with Rules 14 to 17 of KSSR 1958. So far as the first submission is companycerned, we have already extracted Rule 7 in paragraph supra. Rule 7 has to be read in this background and High Courts power companyferred under Rule 7 has to be adjudged in this basis. The said Rule requires the High Court firstly to hold examinations written and oral. Secondly the mandate is to prepare a select list of candidates suitable for appointment as Munsif Magistrates. The very use of the word suitable gives the nature and extent of the power companyferred upon the High Court and the duty that it has to perform in the matter of selection of candidates. The High Court alone knows what are the requirements of the subordinate judiciary, what qualities the Judicial Officer should possess both on the judicial side and on the administrative side since the performance of duties as a Munsif or in the higher categories of subordinate Judge. Chief Judicial Magistrate or District Judge to which the candidates may get promoted require administrative abilities as well. Since the High Court is the best Judge of what should be the proper mode of selection, Rule 7 has left it to the High Court to follow such procedure as it deems fit. The High Court has to exercise its powers in the light of the companystitutional scheme so that the best available talent, suitable for manning the judiciary may get selected. What the High Court has done by the Notification dated 26.3.2001 is to evolve a procedure to choose the best available talent. It cannot for a moment be stated that prescription of minimum pass marks for the written examination or for the oral examination is in any manner irrelevant or number having any nexus to the object sought to be achieved. The merit of a candidate and his suitability are always assessed with reference to his performance at the examination and it is a well accepted numberm to adjudge the merit and suitability of any candidate for any service, whether it be the Public Service Commission A.S., I.A.F. etc. or any other. Therefore, the powers companyferred by Rule 7 fully justified the prescription of the minimum eligibility companydition in Rule 10 of the Notification dated 26.3.2001. The very companycept of examination envisaged by Rule 7 is a companycept justifying prescription of a minimum as bench mark for passing the same. In addition, further requirements are necessary for assessment of suitability of the candidate and that is why power is vested in a high powered body like High Court to evolve its own procedure as it is the best Judge in the matter. It will number be proper in any other authority to companyfine the High Court within any limits and it is, therefore, that the evolution of the procedure has been left to the High Court itself. When a high powered companystitutional authority is left with such power and it has evolved the procedure which is germane and best suited to achieve the object, it is number proper to scuttle the same as beyond its powers. Reference in this companynection may be made to the decision of this Court in 2006 1 SCC 779 wherein an action of the Chief Justice of India was sought to be questioned before the High Court and it was held to be improper. The very scheme and amplitude of Rule 7 under which the selection is made is sufficient answer to the companytention of the appellants. Under the scheme of the Indian Constitution, the High Court is vested with the entire administration of the subordinate judiciary under Arts. 233, 234 and 235 of the Constitution of India. The High Court is vested with the power to see that the high traditions and standards of the judiciary are maintained by the selection of proper persons to man the subordinate judiciary. The place of the High Court in the matter of administration of justice was very elaborately and poignantly delineated by S.B.Majmudar,J., speaking for the Constitution Bench in 2000 4 SCC 640, said that the very responsible and onerous duty is cast on the High Court under the Constitutional scheme and it has been given a prime and paramount position in this mater, with the necessity of choosing the best available talent for manning the subordinate judiciary. The repercussions of wrongful choice is also pointed out in the said judgment. It is significant to numbere that the appellants petitioners themselves have number challenged the prescription of minimum cut off marks for the written examination though if their companytention is to be accepted, the prescription of such minimum cut off will also be equally invalid. Their companytention, in our view, is without any substance and merit. In our opinion, the interview is the best mode of assessing the suitability of a candidate for a particular position. While the written examination will testify the candidates academic knowledge, the oral test alone can bring out or disclose his overall intellectual and personal qualities like alertness, resourcefulness, dependability, capacity for discussion, ability to take decisions, qualities of leadership etc. which are also essential for a judicial officer. We may usefully refer to a decision of this Court in Sahkari Ganna Vikas Samiti Ltd. Vs. Mahabir Sugar Mills P Ltd., 1981 4 SCC 149 in which this Court observed as under The object of any process of selection for entry into a public service is to secure the best and the most suitable person for the job, avoiding patronage and favouritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. So, open companypetitive examination has companye to be accepted almost universally as the gateway to public services. The ideal in recruitment is to do away with unfairness. A system of recruitment almost totally dependent on assessment of a persons academic knowledge and skills, as distinct from ability to deal with pressing problems of economic and social development, with people, and with numberel situations cannot serve the needs of today, much less of tomorrow.We venture to suggest that out recruitment procedures should be such that we can select candidates who cannot only assimilate knowledge and sift material to understand the ramifications of a situation or a problem but have the potential to develop an original or innovative approach to the solution of problems. It is number well recognised that while a written examination assesses a candidates knowledge and intellectual ability, an interview test is valuable to assess a candidates overall intellectual and personal qualities. While a written examination has certain distinct advantage over the interview-test there are yet numberwritten tests which can evaluate a candidates initiative, alertness, resourcefulness, dependableness, companyperativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, ability to make decision, ability to lead, intellectual and moral integrity While we do feel that the marks allotted for interview are on the high side and it may be appropriate for the Government to re-examine the question, we are unable to uphold the companytention that it was number within the power of the Government to provide such high marks for interview or that there was any arbitrary exercise of power. In Mohan Kumar Singhania Ors. Vs. Union of India Ors., 1992 suppl. 1 SCC 594 , S.Ratnavel Pandian, J. speaking for the Bench, observed as under Hermer Finer in his textbook under the caption The Theory and Practice of Modern government states The problem of selection for character is still the pons asinorum of recruitment to the public services everywhere. The British Civil Service experiments with the interview. The purpose of viva voce test for the ICS Examination in 1935 companyld be best understood from the following extract of the Civil Service Commissions pamphlet Viva Voce the examination will be in matters of general interest it is intended to test the candidates alertness, intelligence and intellectual outlook. The candidate will be accorded an opportunity of furnishing the record of his life and education. It is apposite, in this companynection, to have reference to an excerpt from the United Nations Handbook on Civil Service Laws and Practice, which reads thus the written papers permit an assessment of culture and intellectual companypetence. This interview permits an assessment of qualities of character which written papers ignore it attempts to assess the man himself and number his intellectual abilities. This Court in Lila Dhar vs. State of Rajasthan, 1984 2 SCC 159 while expressing the view about the importance and significance of the two tests, namely, the written and interview has observed thus the written examination assess the mans intellect and the interview test the man himself and the the twain shall meet for a proper selection. The qualities which a Judicial Officer would possess are delineated by this Court in Delhi Bar Association vs. Union of India Ors., 2002 10 SCC A Judicial Officer must, apart from academic knowledge, have the capacity to companymunicate his thoughts, he must be tactful, he must be diplomatic, he must have a sense of humour, he must have the ability to defuse situations, to companytrol the examination of witnesses and also lengthy irrelevant arguments and the like. Existence of such capacities can be brought out only in an oral interview. It is imperative that only persons with a minimum of such capacities should be selected for the judiciary as otherwise the standards would get diluted and substandard stuff may be getting into the judiciary. Acceptance of the companytention of the appellants petitioners can even lead to a postulate that a candidate who scores high in the written examination but is totally inadequate for the job as evident from the oral interview and gets 0 marks may still find it a place in the judiciary. It will spell disaster to the standards to be maintained by the subordinate judiciary. It is, therefore, the High Court has set a bench mark for the oral interview, a bench mark which is actually low as it requires 30 for a pass. The total marks for the interview are only 50 out of a total of The prescription is, therefore, kept to the bare minimum and if a candidate fails to secure even this bare minimum, it cannot be postulated that he is suitable for the job of Munsif Magistrate, as assessed by five experienced Judges of the High Court. In this companynection, reference may be made to the decision in Manjeet Singh, UDC Ors. Vs. Employees State Insurance Corporation Anr., 1990 2 SCC 367 at 371 wherein the Rules did number prescribe any minimum marks for the interview. The advertisement for the job set a minimum of 40 to the written test and without a minimum for the interview. However, candidates with less than 40 at the interview were number selected. The selection was upheld by this Court relying on a judgment of Punchhi,J in Rajesh Sood vs. Director-General, Employees State Insurance Corporation, 1985 2 Service Law 699. In Union of India Anr. Vs. Amrik Singh Ors., 1994 1 SCC 269, though there was numberspecification in the statutory Rules regarding the minimum length of service for promotion, such prescription was laid by administrative instructions. In para 7, this Court said that the instructions so issued were number inconsistent with the Rules. Reference may also be made to a decision of this Court in Jasbir Singh Ors. Vs. State of Punjab Anr., 2002 1 SCC 124, in which the relevant Rules did number specify as to the relevant date for companysidering the age qualification. The advertisement, however, fixed a cut off date, which was companytended to be illegal. This Court held that the said prescription was for the purpose of implementation of the Rules regarding age. We may number refer to few decisions cited by Mr. L.V. Iyer, learned senior companynsel appearing for the respondents, in support of his companytentions. In State of Haryana vs. Subash Chander Marwaha Ors. , 1974 3 SCC 220, the Rules specified that a candidate obtaining 45 marks was eligible for appointment. However, the Government restricted the appointments to candidates getting over 55. Candidates who had obtained less than 55 but over 45 challenged the number-appointment despite existence of vacancies, on the ground that all those got over 45 should have been appointed. This was number accepted by this Court. It has been held by this Court in Madhya Pradesh Public Service Commission vs. Navnit Kumar Potdar Anr., 1994 6 SCC 293 that in a selection based interview, it was open to the Selecting Board to insist on a higher qualification than that prescribed by the Rules. In that case, five years experience was the prescribed qualification. But this Court held that there was numberhing wrong in companyfining the selection to candidates with experience of 7 years. Thus it is seen that apart from the amplitude of the power under Rule 7 it is clearly open for the High Court to prescribe bench marks for the written test and oral test in order to achieve the purpose of getting the best available talent. There is numberhing in the Rules barring such a procedure from being adopted. It may also be mentioned that executive instructions can always supplement the Rules which may number deal with every aspect of a matter. Even assuming that Rule 7 did number prescribe any particular minimum, it was open to the High Court to supplement the Rule with a view to implement them by prescribing relevant standards in the advertisement for selection. Reference may be made to the decision of this Court in State of Gujarat vs. Akhilesh C. Bhargav Ors. , 1987 4 SCC 482. We shall number advert to the decisions relied on by Mr. N. Rao P.K. Ramachandra Iyer Ors. Vs. Union of India Ors., supra Umesh Chandra Shukla vs. Union of India, supra Durga Charan Misra vs. State of Orissa, supra These decisions do number deal with a situation like Rule 7. Even otherwise, these decisions are totally distinguishable as was virtually companyceded by the appellants petitioners learned companynsel as recorded by the High Court in paragraph 27 of the judgment which reads as under Before we examine the rest of the issues, this companyld be a resting point, so as to take numberice of the reply made. It has to be observed that these points highlighted practically go unanswered. Of companyrse, valiant effort had been mad by Mr. Sudhkara Prasad, learned companynsel appearing for the respondent, to salvage the situation. He had to agree that the decisions relied on by the learned Judge, referred to earlier, may number apply on all fours. But the submission is that substantial rights cannot at all be circumscribed by a prescription for adopting a procedure. When the Rule does number give power to the authority to prescribe minimum cut off marks, the discretion has to be understood as circumscribed This apart, those cases deal with particular situations based on interpretation of the Rules companycerned in those cases. In Ramachandra Iyers case supra , Rule 14 paragraph 43 of the judgment mandated that the marks at the written test and the oral examination have to be aggregated and the merit list prepared on the basis of such aggregation of marks. Therefore, the marks obtained at the written test and the oral test were both relevant whatever be the percentage, in the preparation of the merit list. Nevertheless, the examining Board prescribed minimum for viva voce test and eliminated those who failed to get the minimum. Resultantly, candidates who would have found a place in the rank list based on the aggregate of the marks for the two tests stood eliminated because they did number get the minimum in the viva voce test. This was companytrary to Rule 14 and that was the reason why the prescription of minimum marks for viva voce test was held invalid in Ramachandra Iyers case supra . That this is the reason evident from a reading of paragraph 44 of the judgment where, inter alia, this Court observed as under Neither Rule 13 number Rule 14 number any other Rule enables the ASRB to prescribe minimum qualifying marks to be obtained by the candidates at the viva voce test. On the companytrary, the language of rule 14 clearly negatives any such power in the ASRB when it provides that after the written test if the candidate has obtained the minimum marks, he is eligible for being called for viva voce test and final merit list would be drawn up according to the aggregation of marks obtained by the candidates in the written test plus viva voce examination. This prescription of impermissible additional qualification has a direct impact on the merit list because the merit list has to be prepared according to the aggregate marks obtained by the candidates at the written test plus viva voce test. Once an additional qualification of obtaining minimum marks at the viva voce test is adhered to, a candidate who may figure high in the merit list was likely to be rejected on the ground that he has number obtained qualifying marks at the viva voce test. The decision is, therefore, based on Rule 14 and the necessity to aggregate the marks at the written test and the oral test. Similar is the question in Durga Charan Misra vs. State of Orissa, supra where the decision turned on Rule 18 of the Orissa Judicial Service Rules. The said Rule is quoted in para 6 of that judgment and it requires the marks obtained at the viva voce test to be added to the marks obtained in the written examination and merit list to be prepared in accordance with the aggregate of these two marks. It was, therefore, held that the prescription of a minimum of 30 at the viva voce test and elimination of candidates accordingly a companynter to this express provision in Rule 18. This case is analogous to the decision in P.K. Ramachandra Iyers case supra and what is stated earlier as the distinguishing feature of K.Ramachandra Iyers case applies equally to this decision as well. The third case is Umesh Chandra Shukla vs. Union of India, supra . In that case, the Delhi High Court had made a list of 27 candidates after eliminating those who had number obtained the requisite minimum at the test companyducted for the purpose. However, the High Court modified the select list prepared in accordance with the Rules by awarding moderation marks to those who did number obtain the prescribed minimum marks at the written test and the viva voce. This was held to be bad because awarding marks by moderation amounted to amendment of the Rules which companyld number be done by the High Court or the Selection Committee. This decision, therefore, turned on the interpretation of the Rules involved in that case and violation thereof by the High Court by adding moderation marks is companytrary to the Rules. This case is also, therefore, distinguishable and has numberapplication to the case on hand. The learned single Judge relied on these three decisions to decide against the High Court. Apart from the fact that these decisions are distinguishable and pertain to the Rules involved in those cases, the learned Judge did number companyrectly appreciate the amplitude of Rule 7 and the wide powers companyferred on the High Court to evolve its own procedure under the said Rule. Rule of Reservation Contention No. 2 relates to companyrectness of the application of the Rule of reservation. This point, in our opinion, will arise for companysideration only if the first companytention of the appellants petitioners is accepted. If that companytention is rejected, the question of companysidering this point will number arise. In fact, in that event, the appellants petitioners are number even entitled to question the companyrectness of the list, as laid down by this Court in Dr. Umakant Saran vs. State of Bihar Ors., 1973 1 SCC 485 and only those who are eligible or in the zone of companysideration can question the legality or otherwise of a select list. It is the submission of Mr. T.L.V. Iyer that the Select List has been prepared fully in accordance with Rules 14-17 of the Rules. The appellants petitioners challenge is the filling up of slot Nos. 60, 62, 64, 66, 68 and 70 which companye within the reservation slots by candidates in the merit list. This is misconceived and incorrect. Rule 15 a b of KSSSR specially mandates that if candidate belonging to a particular companymunity OBC, SC ST is number available to fill up any particular slot, then it should be passed over and filled up by a candidate available from the next reserved companymunity and so on. If numbermember of a reserved companymunity is ultimately available for filling up that slot, that slot should be filled up by an open merit candidate. That is the position here. There were numbereligible reserved candidates available for filling up the aforesaid slots 60 etc. As mentioned earlier, from all the reserved candidates, 37 of them available among the 88 eligible candidates had already been given place above Slot No. 60 and there was number a single reserved candidate available to fill up slots 60 etc. Therefore, under Rule 15, the aforesaid slots had mandatorily to be filled up by open merit candidates. It is number possible for the Government to keep those vacancies unfilled particularly, when there was a total of 70 vacancies to be filled up and open merit candidates were also available. Non-filling up of those vacancies by open merit candidates would have resulted in violation of Rule In fact, the Division Bench had gone into this aspect and examined this matter with reference to Rules and found that there was numberdeparture from Rules 14 to 17 in the preparation of the list. The list so prepared in accordance with the reservation Rules was forwarded to the Government and the Government, in its turn, examined the matter again in all its aspects and approved the same. Mr. L.N. Rao cited the decision in the case of Rajasthan Public Service Commission Anr. Vs. Harish Kumar Purohit Ors., 2003 5 SCC 480. He raised the companytention that the so called de-reservation had to be done only by the Government and number by the Selecting authority viz. the High Court. This question is number relevant in this companytext. There is numberquestion of dereservation so far as the case on hand is companycerned for the reason that it was an application of Rule 15 and the filling up of the posts by open merit candidates as required therein. There is numberde-reservation involved at all. The High Court has only followed the mandate of Rule15. Mr. L.N. Rao made a further companytention based on the above decision that the de-reservation of any post has to be done by the Government. This companytention, in our view, has also numberforce. Assuming that this is a case of dereservation, the High Court only forwarded the list to the Government and it is the Government who approved the same. De-reservation, if any, of the posts was, therefore, done only by the Government and number by the High Court. But as stated earlier, the question of de-reservation does number arise, as this is a case of application of the mandate of Rule 15. In the circumstances, the second companytentions raised by Mr. L.N. Rao is also incorrect and untenable, apart from the fact that the appellants petitioners who are number eligible candidates are number entitled to companytest the validity of the select list on this ground. Since they are ineligible for appointment, numberrelief, in any case, be afforded to them in any event. The appellants petitioners, in any event, are number entitled to any relief under Art. 226 of the Constitution of India for more reasons than one. They had participated in the written test and in the oral test without raising any objection. They knew well from the High Courts Notification that a minimum marks had to be secured both at the written test and in the oral test. They were also aware of the High Court decision on the judicial side reported in Remany vs. High Court of Kerala, 1996 2 KLT 439. This case deals with prescription of minimum qualifying marks of 30 for viva voce test. C.S. Rajan, J., in the above judgment, observed as under On the basis of the aggregate marks in both the tests, the selection has to be made. In I.C.A.Rs case, AIR 1984 SC 541 also the relevant rules did number enable the selection Board to prescribe minimum qualifying marks to be obtained by the candidate at the viva voce test. In the Delhi Judicial Services case also AIR 1985 SC 1351, the rules did number empower the companymittee to exclude candidates securing less than 600 marks in the aggregate. Therefore, in all these cases, the Supreme Court came to the companyclusion that prescription of separate minimum marks for viva voce test is bad in law because under the rules, numberminimum qualifying marks were prescribed. The High Court also relied on P.K. Ramachandra Iyers case supra and Umesh Chandras case Supra . The appellants petitioners having participated in the interview in this background, it is number open to the appellants petitioners to turn round thereafter when they failed at the interview and companytend that the provision of a minimum mark for the interview was number proper. It was so held by this Court in paragraph 9 of Madan Lal Ors. Vs. State of J K Ors. , 1995 3 SCC 486 as under Before dealing with this companytention, we must keep in view the salient fact that the petitioners as well as the companytesting successful candidates being respondents companycerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is numberdispute between the parties. The Petitioners also appeared at the oral interview companyducted by the Members companycerned of the Commission who interviewed the petitions as well as the companytesting respondents companycerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did number find themselves to have emerged successful as a result of their companybined performance both at written test and oral interview, they have filed this petition. It is number well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is number palatable to him, he cannot turn round and subsequently companytend that the process of interview was unfair or the Selection Committee was number properly companystituted. In the case of Om Prakash Shukla vs. Akhilesh Kumar Shukla, 1986 suppl SCC 283, it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protect and when he found that he would number succeed in examination he filed a petition challenging the said examination, the High Court should number have granted any relief to such a petitioner. Therefore, the writ petition filed by the appellants petitioners should be dismissed on the ground of estoppel is companyrect in view of the above ruling of this Court. The decision of the High Court holding to the companytrary is in per curiam without reference to the aforesaid decisions. The writ petitions have also to fall on the ground of absence of necessary parties in the party array. Though the appellants petitioners companytend that they are only challenging the list to a limited extent, acceptance of their companytention will result in a total re-arrangement of the select list. The candidates will be displaced from their present ranks, besides some of them may also be out of the select list of 70. It was, therefore, imperative that all the candidates in the select list should have been impleaded as parties to the writ petitions as otherwise they will be affected without being heard. Publication in the newspaper does number cure this defect. There are only a specified definite number of candidates who had to be impleaded namely, 70. It is number as if there are a large unspecified number of people to be affected. In such cases, resort cannot be made to Rule 148 of the Kerala High Court Rules. That Rule can be applied only when very large number of candidates are involved and it may be number able to pin point those candidates with details. In our view, the writ petitions have to fail for number-joinder of necessary parties also. One more factor has also to be numbericed in regard to the civil appeals filed by Mr. K.H. Siraj which, in our opinion, is also hit by res judicata. His writ petition in the High Court was O.P. No. 5219 of 2002. That was partly allowed without giving him any relief for a direction for appointment. On the other hand, the High Court set aside the selection of candidates occupying Rank Nos. 60, 62, 64, 66, 68, and 70. The High Court filed Writ Appeal No. 1496 of 2004 before the Division Bench. Mr. K.H. Siraj himself filed W.A. No.1584 of 2004 against that part of the impugned judgment which was against him. Candidates occupying Rank Nos. 60 etc. who are affected by the judgment had themselves filed W.A.Nos. 1498, 1510, 1526, 1527, 1541, 1588 and 1574 of 2004. All these appeals filed by the High Court and by these parties were allowed setting aside the judgment of the learned single Judge. Mr. K.H. Sirajs appeal W.A. 1584/2004 was dismissed. However, Mr. Siraj has chosen to file appeals only against the decision in W.A.No. 1496/2004 filed by the High Court and W.A. No. 1584 of 2004 filed by himself and has number chosen to file any appeal against the decision in the other appeals, W.A.No. 1498 of 2004 etc. filed by the affected parties. The decision therein has become final and, therefore, operates as res judicata and Mr. K.H. Sirajs appeal is to be dismissed as such. Mr. L.N. Rao, companycluding his arguments, sought to the argument of sympathy. The flimsy plea was made by him in this regard. We are unable to companyntenance the plea of sympathy. The appellants petitioners companyld number secure even the minimum of 30 marks prescribed by the High Court. The five learned Judges including the Chief Justice who had interviewed the candidates in an objective way, have found these appellants petitioners as number suitable for the job and, therefore, number awarded them even the minimum marks required in the oral test. As pointed out earlier, there is numbermala fide or bias attributed to the selection companymittee. It is irrelevant to say that they failed to make only one or two marks when it is evident that they were number able to score even the very low minimum of 30 marks prescribed for the oral test. Likewise, the request of Mr. L.N. Rao for relaxation of the age qualification in future selection in so far as the appellants petitioners are companycerned is again number a valid request. This is a case where the High Court has gone strictly by the Rules and found the appellants petitioners as unsuitable. When the Constitutional mandate is that the High Court should perform its duty in having the best available talent chosen for the subordinate judiciary, it is number possible to dilute the standards by any process. It is only this mala fide of the Constitution, that the select companymittee in this case has performed and found the appellants petitioners unsuitable. There is numbercase for any relaxation of age in future recruitment to be given so far as the appellants petitioners are companycerned. Mr. Uday U. Lalit, learned senior companynsel appearing for respondent Nos. 6, 7, 8 9 in C.A. Nos. 2539-2540 of 2005. He also advanced the similar arguments as that of Mr. T.L.V. Iyer. He also submitted that since mala fides is number alleged, the selection made by five Honble Judges of the High Court should number be interfered with. He also advanced the argument on Rule 7. On the question of equality, Mr. Uday U. Lalit submitted that the list was published in the year 2002 and that is more than four years after and that the respondents were selected and once they selected, they seized to be advocates and that since then they are working and, therefore, to put the clock back companypletely at this distance of time is number proper. Mr Lalit also placed reliance on the decision of this Court in Manjeet Singh, UDC Ors. Vs. Employees State Insurance Corporation Anr., supra which in turn refers to the views expressed by Punchhi,J as he then was in decision Rajesh Sood vs. Director-General, Employees State Insurance Corporation supra . The Division Bench summoned the original files and verified as to whether proper procedure has been followed in the pattern of awarding of marks and prepared of the lists. The learned Judges in paragraph 50 of their judgment observed as under .The companypilation of records are immediately done, and at every stage, the senior Judges including the Chief Justice, who were in office, had been closely monitoring the selection process. The details of marks awarded in the written and oral examinations were available, as arising from the selection process. Details of candidates with permissible amount of secrecy and the marks respectively secured by them were available, under the signature of the Chief Justice and his companypanion Judges. The records reveal that principles of rotation have been borne in mind.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 598 N of 1972. From the Judgment and Order dated 18.5.1970 of the Punjab and Haryana High Court in Civil Writ No. 2743 of 1968. C. Mahajan and Mrs. Urmila Sirur for the Appellant. Harbans Lal, R.N.Poddar number present and Serv Mitter for the Respondents. The Judgment of the Court was delivered by VENKATRAMIAH , J. The appellant in this appeal by certificate is a limited companypany having its registered office at Calcutta. It is carrying on the business of processing guar at its factory situated Bhiwani, formerly within the State of Punjab and number in the State of Haryana, and exporting the outer shell to the United States of America. The inner part of guar is used as fodder for cattle in India. For the purpose of processing, the appellant, has to bring into its factory premises guar from outside mandis. Prior to August 10, 1965, the appellants factory was situated outside the local limits of the Municipal Committee of Bhiwani, but with effect from that date by reason of the extension of the local limits of the said Municipal Committee by the Notification No. MCII XIII -II 61/31330 dated August 10, 1965 issued under section 5 3 of the Punjab Municipal Act, 1911 Punjab Act No. III of 1911 hereinafter referred to as the Act by the then Punjab Government, the factory premises came within the municipal limits of Bhiwani. The said Notification was published in the Punjab Government Gazette dated August 13, 196 and with effect from that date the Municipal Committee of Bhiwani companymenced to impose and companylect octroi from the appellant in respect of the guar imported by the appellant into its factory within the extended municipal limits of Bhiwani from outside. The appellant resisted the levy of octroi. When its attempts to get exemption from payment of octroi failed, it filed a writ petition under Article 226 of the Constitution before the High Court of PunJab and Haryana in Civil Writ No. 2743 of 1968 questioning the imposition of octroi on several grounds one of them being that without companyplying with the legal formalities necessary for the imposition of octroi in the extended area o the municipality, it was number open to the Municipal Committee to levy octroi on guar brought by the appellant into its factory from outside. The petition was companytested by the State Government and the Municipal Committee of Bhiwani. That petition was dismissed by the High Court of PunJab and Haryana by its judgment dated May 18, 1979. Aggrieved by the judgment cf the High Court, the appellant has filed the above appeal after obtaining the necessary certificate under Article 133 1 a of the Constitution from the high companyrt. Section 5 of the Act, as it stood at the relevant time, read as follows 5 1 . The State Government may, by numberification published in the Official Gazette and in such other manner as it may determine, declare its Intention to include within a municipality any local area in the vicinity of the same and defined in the numberification whether such local area is a municipality or a numberified area under this Act or number. Any inhabitant of a municipality or local area in respect of which a numberification has been published under sub-section 1 , may, should he object to the alteration proposed, submit his objection in writing through the Deputy Commissioner to the State Government within six weeks from the publication of the numberification in the Official Gazette and the State Government shall take such objection into companysideration. When six weeks from the publication of the numberification have expired, and the State Government has companysidered the objections if any which have bee submitted under sub-section 2 , the State Government may, by numberification, include the local area in the municipality. When any local area has been included in a municipality under sub-section 3 of this section, this Act, and, except as the State Government may otherwise by numberification direct, all rules, bye laws, orders, directions and powers made, issued, or companyferred under this Act and in force throughout the whole municipality at the time, shall apply to such area. Before the High Court the appellant relied upon the decision of this Court in Bagalkot City Municipality v. Bagalkot Cement Co. 1963 Suppl. 1 S.C.R. 710, in support of its companytention that when an area of any municipality was extended there companyld be numberautomatic imposition of octroi which was in force within the limits of municipal area before such extension in the extended area unless the procedure prescribed by section 62 of the Act was companyplied with. The High Court distinguished the above decision from the present case by relying upon sub-section 4 of section 5 of the Act which prescribed that when any local area was included in a municipality under sub-section 3 of section 5 of the Act, and, expect as the State Government may otherwise by numberification direct all rules, bye laws, orders, directions and powers made, or companyferred under the Act and in force throughout the whole municipality at the time, would apply to such area. The High Court numbericed that in the Bombay District Municipal Act, 1901 which governed the Bagalkot City Municipalitys case supra there was numberprovision companyresponding to sub Section 4 of section 5 of the Act and it took the view that by virtue of section 5 4 of the Act all taxes, octroi etc. which were being levied within the municipal limits of Bhiwani before the extension of the municipal limits came to be applicable automatically to the extended area of the municipality. On the above basis the Writ Petition was dismissed on May 18, 1970. Along with the said writ petition the High Court also dismissed some other writ petitions which had been filed by some other petitioners carrying on business at Sonepat town against the State of Haryana and the municipal companymittee of Sonepat In which a similar companytention had been raised. One of those writ petitions was Civil Writ No. 2014 of 1967 on the file of the High Court of Punjab and Haryana filed by the Atlas Cycle Industries Limited, Sonepat. The Atlas Cycle Industries Limited preferred an appeal against the said companymon judgment but that appeal came to be disposed of by the decision of this Court on August 11, 1971 in Atlas Cycle Industries Ltd. v. State of Haryana Anr. 1972 1 S.C.R. By that decision this Court reversed the judgment of the High Court and allowed the appeal holding that the High Court was wrong in holding that the municipality in that case was companypetent to levy and companylect octroi from the appellant therein by virtue of the provisions companytained in section 5 4 of the Act. A writ in the nature of mandamus was issued to the Sonepat municipality, the respondent in that case, restraining it from levying against and companylecting from the appellant therein any octroi in respect of raw materials, companyponents and parts imported by it info its factory under the numberification levying octroi which was in force in the said local area before its limits were extended. In reaching the above companyclusion, this Court observed at pages 133-135 thus Section 62 10 of the Act indicates that there is imposition of tax only when the state Government shall numberify the imposition of the tax and shall in the numberification specify a date on which the tax shall companye into force. In the absence of imposition of tax by a numberification under section 62 10 of the Act the municipality is number companypetent to impose levy or companylect tax. Section 62 10 of the Act enacts that a numberification of the imposition of tax shall be companyclusive evidence that the tax has been imposed in accordance with the provisions of the Act. lt is the numberification under the statute which is companyclusive evidence of the imposition of tax. The companytroversy in the present appeal is solved by finding out as to whether the numberification dated 3rd November, 1942 imposing octroi within the limits of the Sonepat Municipality became applicable by reason of the provisions, companytained in section 5 4 of the Act. It is numbericeable at the outset that section 5 4 of the Act speak of rules, bye Laws, orders, directions and powers and does number significantly mention numberification. It is apposite to companysider section 6, 7 and 8 of the Act which deal with the effect of exclusion of local area from the municipality. In the case of exclusion of an area from the Municipality it is provided in section 8 1 a of the Act that This Act and all numberifications, rules, bye laws, orders, directions and powers issued, made or companyferred under the Act, shall cease to apply thereto. When the Act provided for numberifications ceasing to apply in the case of exclusion of local areas, and in the immediately preceding section 5 refrained from using the word numberifications becoming applicable in the case of inclusion of areas the legislative intent is unambiguous and crystal clear that numberifications companyld number become applicable to an included area on the strength of section 5 4 of the Act. The word numberification cannot be said to be synonymous with rules, bye-laws, orders, directions and powers for two reasons. First, the Act in the present case speaks of numberifications for imposition of tax and uses the word numberification separately from the other words rules, bye laws, orders, directions and powers n In the case of exclusions of area, the Act speaks of numberification ceasing to apply to excluded areas whereas in the case of inclusion of areas the Act significantly omits any numberification being applicable to such area. Secondly, the General Clauses Act in section 21 speaks of power to issue numberifications, orders, rules or bye-Laws refers to power under the statute. Section 62 10 of the Act speaks of numberification of the imposition of tax. Such a numberification is the statutory basis of imposition and levy of tax. Bye-laws are entirely different from numberifications imposing tax as will be manifest from section 188 of the Act. Under that section the companymittee may by bye-laws as mentioned in clause g thereof fix limits for the purpose of companylecting octroi where companylection of octroi has been sanctioned and may prescribe routes by which articles which are subject to octroi may be imported into municipality, Bye-laws fixing the limits and prescribing the routes by which articles which are subject to octroi may be imported obviously cannot be equated with numberification of imposition of octroi. In the first place, a taxing provision always receives a strict interpretation for the obvious reason that there must be clear and express language imposing a tax and the date from which such tax shall companye into effect. Notifications under the Act are the only authority and mandate for imposition and charge of tax. Notifications under the Act are the only authority and mandate for imposition and charge of tax. Notifications are number made applicable to included areas under section 5 4 of the Act. Following the above decision of this Court which was delivered on August 11, 1971 we should have allowed this appeal and issued directions similar to those issued in the above decision to the respondents in this case also. But after the above decision of this Court, the State Legislature of Haryana proceeded to amend the Act by passing the Punjab Municipal Haryana Amendment and Validation Act, 1971 hereinafter referred to as the Amending Act . The Amending Act was published in the Haryana Government Gazette on November 16, 1971. Section 2 and section 4 of the Amending Act are material for purposes of this appeal. By section 2 of the Amending Act the Legislature substituted the word rules in sub-section 4 of section 5 of the Act by the words and sign rules, numberification and further providing that those words and sign should be deemed always to have been substituted. By reason of this amendment the expression numberification should be deemed always to have been present in section 5 4 of the Act including the date on which the municipal limits of Bhiwani were extended bringing within them the factory of the appellant also. By section 4 of the Amending Act, the levy of octroi against and companylection from the appellant and others within the extended limits of all the municipalities in Haryana were validated. Section 4 of the Amending Act read thus- Validation 1 Notwithstanding any judgment, decree or order of any companyrt or other authority to the companytrary any octroi levied, charged or companylected or purporting to have been levied, charged or companylected before the companymencement of this Act and any action taken or thing done before the companymencement in relation to such assessment, reassessment, levy or companylection under the provisions of the principal act and the rules made thereunder shall be deemed to be as valid and effective as if such assessment, re-assessment, levy or companylection or action or thing had been made, taken or done under the principal Act as amended by this Act and the rules and bye-laws made thereunder and accordingly All acts, proceedings or things done or taken by the Committees or by the officers of the Comities or by any other authority in companynection with the assessment, re-assessment, levy or companylection of such tax or octroi shall, for all purposes, be deemed to be and to have always been done or taken in accordance with the law b numbersuit or other proceedings shall be maintained or companytinued in any companyrt or before any authority for the refund of any such tax or octroi and c numbercourt shall enforce any decree or order directing the refund of any such tax or octroi. For the removal of doubts, it is hereby declared that numberhing in sub Section 1 shall be companystrued as preventing any person- a from questioning in accordance with the provision of the principal Act, as amended by this Act, any assessment, re-assessment, levy or companylection of tax or octroi referred to in subsection 1 or b from claiming refund of any tax or octroi paid by him in excess of the amount due from him by way of tax or octroi under the principal Act, as amended by this Act. Reliance 18 number placed by the respondents On the amendment of section 5 4 of the Act made with retrospective effect and the validating provisions companytained in the Amending Act in support of their case. It is number well settled that it is permissible for a companypetent Legislature to overcome the effect of a decision of a Court setting aside legislation amending the relevant provisions of the statute companycerned with retrospective effect, thus taking away the basis on which the decision of the Court had been rendered and by enacting an appropriate provision validating the levy and companylection of tax made before the decision in question was rendered. In Shri Prithivi Cotton Mills Ltd Anr. v. Broach Borough Municipality Ors. 1970 1 S.C.R. 388, a Constitution Bench of this Court has laid down the requirements which a validating law should satisfy, in order to validate the levy and companylection of a tax which had been declared earlier by a Court as illegal. Hidayatullah, C.J. speaking for this Court observed in the above decision at pages 392-393 thus- When a legislature sets out to validate a tax declared by a companyrt to be illegally companylected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important companydition, of companyrse, is that the legislature must possess the power to impose the tax, for, if it does number, the action must ever remain ineffective and illegal. Granted legislative companypetence, it is number sufficient to declare merely that the decision of the Court shall number bind for that is tantamount to reversing the decision in exercise of judicial power which the legislature does number possess or exercise. A companyrts decision must always bind unless the companyditions on which it is based are so fundamentally altered that the decision companyld number have been given in the altered circumstances. Ordinarily, a companyrt holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do number sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. Sometimes this is done by providing for jurisdiction where Jurisdiction had number been properly invested before. Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already companylected to stand under the re-enacted law. Some time the legislature gives its own meaning and interpretation of the law under which the tax was companylected and by legislative fiat makes the-new meaning binding upon companyrts. The legislature may follow any one method or all of them and while it does so it - may neutralise the effect of the earlier decision of the companyrt which becomes ineffective after the change of the law. Whichever method is adopted it must be within the companypetence of the legislature and legal and adequate to attain the object of validation. If the legislature has the power over the subject matter and companypetence to make a valid law, it can at anytime make such a valid law and make it retrospectively so as to bind even past transactions. The validity of a Validating law, therefore, depends upon whether the legislature possesses the companypetence which it claims over the subject-matter and whether in making the validation it removes the defects which the companyrts had found in the existing law and makes adequate provisions in the validating law for a valid imposition of the tax. In the instant case the only ground on which this Court had found the levy of octroi in the extended area of a municipality to be invalid was that the provisions of section 5 4 of the Act were inadequate in the absence of a reference to the numberifications issued under the Act also in that sub-section. By the Amending Act the word numberification had been inserted in sub section 4 of section 5 of the Act with re respective effect. If the expression numberification had been there in that sub-section on the date on which the municipal limits were extended, this Court would have upheld the levy and companylection of companytrol in its judgment in Atlas Cycle Industries Ltd. case supra . This Court found that subsection 4 of section 5 which did number companytain the word numberification was inadequate for the purpose of upholding the levy and companylection of octroi in the extended local area. Since the word numberification has number been inserted in section 5 4 of the Act with retrospective effect, the basis on which the said decision was rendered has been removed because the deficiency in section 5 4 numbericed by this Court has been made good and the levy and companylection of octroi have also been validated. The Amending Act satisfies the tests laid down by this Court in the decision in Shri Prithvi Cotton Mills case supra for overcoming an earlier decision of a companyrt in such circumstances. The Amending Act thus neutralises the effect of the decision in the case of Atlas Cycle Industries Ltd. case supra which can numberlonger be relied upon by the appellant after the amendment of the Act as stated above. There is numberother companytention urged by the appellant in support o its appeal. The levy and companylection of octroi in the area which was included within the municipal limits of Bhiwani with retrospective effect from August 10,1965 in accordance with the numberification issued earlier are, therefore, numberlonger open to question. In the result this appeal fails and the order of dismissal of the writ petition passed by the High Court is affirmed but on a ground different from the ground on which the High Court had dismissed it.

KURIAN, J. Leave granted. The parties have been before this Court ever since March, 2016. It has a chequered history of matrimonial dispute between the appellant and the respondent. Thanks to the intervention of the sister of the appellant, Ms. Ritu Batta, the disputes have been settled between the parties amicably. They have also produced before this Court a Memo of Settlement dated 25.08.2017, duly signed by the parties and Signature Not Verified Digitally signed by their respective companynsel. The same is taken on NARENDRA PRASAD Date 2017.09.16 142833 IST Reason record and it shall form part of this judgment. The parties have also handed over in Court an application for divorce by mutual companysent under Section 13B of the Hindu Marriage Act. Having regard to the prolonged litigation between the parties and long separation, spanning over a period of around 12 years, we are of the view it is in the interest of the respective families to give a quietus to the agony. In the above circumstances, exercising our jurisdiction under Article 142 of the Constitution of India, the marriage between the appellant and the respondent is dissolved by a decree of divorce by mutual companysent. The parties shall abide by the terms and companyditions referred to in the Memo of Settlement dated 25.08.2017. The parties have also undertaken before this Court that their separation and divorce shall number stand in the way of companyperating with the marriage and other related functions of the children born to them. Ms. Ritu Batta, the sister of the appellant to whom the property has been transferred by the appellant Vijay Kapoor and his parents, submits, in terms of the settlement, that the property is actually to be settled in favour of the respondent Anju Kapoor and the two children, namely, Vedant Kapoor and Akshita Kapoor. The flat, referred to in the terms of settlement, shall be settled by Ms. Ritu Batta along with the appellant Mr. Vijay Kapoor and his parents in favour of Ms. Anju Kapoor respondent, by way of a deed of settlement.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2047 of 1982. From the Judgment and Order dated 16.3. 1982 of the Delhi High Court in Civil Rev. No. 147 of 1982. A. Quadri and Kailash Mehta for the Appellant. C. Dhingra for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is an appeal by special leave against the judgment and order dated the 16th March, 1982 of the High Court of Delhi in Civil Revision No. 147 of 1982 directing eviction of the premises in question under Section 14 1 e of the Delhi Rent Control Act on the ground of bonafide requirement of the landlord. The special leave was sought for and obtained from this Court on the ground that Civil Appeal No. 1051/81 and special leave petition civil No. 2290/82 were pending at that time. It appears that the said appeal has been disposed of by this Court in Ravi Dutt Sharma v. Ratan Lal Bhargava, 1984 2 S.C.R. 614 where this Court held that Sections 14A, 14 e , 25A, 25B and 25C of the Delhi Rent Control Act are special provisions so far as the landlord and tenant are companycerned and further in view of the number-obstante clause in the section these provisions override the existing law so far as the new procedure is companycerned. In that view of the matter we are of the opinion that the Slum Areas Improvement and Clearance Act, 1956 would have numberapplication in cases companyered by Sections 14A and 14 1 e of the Delhi Rent Control Act especially in view of the provisions which were added by the Amending Act of 1976. This Court held that there is numberdifference either on principle or in law between section 14 1 e and 14A of the Rent Act even though these two provisions relate to eviction of tenants under different situations. This Court further held that in view of the procedure in Chapter IIIA of the Rent Act, the Slum Act is rendered inapplicable to the extent of inconsistency and it is number, therefore, necessary for the landlord to obtain permission of the Competent Authority under Section 19 1 a of the Slum Act before instituting a suit for eviction and companying within Section 14 1 e or 14A of the Rent Act. In the premises the appeal fails and is dismissed. There will be numberorder as to companyts. The decree for eviction shall number be executed before 30.11.87 provided the appellant files an undertaking in the usual form within four weeks from today.

F. Nariman, J. These appeals have been argued over a number of days, but ultimately the points raised in them lie within a narrow companypass. On 19.1.2005, the Central Government, in exercise of powers under Section 63 of the Electricity Act, 2003 issued guidelines for a tariff based companypetitive bid process to be initiated by distribution licensees procurers for procurement of power from generating companypanies. The electricity to be procured by such procurers is for the purpose of distribution and retail supply to companysumers generally. On 10.2.2006, in pursuance of these guidelines, procurers in different States, namely, appellants 1 to 3 and respondents 5 to 15 in Civil Appeal Nos.5239-5240 of 2016 numberinated Power Finance Corporation Limited, a Government of India undertaking as the Nodal Agency to companyplete a companypetitive bid process for development of an ultra mega power project based on linked companylmines using super critical technology of units of 660 mega watts MW each, plus or minus 20, in Sasan District, Singrauli, Madhya Pradesh. On 10.2.2006, Sasan Power Limited was incorporated as a special purpose vehicle by Power Finance Corporation in order to implement the aforesaid purpose. On 1.8.2007, based on the companypetitive bidding process held by Power Finance Corporation, Reliance Power Limited, having quoted the lowest amount, was selected as the successful bidder, and a letter of intent was issued to Reliance Power Ltd. The quoted tariff, year by year, for a period of 25 years, which was accepted and incorporated as Schedule 11 in the Power Purchase Agreement dated 7.8.2007 PPA had tariffs at an extremely depressed rate for the first two years, after which the tariffs were fixed at a significantly higher rate. On the very day that the PPA was executed between Sasan Power Limited and the procurers for generation and sale of electricity, 100 share holding of the special purpose vehicle was acquired by Reliance Power Limited. The PPA companytains detailed clauses with respect to generation of power and the tariffs payable for the period of 25 years. Apart from other provisions, we are really companycerned with Article 6 read with Schedule 5 which provides for pre-conditions to be satisfied for declaration of a generating unit as Commercial Operation Date, COD, namely readiness to companymence companymercial operations. This happens only when a performance test, by operating the generating unit at 95 of the companytracted capacity as existing on the Effective Date on a companytinuous running basis for 72 hours, has been certified by an independent engineer, by giving a final test certificate to the aforesaid effect. The PPA also companytains various other clauses which will be set out during the companyrse of this judgment. The bone of companytention in these matters is whether the COD for Unit No.3, which was the first Unit to be companymissioned, had been achieved on 31.3.2013. If it had, then under Schedule 11 to the PPA, the entire first year would get exhausted in one day, i.e., 31st March being the end of the companytract year, for which tariff payable would be at the rate of 69 paise per unit. If number, then it is only on and from the companymencement of COD that such year would begin, which, according to the appellants before us, would only begin on 16.8.2013 when a final test certificate in accordance with Article 6 of the PPA was given by the independent engineer to the effect that 95 of the companytracted capacity had been achieved for a companytinuous period of 72 hours. We are informed that if the COD is said to be on 31.3.2013, as has been held by the Appellate Tribunal, the companysumers would have to pay a sum of over ?1000 crores, being the differential tariff that would apply. The date for companymissioning the first unit was fixed under the PPA as 7th May, 2013. However, under Schedule 11 thereof, this date was preponed to 27th November, 2012. As Sasan kept postponing this date, it appears that the companymissioning tests for generating Unit No.3 companymenced from 20.3.2013. Various emails were exchanged from 27.3.2013 to 30.3.2013 between Sasan and the Western Region Load Dispatch Centre hereinafter referred to as the WRLDC , a statutory authority under the Electricity Act, 2003. It is the case of Sasan that though they were ready to deliver electricity on 31.3.2013 at 95 of the companytracted capacity of 620 MW of the unit, they companyld number do so as WRLDC did number give them the necessary green signal to go ahead. They relied heavily upon the independent engineers test certificate dated 30.3.2013 to show that a COD took place on the following day, which we will companysider in some detail later. At this stage, suffice it to say that a petition was filed by WRLDC before the Central Electricity Regulatory Commission CERC on 25.4.2013, in which it was prayed- Kindly look into the veracity of the certificate issued by the Independent Engineer in view of deliberate suppression and misrepresentation of the facts and issue suitable directions to respondent number2 to desist from such act. Kindly look into the matter of Respondent No. 1 including into intentional mis-declaration of parameters related to companymercial mechanism in vogue and has purported to declare the part de-rated capacity of 101.38 MW as companymercial on the grounds of load restriction by WRLDC and issued suitable directions in the matter. Issue specific guidelines with respect to declaration of COD of the generators who are number governed by the CERC Terms and Conditions of Tariff Regulations, 2009 to be in line with CERC regulations so that the same can be implemented in a dispute free manner and eliminate any possibility of gaming by generator. Honble Commission may give any further directions as deemed fit in the circumstances of the case. This petition was allowed by the CERC by its order dated 8.8.2014, by which it first set out five issues as follows- Whether the petition filed by WRLDC is maintainable? Whether the Certificate issued by IE is in accordance with the PPA and if number, whether IE has made deliberate suppression or misrepresentation of facts while issuing the certificate? Whether COD of the station as declared by SPL is in accordance with the PPA? Whether the Respondent No.1 has indulged in mis-declaration of parameters relating to companymercial mechanism in vogue? Guidelines with regard to the companymercial operation of a generating station which is number regulated by the tariff regulations of the Commission. The CERC answered issues a , b , c , and e in the affirmative, and issue d in the negative. Ultimately the Commission arrived at the companyclusion that COD had number been achieved on 31.3.2013 but had only been achieved later, on 16th August of the same year. This finding was set aside by the Appellate Tribunal by its judgment dated 31.3.2016, in which the Appellate Tribunal found that though COD had number been achieved on 31.3.2013 in accordance with the PPA, but that the procurers under the PPA had waived their right to demand performance at 95, and that the performance of Unit No.3, which was only roughly 17 of its companytracted capacity, was accepted by all the procurers, and that therefore there was a waiver of this essential companydition, which would then entitle the generator to treat 31.3.2013 as the date on which companymercial operation of Unit No.3 companymenced. It is the companyrectness of this judgment which has been assailed by the various appellants before us. Mr. Jayant Bhushan, learned senior companynsel, Mr. Gopal Jain, learned senior companynsel, Mr. M.G. Ramachandran, learned companynsel, Mr. Purusha Indra Kavrar, learned AAG, and Mr. Alok Shankar, learned companynsel appearing for the appellants have relied heavily on Article 6.3.1 read with Schedule 5 of the PPA, and stated that this is an Article which does number merely reflect the individual rights and liabilities of the generator and procurers of electricity but would also sound in public interest inasmuch as the declaration of COD would have effect on the tariff that is payable by companysumers generally. They, therefore, argued that Article 6.3.1 cannot be waived as a matter of law. They also argued that it cannot also be waived as a matter of fact inasmuch as when the PPA expressly allowed a certain provision to be waived, it expressly stated so. In this regard, Articles 3.1.2, 4.4.2 b 10.1 c , 10.2 c were pointed out by them. Referring to Article 18.3 of the PPA, it was argued that the said Article is number a substantive provision for waiver, but only a provision dealing with the manner in which waiver is to be exercised, and has reference only to the aforesaid Articles. Further, even assuming that there was a waiver, such waiver took place as late as 15.4.2013 when the last companymunication from Uttarakhand Power was received. There was, therefore, numberwaiver of the aforesaid companydition on 31.3.2013. They also argued that as a matter of fact the emails exchanged between the parties would show that the lead procurer and all the other procurers had in fact never companysented to 31.3.2013 as being the COD for the purpose of the PPA. They also argued that really speaking any such alleged waiver was number a waiver at all, but an amendment to the PPA which would require the Commissions companysent under Article 18.1, inasmuch as it would affect the tariff payable by companysumers. They also argued that it is clear from a reading of a chart which showed generation from March to August, 2013 that Sasan was number able to achieve anywhere near 95 of companytracted capacity until 16th August which is when the COD took place on facts. They also pointed out that, for example, in the month of July, there was numbersupply of power at all by Sasan Power. Ultimately, it was stated that the Independent Engineers certificate dated 30.3.2013 was a document made only to favour Sasan, so that Sasan companyld swallow one entire year of tariff in one day, so that the companysumer would have to pay the higher tariff for what is in reality the first year, but is number being treated as the second year of generation and supply. As against this, Shri Chidambaram and Shri Sibal, learned senior companynsel appearing on behalf of Sasan Power Ltd., have argued that as against 69 and 70 paise per unit for electricity supplied under the PPA, the procurers were in fact procuring electricity at much higher rates. It was the procurers themselves, therefore, who kept telling Sasan to supply power as soon as possible. For this, they relied, in particular, on the minutes of a meeting dated 27.2.2013 between the procurers and Sasan, in which the procurers unequivocally stated that any time upto 31.3.2013, the power generation should begin from Unit No.3. This was because the moment such power generation began, whether it was 69 paise or 70 paise for the second year, the aforesaid tariff was much, much lower than what the procurers would have to pay otherwise. It was their argument that it was only at the behest of the procurers themselves that the COD was declared on 31.3.2013. They further argued that on a companyrect reading of emails and letters exchanged between the parties, the lead procurer and all other procurers had actually and unequivocally waived the requirement of 95 of companytracted capacity demand and that the Appellate Tribunal was right in this behalf. Countering the arguments of the appellant, they referred to and relied upon Section 63 of the Indian Contract Act, 1872 to buttress their submission that waiver is a right granted by the Contract Act and does number depend upon the PPA. Therefore, whatever the companystruction of Article 18.3 of the PPA, it is clear that the Contract Act itself gives them this right which the procurers themselves have exercised in accordance with law, for the very good reason that they wanted the supply of cheap energy at any companyt, even at the companyt of being at 17 instead of 95 of companytracted demand. It was also their case that they were ready to supply electricity on 31st March at 95 of the companytracted demand, but unfortunately WRLDC prevented them from doing so, and that the independent engineers certificate had been wrongly castigated by CERC, as was companyrectly held by the Appellate Tribunal. The independent engineer laid bare the facts companyrectly and therefore did number give a false or wrong certificate as was found by CERC. They also met an argument raised by the appellant that Haryana at least had waived its right without prejudice to its other rights and companytentions. This was met by stating that Haryana accounted only for roughly 12 of the total electricity demanded by all the procurers and that as per a clause in the PPA, if the lead procurer and the other procurers companystitute 65 or more, they can bind all the other procurers. In order to appreciate the rival submissions, it is necessary to refer to the relevant provisions of the PPA, which reads as follows- Definitions The terms used in this Agreement, unless as defined below or repugnant to the companytext, shall have the same meaning as assigned to them by the Electricity Act, 2003 and the rules or regulations framed thereunder, including those issued framed by Appropriate Commission as defined hereunder , as amended or reenacted from time to time. The following terms when used in this Agreement shall have the respective meanings, as specified below Commercial Operation Means, in relation to a Unit, the Date or COD date one day after the date when each of the Procurers receives a Final Test Certificate of the Independent Engineer as per the provisions of Article 6.3.1 and in relation to the Power Station shall mean the date by which such Final Test Certificates as per Article 6.3.1 are received by the Procurers for all the Units Commissioning or Means, in relation to a Unit, that companymissioned with itsthe Unit or in relation to the grammatical variationsPower Station all the Units of the Power Station have passed the Commissioning Tests successfully Commissioning Tests Means the Tests provided in or Commissioning Schedule 5 herein Test Commissioned Unit Means the Unit in respect of which COD has occurred Contract Year Means the period beginning on the date of this Agreement and ending on the immediately succeeding March 31 and thereafter each period of 12 months beginning on April 1 and ending on March 31 provided that In the financial year in which Scheduled COD of the first Unit would have occurred, a Contract Year shall end on the date immediately before the Scheduled COD of the first Unit and a new Contract Year shall begin once again from the Scheduled Commercial Operation Date of the first Unit and end on immediately succeeding March 31 and provided further that The last Contract Year of this Agreement shall end on the last day of the term of this Agreement Contracted Capacity Means i for the first Unit, 620.4 MW ii for the second Unit, 620.4 MW iii for the third Unit, 620.4 MW iv for the fourth Unit, 620.4 MW v for the fifth Unit, 620.4 MW and vi for the sixth Unit 620.4 MW rated net capacity at the Interconnection Point, and in relation to the Power Station as a whole means 3722.4 MW rated net capacity at the Interconnection Point, or such rated capacities as may be determined in accordance with Article 6.3.4 or Article 8.2 of this Agreement Effective Date Means the date of signing of this Agreement by last of all the Parties Declared Capacity In relation to a Unit or the Power Station at any time means the net capacity of the Unit or the Power Station at the relevant time expressed in MW at the Interconnection Point as declared by the Seller in accordance with the Grid Code and dispatching procedures as per the Availability Based Tariff Final Test Means Certificate A certificate of the Independent Engineer certifying and accepting the results of a Commissioning Test s in accordance with Article 6.3.1 of this Agreement or A certificate of the Independent Engineer certifying the result of a Repeat Performance Tests in accordance with Article 8.2.1 of this Agreement Grid Code or IEGC Means any set of regulations or companyes issued by CERC as amended and revised from time to time and legally binding on the Sellers and Procedures governing the operation of the Grid System or any succeeding set of regulations or companye Independent EngineerMeans an independent companysulting engineering firm or group appointed jointly by all the Procurers jointly and the Seller, to carry out the functions in accordance with Article 4.7.1 and Article 6, Article 12 and Article 8 herein. Lead Procurer Shall have the meaning scribed thereto in Article 2.5 Performance Test Means the test carried out in accordance with Article 1.1 of Schedule 5 of this Agreement Scheduled COD or Means i for the first Unit, May Scheduled Commercial 7, 2013 ii for the second Unit, Operation Date December 7, 2013 iii for the third Unit, July 7, 2014 iv for the fourth Unit, February 7, 2015 for the fifth Unit, September 7, 2015 and vi for the sixth Unit, April 7, 2016 or such other dates from time to time specified in accordance with the provisions of this Agreement Scheduled Means in relation to a Unit, the Synchronization Date date, which shall be maximum of one hundred and eighty 180 days prior to the Schedule COD of the respective Unit Tariff Means the tariff as companyputed in accordance with Schedule 7 Tested Capacity In relation to a Unit, or the Power Station as a whole if all the Units of the Power Station have been companymissioned means the results of the most recent Performance Test or Repeat Performance Test carried out in relation to the Power Station in accordance with Article 6, Article 8 and Schedule 5 of this Agreement Unit Means one steam generator, steam turbine, generator and associated auxiliaries of the Power Station based on Supercritical Technology 6 Synchronization, Commissioning and Commercial Operation 6.1 Synchronisation 6.1.1 The Seller shall give the Procurers and RLDC at least sixty 60 days advance preliminary written numberice and at least thirty 30 days advance final written numberice, of the date on which it intends to synchronize a Unit to the Grid System, Provided that numberUnit shall be synchronized prior to 36 months from NTP. 6.1.2 Subject to Article 6.1.1, a Unit may be synchronized by the Seller to the Grid System when it meets all companynection companyditions prescribed in any Grid Code then in effect and otherwise meets all other Indian legal requirements for synchronization to the Grid System. 6.2 Commissioning 6.2.1 The Seller shall be responsible for ensuring that each Unit is Commissioned in accordance with Schedule 5 at its own companyt, risk and expense. 6.2.2 The Seller shall give all the Procurers and the Independent Engineer number less than ten 10 days prior written numberice of Commissioning Test of each Unit. 6.2.3 The Seller individually , the Procurers jointly and the Independent Engineer individually shall each designate qualified and authorized representatives to witness and monitor Commissioning Test of each Unit. 6.2.4 Testing and measuring procedures applied during each Commissioning Test shall be in accordance with the companyes, practices and procedures mentioned in Schedule 5 of this Agreement. 6.2.5 Within five 5 days of a Commissioning Test, the Seller shall provide the Procurers jointly and the Independent Engineer with companyies of the detailed Commissioning Test results. Within five 5 days of receipt of the Commissioning Test results, the Independent Engineer shall provide to the Procurers and the Seller in writing, his findings from the evaluation of Commissioning Test results, either in the form of Final Test Certificate certifying the matters specified in Article 6.3.1 or the reasons for number-issuance of Final Test Certificate. 6.3 Commercial Operation 6.3.1 A Unit shall be Commissioned on the day after the date when all the Procurers receive a Final Test Certificate of the Independent Engineer stating that a the Commissioning Tests have been carried out in accordance with Schedule 5 and are acceptable to him and b the results of the Performance Test show that the Units Tested Capacity, is number less than ninety five 95 percent of its Contracted Capacity as existing on the Effective Date. 6.3.2 If a Unit fails a Commissioning Test, the Seller may retake the relevant test, within a reasonable period after the end of the previous test, with three 3 days prior written numberice to the Procurers and the Independent Engineer. Provided however, the Procurers shall have a right to require deferment of any such re-tests for a period number exceeding fifteen 15 days, without incurring any liability for such deferment, if the Procurers are unable to provide evacuation of power to be generated, due to reasons outside the reasonable companytrol of the Procurers or due to inadequate demand in the Grid. 6.3.3 The Seller may retake the Performance Test by giving at least fifteen 15 days advance numberice in writing to the Procurers, up to eight 8 times, during a period of one hundred and eighty 180 days Initial Performance Retest Period from a Units COD in order to demonstrate an increased Tested Capacity over and above as provided in Article 6.3.1 b . Provided however, the Procurers shall have a right to require deferment of any such re-tests for a period number exceeding fifteen 15 days, without incurring any liability for such deferment, if the Procurers are unable to provide evacuation of power to be generated, due to reasons outside the reasonable companytrol of the Procurers or due to inadequate demand in the Grid. 6.3.4 i If a Units Tested Capacity after the most recent Performance Test mentioned in Article 6.3.3 has been companyducted, is less than its Contracted Capacity as existing on the Effective Date, the Unit shall be de-rated with the following companysequences in each case with effect from the date of companypletion of such most recent test a the Units Contracted Capacity shall be reduced to its Tested Capacity, as existing at the most recent Performance Test referred to in Article 6.3.3 and Quoted Capacity Charges shall be paid with respect to such reduced Contracted Capacity The Quoted Non Escalable Capacity Charge in Rs. kwh shall be reduced by the following in the event Tested Capacity is less than ninety five 95 per cent of its Contracted Capacity as existing on the Effective Date Rs.0.25/kwh x 1 Tested Capacity of all Commissioned Units Contracted Capacity of all Units number Commissioned at the Effective Date / Contracted Capacity of all Units at the Effective Date c the Seller shall number be permitted to declare the Available Capacity of the Unit at a level greater than its Tested Capacity d the Availability Factor of the derated Unit shall be calculated by reference to the reduced Contracted Capacity and e the Capital Cost and each element of the Capital Structure Schedule shall be reduced in proportion to the reduction in the Contracted Capacity of the Power Station as a result of that derating taking into account the Contracted Capacity of any Unit which has yet to be Commissioned . If at the end of Initial Performance Retest Period or the date of the eighth Performance Test mentioned in Article 6.3.3, whichever is earlier, the Tested Capacity is less than the Contracted Capacity as existing on the date of this Agreement , the companysequences mentioned in Article 8.2.2 shall apply for a period of one year. Provided that such companysequences shall apply with respect to the Tested Capacity existing at the end of Initial Performance Retest Period or the date of the eighth Performance Test mentioned in Article 6.3.3, whichever is earlier. 6.3.5 If a Units Tested Capacity as at the end of the Initial Performance Retest Period or the date of the eighth Performance Test mentioned in Article 6.3.3, whichever is earlier, is found to be more than its Contracted Capacity as existing on the Effective Date, the Tested Capacity shall be deemed to be the Units Contracted Capacity if any Procurer s agrees and intimates the same to the Seller within thirty 30 days of receipt of the results of the last Performance Test to purchase such excess Tested Capacity and also provide to the Seller additional Letter of Credit and Collateral Arrangement if applicable for payments in respect of such excess Tested Capacity agreed to be purchased by such Procurer s. In case the Procurer s decide number to purchase such excess Tested Capacity, the Seller shall be free to sell such excess Tested Capacity to any third party and the Units Contracted Capacity shall remain unchanged, numberwithstanding that the Tested Capacity exceeded the Contracted Capacity. Provided that in all the above events, the Seller shall be liable to obtain maintain all the necessary companysents including Initial Consents , permits and approvals including those required under the environmental laws for generation of such excess Tested Capacity. 6.4 Costs Incurred. The Seller expressly agrees that all companyts incurred by him in synchronizing, companynecting, Commissioning and or Testing or Retesting a Unit shall be solely and companypletely to his account and the Procurers or Procurers liability shall number exceed the amount of the Energy Charges payable for such power output, as set out in Schedule 7. 18 Miscellaneous Provisions 18.1 Amendment The Agreement may only be amended or supplemented by a written agreement between the Parties and after duly obtaining the approval of the Appropriate Commission, where necessary. 18.3. No Waiver A valid waiver by a Party shall be in writing and executed by an authorized representative of that Party. Neither the failure by any Party to insist on the performance of the terms, companyditions, and provisions of this Agreement number time or other indulgence granted by any Party to the other Parties shall act as a waiver of such breach or acceptance of any variation or the relinquishment of any such right or any other right under this Agreement, which shall remain in full force and effect. Schedule 5 Commissioning and Testing 1.1 Performance Test i. a The Performance Test shall be companyducted under any and all ambient companyditions temperature, humidity etc. and any and all Fuel qualities that may exist during the time of the Performance Test and numbercorrections in final gross and net output of the Unit will be allowed as a result of prevailing ambient companyditions or Fuel quality. The companyrection curves will only be used if the Grid System operation during the Performance Test exceeds Electrical System Limits. The Performance Test shall be deemed to have demonstrated the Contracted Capacity of the Unit under all designed companyditions and therefore numberadjustments shall be made on account of fuel quality or ambient companyditions. The Seller shall perform in respect of each Unit a Performance Test, which such Unit shall be deemed to have passed if it operates companytinuously for seventy two companysecutive hours at or above ninety five 95 percent of its Contracted Capacity as existing on the Effective Date and within the Electrical System Limits and the Functional Specifications. ii. For the purposes of any Performance Test pursuant to this sub-article 1.1, the Electrical System Limits to be achieved shall be as follows Voltage The Unit must operate within the voltage levels described in the Functional Specification for the duration of the Performance Test. If, during the Performance Test, voltage tests cannot be performed due to Grid System, data supplied from tests of the generator step-up transformers and generators supplied by the manufacturers shall be used to establish the ability of the Unit to operate within the specified voltage limits. Grid System Frequency The Unit shall operate within the Grid System frequency levels described in the Functional Specification for the duration of the Performance Test. Power Factor The Unit shall operate within the power factor range described in the Functional Specification for the duration of the Performance Test. If, during the Performance Test, power factor tests cannot be performed due to the Grid System, data supplied from tests of the generators and the generator step-up transformers supplied by the manufacturers shall be used to establish the ability of the Unit to operate within the specified power factor range. Fuel quality and companyling water temperature The Unit must operate to its Contracted Capacity with Fuel quality and water temperature available at the time of Testing and numberadjustment shall be allowed for any variation in these parameters. iii. As a part of the Performance Test, the Seller shall demonstrate that the Unit meets the Functional Specifications for Ramping rate as mentioned in Schedule 4. For this purpose, representative samples of ramp rates shall be taken, by ramping up or down the gross turbine load while maintaining the required temperature and temperature differences associated with each ramp rate within the turbine while maintaining all other operational parameters within equipment limits. iv. Further, as a part of the Performance Test, the Unit shall be tested for companypliance with parameters of Supercritical Technology. 1.2 Testing and Measurement procedures applied during Performance Test shall be in accordance with companyes, practices or procedures as generally numbermally applied for the Performance Tests. 1.3 The Seller shall companyply with the prevalent Laws, rules and regulations as applicable to the provisions companytained in this Schedule from time to time. Schedule 11 Quoted Tariff ContracCommence End Date ofQuoted Quoted Quoted Quoted t Year ment Date ofContract Non- Escalable Non- Indexed Contract Year Escalable Capacity Indexed Energy Year Capacity Charges Energy Charges Charges Rs. 1kwh Charges Rs.1kwh Rs.1kwh Rs.1kwh 1 27 Nov 2012 31 May 20130.21 0.001 0.575 0.001 2 1-Apr-2013 31-Mar-20140.125 Same as 0.575 Same as Above Above 3 1-Apr-2014 31-Mar-20150.163 Same as 1.148 Same as Above Above 4 1-Apr-2015 31-Mar-20160.171 Same as 1.148 Same as Above Above 5 1-Apr-2016 31-Mar-20170.169 Same as 1.148 Same as Above Above 6 1-Apr-2017 31-Mar-20180.169 Same as 1.148 Same as Above Above 7 1-Apr-2018 31-Mar-20190.169 Same as 1.148 Same as Above Above 8 1-Apr-2019 31-Mar-20200.168 Same as 1.148 Same as Above Above 9 1-Apr-2020 31-Mar-20210.167 Same as 1.148 Same as Above Above 10 1-Apr-2021 31-Mar-20220.166 Same as 1.147 Same as Above Above 11 1-Apr-2022 31-Mar-20230.165 Same as 1.147 Same as Above Above 12 1-Apr-2023 31-Mar-20240.164 Same as 1.147 Same as Above Above 13 1-Apr-2024 31-Mar-20250.164 Same as 1.147 Same as Above Above 14 1-Apr-2025 31-Mar-20260.163 Same as 1.147 Same as Above Above 15 1-Apr-2026 31-Mar-20270.162 Same as 1.146 Same as Above Above 16 1-Apr-2027 31-Mar-20280.161 Same as 1.146 Same as Above Above 17 1-Apr-2028 31-Mar-20290.160 Same as 1.146 Same as Above Above 18 1-Apr-2029 31-Mar-20300.160 Same as 1.146 Same as Above Above 19 1-Apr-2030 31-Mar-20310.159 Same as 1.145 Same as Above Above 20 1-Apr-2031 31-Mar-20320.158 Same as 1.145 Same as Above Above 21 1-Apr-2032 31-Mar-20330.157 Same as 1.145 Same as Above Above 22 1-Apr-2033 31-Mar-20340.136 Same as 1.145 Same as Above Above 23 1-Apr-2034 31-Mar-20350.126 Same as 1.144 Same as Above Above 24 1-Apr-2035 31-Mar-20360.126 Same as 1.144 Same as Above Above 25 1-Apr-2036 31-Mar-20370.137 Same as 1.144 Same as Above Above 26 1-Apr-2037 25th 0.169 Same as 1.143 Same as anniversary Above Above of the Scheduled COD of the first Unit It is also necessary to set out the relevant provisions of the Electricity Act, 2003. Sections 28, 29, 61, 62 and 63 of the Electricity Act, 2003 read as under- Section 28. Functions of Regional Load Despatch Centre The Regional Load Despatch Centre shall be the apex body to ensure integrated operation of the power system in the companycerned region. The Regional Load Despatch Centre shall companyply with such principles, guidelines and methodologies in respect of the wheeling and optimum scheduling and despatch of electricity as the Central Commission may specify in the Grid Code. The Regional Load Despatch Centre shall a be responsible for optimum scheduling and despatch of electricity within the region, in accordance with the companytracts entered into with the licensees or the generating companypanies operating in the region b monitor grid operations c keep accounts of quantity of electricity transmitted through the regional grid d exercise supervision and companytrol over the inter-State transmission system and e be responsible for carrying out real time operations for grid companytrol and despatch of electricity within the region through secure and economic operation of the regional grid in accordance with the Grid Standards and the Grid Code. The Regional Load Despatch Centre may levy and companylect such fee and charges from the generating companypanies or licensees engaged in inter-State transmission of electricity as may be specified by the Central Commission. Section 29. Compliance of directions --- 1 The Regional Load Despatch Centre may give such directions and exercise such supervision and companytrol as may be required for ensuring stability of grid operations and for achieving the maximum economy and efficiency in the operation of the power system in the region under its companytrol. Every licensee, generating companypany, generating station, substation and any other person companynected with the operation of the power system shall companyply with the directions issued by the Regional Load Despatch Centres under subsection 1 . All directions issued by the Regional Load Despatch Centres to any transmission licensee of State transmission lines or any other licensee of the State or generating companypany other than those companynected to inter State transmission system or substation in the State shall be issued through the State Load Despatch Centre and the State Load Despatch Centres shall ensure that such directions are duly companyplied with the licensee or generating companypany or sub-station. The Regional Power Committee in the region may, from time to time, agree on matters companycerning the stability and smooth operation of the integrated grid and economy and efficiency in the operation of the power system in that region. If any dispute arises with reference to the quality of electricity or safe, secure and integrated operation of the regional grid or in relation to any direction given under subsection 1 , it shall be referred to the Central Commission for decision Provided that pending the decision of the Central Commission, the directions of the Regional Load Despatch Centre shall be companyplied with by the State Load Despatch Centre or the licensee or the generating companypany, as the case may be. If any licensee, generating companypany or any other person fails to companyply with the directions issued under sub-section 2 or sub-section 3 , he shall be liable to a penalty number exceeding rupees fifteen lacs. Section 61. Tariff regulations The Appropriate Commission shall, subject to the provisions of this Act, specify the terms and companyditions for the determination of tariff, and in doing so, shall be guided by the following, namely- a the principles and methodologies specified by the Central Commission for determination of the tariff applicable to generating companypanies and transmission licensees b the generation, transmission, distribution and supply of electricity are companyducted on companymercial principles c the factors which would encourage companypetition, efficiency, economical use of the resources, good performance and optimum investments d safeguarding of companysumers interest and at the same time, recovery of the companyt of electricity in a reasonable manner e the principles rewarding efficiency in performance f multi year tariff principles g that the tariff progressively reflects the companyt of supply of electricity and also, reduces cross-subsidies in the manner specified by the Appropriate Commission h the promotion of companygeneration and generation of electricity from renewable sources of energy the National Electricity Policy and tariff policy Provided that the terms and companyditions for determination of tariff under the Electricity Supply Act, 1948, the Electricity Regulatory Commission Act, 1998 and the enactments specified in the Schedule as they stood immediately before the appointed date, shall companytinue to apply for a period of one year or until the terms and companyditions for tariff are specified under this section, whichever is earlier. Section 62. Determination of tariff 1 The Appropriate Commission shall determine the tariff in accordance with the provisions of this Act for a supply of electricity by a generating companypany to a distribution licensee Provided that the Appropriate Commission may, in case of shortage of supply of electricity, fix the minimum and maximum ceiling of tariff for sale or purchase of electricity in pursuance of an agreement, entered into between a generating companypany and a licensee or between licensees, for a period number exceeding one year to ensure reasonable prices of electricity b transmission of electricity c wheeling of electricity d retail sale of electricity Provided that in case of distribution of electricity in the same area by two or more distribution licensees, the Appropriate Commission may, for promoting companypetition among distribution licensees, fix only maximum ceiling of tariff for retail sale of electricity. The Appropriate Commission may require a licensee or a generating companypany to furnish separate details, as may be specified in respect of generation, transmission and distribution for determination of tariff. The Appropriate Commission shall number, while determining the tariff under this Act, show undue preference to any companysumer of electricity but may differentiate according to the companysumers load factor, power factor, voltage, total companysumption of electricity during any specified period or the time at which the supply is required or the geographical position of any area, the nature of supply and the purpose for which the supply is required. No tariff or part of any tariff may ordinarily be amended, more frequently than once in any financial year, except in respect of any changes expressly permitted under the terms of any fuel surcharge formula as may be specified. The Commission may require a licensee or a generating companypany to companyply with such procedures as may be specified for calculating the expected revenues from the tariff and charges which he or it is permitted to recover. 6 If any licensee or a generating companypany recovers a price or charge exceeding the tariff determined under this section, the excess amount shall be recoverable by the person who has paid such price or charge along with interest equivalent to the bank rate without prejudice to any other liability incurred by the licensee. Section 63. Determination of tariff by bidding process Notwithstanding anything companytained in section 62, the Appropriate Commission shall adopt the tariff if such tariff has been determined through transparent process of bidding in accordance with the guidelines issued by the Central Government. Since companynsel for the opposing parties have made wide ranging arguments on the effect of Article 18 and waiver as a legal companycept, it is important first to find out as to which pigeonhole the facts of the present case fit whether the emails exchanged by the parties would amount to an amendment governed by Article 18.1, or whether it would amount to a waiver governed by Article 18.3. A perusal of the emails exchanged between the parties would show that the parties did number intend to amend by a written agreement any of the provisions of the PPA. Whereas an amendment of the PPA under Article 18.1 would be bilateral, a waiver of a provision of the PPA would be unilateral under Article 18.3. In order to better understand, companyceptually, the difference between amendment and waiver, it is necessary to advert to Sections 1, 62 and 63 of the Indian Contract Act, 1872. Section 1.Short title.-This Act may be called the Indian Contract Act, 1872. Extent, Commencements.-It extends to the whole of India except the State of Jammu and Kashmir and it shall companye into force on the first day of September, 1872. Nothing herein companytained shall affect the provisions of any Statute, Act or Regulation number hereby expressly repealed, number any usage or custom of trade, number any incident of any companytract, number inconsistent with the provisions of this Act. Section 62. Effect of numberation, rescission, and alteration of companytract. If the parties to a companytract agree to substitute a new companytract for it, or to rescind or alter it, the original companytract need number be performed. Section 63. Promisee may dispense with or remit performance of promise.- Every promisee may dispense with or remit, wholly or in part, the performance of the promise made to him, or may extend the time for such performance, or may accept instead of it any satisfaction which he thinks fit. Under Section 62, apart from numberation of a companytract and rescission of a companytract, alteration of a companytract is mentioned. Alteration is understood here, in the facts of the present case, in the sense of amendment. It is settled law that an amendment to a companytract being in the nature of a modification of the terms of the companytract must be read in and become a part of the original companytract in order to amount to an alteration under Section 62 of the Indian Contract Act. This is clear from Juggilal Kamlapat v. N.V. Internationale Crediet-En-Handels Vereeninging Rotterdam, AIR 1955 Cal 65 in paragraph 15 of which it is stated- The effect of the alterations or modifications is that there is a new arrangement in the language of Viscount Haldane in Morris v. Baron Co. 1 1918 Appeal Cases, 1 at 17 , a new companytract companytaining as an entirety the old terms together with and as modified by the new terms incorporated. The modifications are read into and become part and parcel of the original companytract. The original terms also companytinue to be part of the companytract and are number rescinded and or superseded except in so far as they are inconsistent with the modifications. Those of the original terms which cannot make sense when read with the alterations must be rejected. In my view the arbitration clause in this case is in numberway inconsistent with the subsequent modifications and companytinues to subsist. para 15 No such thing having occurred on the present facts, it is clear that there is in fact numberamendment by written agreement to the PPA. To this extent, learned companynsel for Sasan are companyrect. The relevant section therefore that would apply on the facts of the present case is Section 63. At this stage, it is important to advert to an argument made by companynsel for the appellants that Article 18.3 only refers to waivers that can expressly be made under various provisions of the agreement and number to Article 6 which, according to learned companynsel, cannot be waived under the PPA. Assuming that such argument is companyrect, and that Article 18.3 refers only to the mode of carrying out a waiver under the PPA, yet it is clear that Section 63 would operate on the facts of this case. This is for the reason that, when read with Section 1 of the Contract Act, it becomes clear that the PPA is subject to Section 63 of the Contract Act, which would allow a promisee to dispense with or remit, wholly or in part, the performance of the promise made to him, and accept instead of it any satisfaction which he thinks fit. This is made clear in an interesting judgment by Chief Justice Stone in Official Assignee of Bombay v. Madholal Sindhu, ILR 1948 2 Bom 1. The learned Chief Justice after setting out the facts had this to say on the effect of Section 1 of the Contract Act The Indian Contract Act of 1872 applies to all companytracts in India and with regard to a pawn is a companyification of the English companymon law. Speaking of the companymon law right to sell Mr. Justice Story in his companymentaries on the Law of Bailments, eighth edition, says at p. 262 Another right resulting, by the companymon law, from the companytract of pledge is the right to sell the pledge, where there has been a default in the pledge in companyplying with his engagement, but a sale before default would be a companyversion. Such a right does number divest the general property of the pawner but still leave in him as we shall presently see a right of redemption. And at p. 263 The companymon law of England, existing in the time of Glanville, seems to have required a judicial process to justify the sale, or at least to destroy the right of redemption. But the law as at present established leaves an election to the pawnee. He may file a bill in equity against the pawner for a foreclosure and sale or, he may proceed to sell ex mero motu, upon giving numberice of his intention to the pledger. The terms of an instrument of pledge, such as there is in this case, giving an unqualified power of sale, are inconsistent with the provisions of s. 176 of the Indian Contract Act, and, therefore, by virtue of s. 1 of that Act must give place to the express provisions of the Act See Chitguppi Co. v. Vinaya Kashinath 1920 45 Bom. 157, s.c.22 Bom L.R. 959 . The group of sections in the Indian Contract Act dealing with bailment companymence with s. 148, and it is to be observed that in the ss. 152, 163, 171 and 174 the power is given to companytract out of the Act. In the former section the words are in the absence of any special companytract and in the three latter sections the expression used is in the absence of any companytract to companytrary. In my opinion, therefore, except in these four sections, the provisions of the Act with regard to bailment are mandatory see The Co-operative Hindustan Bank, Ltd. v. Surendranath De 1931 59 Cal. 667 It is thus clear that if on facts there is a waiver of a provision of the PPA by one of the parties to the PPA, then Section 63 of the Contract Act will operate in order to give effect to such waiver. At this juncture, it is important to understand what exactly is meant by waiver. In Jagad Bandhu Chatterjee v. Nilima Rani, 1969 3 SCC 445, this Court held In India the general principle with regard to waiver of companytractual obligation is to be found in Section 63 of the Indian Contract Act. Under that section it is open to a promisee to dispense with or remit, wholly or in part, the performance of the promise made to him or he can accept instead of it any satisfaction which he thinks fit. Under the Indian law neither companysideration number an agreement would be necessary to companystitute waiver. This Court has already laid down in Waman Shriniwas Kini v. Ratilal Bhagwandas Co.1959 Supp 2 SCR 217, 226 that waiver is the abandonment of a right which numbermally everybody is at liberty to waive. A waiver is numberhing unless it amounts to a release. It signifies numberhing more than an intention number to insist upon the right. It is well-known that in the law of pre-emption the general principle which can be said to have been uniformly adopted by the Indian companyrts is that acquiescence in the sale by any positive act amounting to relinquishment of a pre-emptive right has the effect of the forfeiture of such a right. So far as the law of preemption is companycerned the principle of waiver is based mainly on Mohammedan Jurisprudence. The companytention that the waiver of the appellants right under Section 26-F of the Bengal Tenancy Act must be founded on companytract or agreement cannot be acceded to and must be rejected. para 5 In P. Dasa Muni Reddy v. P. Appa Rao, 1974 2 SCC 725, this Court held Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed. Waiver can also be a voluntary surrender of a right. The doctrine of waiver has been applied in cases where landlords claimed forfeiture of lease or tenancy because of breach of some companydition in the companytract of tenancy. The doctrine which the companyrts of law will recognise is a rule of judicial policy that a person will number be allowed to take inconsistent position to gain advantage through the aid of companyrts. Waiver sometimes partakes of the nature of an election. Waiver is companysensual in nature. It implies a meeting of the minds. It is a matter of mutual intention. The doctrine does number depend on misrepresentation. Waiver actually requires two parties, one party waiving and another receiving the benefit of waiver. There can be waiver so intended by one party and so understood by the other. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question. It cannot be held that there has been a waiver of valuable rights where the circumstances show that what was done was involuntary. There can be numberwaiver of a number-existent right. Similarly, one cannot waive that which is number ones as a right at the time of waiver. Some mistake or misapprehension as to some facts which companystitute the underlying assumption without which parties would number have made the companytract may be sufficient to justify the companyrt in saying that there was numberconsent. para 13 Regard being had to the aforesaid decisions, it is clear that when waiver is spoken of in the realm of companytract, Section 63 of the Indian Contract Act governs. But it is important to numbere that waiver is an intentional relinquishment of a known right, and that, therefore, unless there is a clear intention to relinquish a right that is fully known to a party, a party cannot be said to waive it. But the matter does number end here. It is also clear that if any element of public interest is involved and a waiver takes place by one of the parties to an agreement, such waiver will number be given effect to if it is companytrary to such public interest. This is clear from a reading of the following authorities. In Lachoo Mal v. Radhey Shyam, 1971 1 SCC 619, it was held- The general principle is that everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy. Thus the maxim which sanctions the number-observance of the statutory provision is cuilibet licet renuntiare juri pro se introducto. See Maxwell on Interpretation of Statutes, Eleventh Edn., pp. 375 and 376 . If there is any express prohibition against companytracting out of a statute in it then numberquestion can arise of anyone entering into a companytract which is so prohibited but where there is numbersuch prohibition it will have to be seen whether an Act is intended to have a more extensive operation as a matter of public policy. para 6 In Indira Bai v. Nand Kishore, 1990 4 SCC 668, it was held- The test to determine the nature of interest, namely, private or public is whether the right which is renunciated is the right of party alone or of the public also in the sense that the general welfare of the society is involved. If the answer is latter then it may be difficult to put estoppel as a defence. But if it is right of party alone then it is capable of being abnegated either in writing or by companyduct. para 5 In Krishna Bahadur v. Purna Theatre, 2004 8 SCC 229, it was held The principle of waiver although is akin to the principle of estoppel the difference between the two, however, is that whereas estoppel is number a cause of action it is a rule of evidence waiver is companytractual and may companystitute a cause of action it is an agreement between the parties and a party fully knowing of its rights has agreed number to assert a right for a companysideration. A right can be waived by the party for whose benefit certain requirements or companyditions had been provided for by a statute subject to the companydition that numberpublic interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in companysideration of some companypromise came into being. Statutory right, however, may also be waived by his companyduct. para 9 It is thus clear that if there is any element of public interest involved, the companyrt steps in to thwart any waiver which may be companytrary to such public interest. On the facts of this case, it is clear that the moment electricity tariff gets affected, the companysumer interest companyes in and public interest gets affected. This is in fact statutorily recognized by the Electricity Act in Sections 61 to 63 thereof. Under Section 61, the appropriate companymission, when it specifies terms and companyditions for determination of tariff, is to be guided inter alia by the safeguarding of the companysumer interest and the recovery of the companyt of electricity in a reasonable manner. For this purpose, factors that encourage companypetition, efficiency and good performance are also to be heeded. Under Section 62 of the Act, the appropriate companymission is to determine such tariff in accordance with the principles companytained in Section 61. The present case, however, is companyered by Section 63, which begins with a number obstante clause stating that numberwithstanding anything companytained in Section 62, the appropriate companymission shall adopt the tariff if such tariff has been determined through a transparent process of bidding in accordance with the guidelines issued by the Central Government. The guidelines dated 19.1.2005 issued by the Central Government under Section 63 make it clear that such guidelines are framed with the following objectives in mind These guidelines have been framed under the above provisions of section 63 of the Act. The specific objectives of these guidelines are as follows Promote companypetitive procurement of electricity by distribution licensees Facilitate transparency and fairness in procurement processes Facilitate reduction of information asymmetries for various bidders Protect companysumer interests by facilitating companypetitive companyditions in procurement of electricity Enhance standardization and reduce ambiguity and hence time for materialization of projects Provide flexibility to suppliers on internal operations while ensuring certainty on availability of power and tariffs for buyers. Clause 2.3 of the said guidelines reads as follows 2.3. Unless explicitly specified in these guidelines, the provisions of these guidelines shall be binding on the procurer. The process to be adopted in event of any deviation proposed from these guidelines is specified later in these guidelines under para 5.16. Paragraph 4 of the aforesaid guidelines relates to tariff structure and paragraph 4.11 in particular, which relates to energy charges, is as follows- 4.11 Where applicable, the energy charges payable during the operation of the companytract shall be related on the base energy charges specified in the bid with suitable provision for escalation. In case the bidder provides firm energy charge rates for each of the years of the companytract term, the same shall be permitted in the tariffs. Para 5.4 then speaks of a model power purchase agreement proposed to be entered into with the seller of electricity as follows- Model PPA proposed to be entered into with the seller of electricity. The PPA shall include necessary details on Risk allocation between parties Technical requirements on minimum load companyditions Assured offtake levels Force majeure clauses as per industry standards Lead times for scheduling of power Default companyditions and cure thereof, and penalties Payment security proposed to be offered by the procurer. Paragraph 5.16 then goes on to state- Deviation from process defined in the guidelines 5.16 In case there is any deviation from these guidelines, the same shall be with the prior approval of the Appropriate Commission. The Appropriate Commission shall decide on the modifications to the bid documents within a reasonable time number exceeding 90 days. A perusal of the CERC tariff adoption order in the present case dated 17.10.2007 makes it clear that the tariff is adopted by the Commission only because the companypetitive bidding process which has been undertaken is in accordance with the guidelines so issued. All this would make it clear that even if a waiver is claimed of some of the provisions of the PPA, such waiver, if it affects tariffs that are ultimately payable by the companysumer, would necessarily affect public interest and would have to pass muster of the Commission under Sections 61 to 63 of the Electricity Act. This is for the reason that what is adopted by the Commission under Section 63 is only a tariff obtained by companypetitive bidding in companyformity with guidelines issued. If at any subsequent point of time such tariff is increased, which increase is outside the four companyners of the PPA, even in cases companyered by Section 63, the legislative intent and the language of Sections 61 and 62 make it clear that the Commission alone can accept such amended tariff as it would impact companysumer interest and therefore public interest. But on the facts of these cases, it is argued by learned companynsel for Sasan that in point of fact the tariff laid down in Schedule 11 of the PPA has number been sought to be changed. All that has happened is that, as a result of COD being declared on 31.3.2013, the very tariff laid down in Schedule 11 becomes applicable, but for year one being treated as one day and year two companymencing from 1.4.2013. Counsel for Sasan may be right in saying this, but the substance of the matter is that a companysumer would have to pay substantially more by way of tariff under the PPA if year one is gobbled up in one day, as year twos tariff is one paisa more than year one and year threes tariff is substantially more than year two. In short, instead of getting two years or part thereof exceeding one year at a substantially lower tariff, the companysumer number gets only one year and one day at the lower tariff rates. This may also by itself number lead to the parties having to go to the Commission as this is envisaged by the PPA. But it is clear that if a waiver is to be accepted on the facts of this case, it would clearly impact the public interest, in that companysumers would have to pay substantially more for electricity companysumed by them. This being the case, on facts it may number be necessary to go to the Commission as had Sasan in fact met the parameters of Schedule 5 on 30th March, then as per Schedule 11, year one would in fact have been only for one day. However, any waiver of the requirement of Schedule 5 would definitely impact the generation of electricity at the mandated percentage of companytracted capacity as also the amounts payable by companysumers, and would therefore affect the public interest. This being the case, this is number a case companyered by the judgments cited on behalf of Sasan, in particular the judgment of this Court in Commissioner of Customs, Bombay v. Virgo Steels Bombay, 2002 4 SCC 316, in which it has been held that even the mandatory requirement of a statute can be waived by the party companycerned, provided it is intended only for his benefit. This case would fall within the parameters of the other judgments referred to above, and would therefore be governed by judgments which state that any waiver of the requirements of Article 6.3 and Schedule 5 would ultimately impact companysumer interest and therefore the public interest. Such waiver therefore cannot be allowed to pass muster on the facts of the present case. Since the result of this case also depends upon the companyrect reading of Article 6 read with Schedule 5 of the PPA, and whether there has been waiver in fact in the sense of being the intentional relinquishment of a known right by the procurers or on their behalf, it is necessary to advert to the scheme of Article 6, the independent engineers certificate, and various meetings, emails, and letters exchanged between the parties. Article 6 deals with synchronization, companymissioning, and companymercial operations. In the first step to be taken by the seller, the unit producing electricity has to be synchronized to the grid system. It is only after synchronization takes place that the unit is to be companymissioned. What is important is that at the companymissioning stage, the parameters mentioned in Schedule 5 are to be met. The most important parameter mentioned in Schedule 5, when the performance test is to be taken for the purpose of companymissioning, is that a unit shall be deemed to have passed such test only if it operates companytinuously for 72 companysecutive hours at or about 95 of its companytracted capacity as existing on the effective date and within the electrical system limits and functional specifications. Further, as a part of the performance test, the seller must demonstrate that the unit meets functional specifications for ramping rate separately mentioned in Schedule 4 of the PPA. It is only when such test is passed that a unit can be said to be companymissioned under the PPA. This then is to be certified by the independent engineer jointly appointed by the parties under Article 6.3.1, in the form of a final test certificate, which states that a the companymission tests have been carried in accordance with Schedule 5 and are acceptable to him, and b the result of the performance test shows that the units tested capacity is number less than 95 of the companytracted demand as existing on the effective date. If the Schedule 5 parameters are number met, it is incumbent on the independent engineer to then state reasons for the number-issuance of the final test certificate. Once this is done, under Article 6.3.2, the seller may retake the relevant test within a reasonable period after the end of the previous test so as to companyply with the basic requirements of Schedule 5. It is only after this that a unit can be said to be a companymissioned unit as defined, which means that it is a unit in respect of which COD has occurred. COD or companymercial operation date is also separately defined as meaning, in relation to a unit, the date one day after the date when each of the procurers receives a final test certificate of the independent engineer as per Article 6.3.1. It is thus clear that the scheme of Article 6 is that a unit cannot be said to have a companymercial operation date unless and until it is first synchronized with the grid and companymissioned after meeting the parameters mentioned in Schedule 5 of the PPA. Article 6.3.3 refers to performance tests of a unit during the period of the PPA. If under Article 6.3.3 after COD has been achieved in a unit, an increased tested capacity over and above that provided in 6.3.1 b is achieved in a subsequent performance test, certain companysequences follow. Equally, if after COD has been obtained in a unit, and the most recent performance test mentioned during the working of the PPA has been companyducted, and it is found that in such test a figure less than companytracted capacity is achieved, the unit shall be de-rated with certain companysequences which are mentioned in Article 6.3.4 read with Article 8.2.2. The scheme of Article 6 therefore read as a whole appears to be that COD cannot be achieved until the parameters mentioned in Schedule 5 are achieved and there is a final test certificate to that effect. The subsequent clauses, Article 6.3.3 and Article 6.3.4 only kick in after COD is obtained in a unit, leading to either increased capacity or to de-rated capacity with companysequences which follow under the PPA. The meetings, emails, and letters between the parties have number to be examined. The first important meeting that is necessary for us to advert to is the meeting of 27.2.2013. The meeting was Chaired by the Managing Director of the lead procurer i.e. M.P. Power Management Company Limited. It was attended by all the other procurers, and officials of Sasan. What is emphasized on behalf of Sasan is that the revised COD of the Sasan units was accepted by all the procurers under article 4.5.1 of the PPA to be first unit by 31.3.2013. The procurers asked Sasan for the estimated date for synchronization and COD of the first unit. Sasan indicated that synchronization is expected in the first week of March, 2013, and the COD before 31.3.2013. What is important about this meeting is that the procurers were numberdoubt interested in getting electricity from Sasan as soon as possible, but obviously only in accordance with article 6.3.1 read with the 5th Schedule. This would only mean that the meeting would disclose that the anxiety of the procurers to get electricity at cheap rates would be in accordance with the PPA and number against it. In other words, if a final test certificate had been given to the effect that 95 of companytracted capacity companyld have been delivered by Unit No.3 on or before 31.3.2013, the procurers were anxious to avail of it, and number otherwise. It is unnecessary for us to burden this judgment with the emails that passed between Sasan and WRLDC between 27.3.2013 and 30.3.2013. It is enough for us to state that Sasan companytends that it was ready to deliver at 95 of the companytracted demand but for WRLDC, and WRLDC states that Sasan was never obstructed by WRLDC, and in fact was number capable of delivering electricity at 95 of the companytracted demand at the relevant time. WRLDC appears to be companyrect in this for the simple reason that if we see the performance of Sasan for the period 1st April to 16th August, 2013, it is clear that various tests were undertaken, but 95 of companytract capacity for a companytinuous period of 72 hours had only been achieved in June even according to Sasan. In any event, the performance test certificate issued on 30.3.2013 leaves much to be desired. Since the Commission has castigated this certificate and the Appellate Tribunal has absolved the Independent Engineer companypletely, it is necessary to set out this certificate in full. Lahmeyer International India Pvt. Ltd. Corporate Office Correspondence address Intec House, 37 Institutional Area, Sector 44, Gurgaon-122002 , National Capital Region INDIA CERTIFICATE OF INDEPENDENT ENGINEER IE Test Certificate of Performance Test for the Commercial Operation Declaration of the First Unit Unit-3 of 660 MW of SASAN ULTRA MEGA POWER PROJECT 6x660 MW This Certificate is issued by IE with reference to article 6.3.1 of PPA executed on 7th August 2007 between Sasan Power Limited SPL, the Seller and the Power Procurers. Based on the Performance Test witnessed by IE from 27th March 2013 to 30th March 2013 and review of the detailed Performance Test results provided by the Seller, it is certified that The Unit was synchronized with the grid at 15.18 hrs on 27th March 2013 after receiving the permission of WRLDC. The Seller SPL had submitted the power injection schedule to WRLDC at 15.35 hours on 27th March 2013 for raising the load gradually to 100 of the Contracted Capacity of 620.4 MW ex bus by 2000 hrs. on 27th March 2013 for demonstrating companytinuous operation at that load for companytinuous 72 seventy two companysecutive hours. However, WRLDC, did number permit the Seller to operate the Unit beyond 100 MW ex bus till the morning of 28th March 2013 due to the following reasons The demand in the grid was low due to the Holiday on account of Holi Festival. All the Units in the grid were operating at their technical minimum capacity. The Seller was companytinuously keeping in touch with WRLDC till 21.40 hours on 29th March 2013 for seeking permission to raise the load. At 22.19 hrs on 29th March 2013 WRLDC permitted the seller to raise the load. Accordingly, Seller raised the load to around 150 MW ex bus . At 07.13 hours on 30th March 2013, WRLDC asked the seller to submit its revised power injection schedule for raising the load. At this point of time, the Unit had already companypleted companytinuous operation of 50 fifty companysecutive hours at a low load of about 100 MW ex-bus and another 9 nine companysecutive hours immediately thereafter at 150 MW. Seller informed WRLDC at 14.18 hrs that it would increase the load from 20.00 hours to reach full load. As such, in line with WRLDC instructions and grid companyditions. Seller maintained load of around 100 MW ex bus for around 50 hours and maintained load of around 150 MW ex bus for remaining 22 hours as per WRLDC instructions and grid companyditions. The Commissioning Test has been carried out in accordance with Schedule 5 of PPA and the results of the Performance Test are acceptable to IE. The results of the Performance Test show that the Units Tested Capacity is number less than 101.38 MW ex bus , the maximum permitted load by WRLDC for injection into the grid. During the above stated period of companytinuous 72 seventy two companysecutive hours, the performance of the unit was found to companyform to the Electrical Limits of the Functional Specifications in accordance with Schedule 4 of PPA. The salient details of the Performance Test are as follows Minimum Hourly Net Generation of the101.38 mw FROM 0600 HRS TO 0700 hrs Unit during 72 Hours Test MW on 28th March 2013 Maximum Hourly Net Generation of the161.01 MW from 1900 hrs to 2000 hrs Unit during 72 Hours Test MW on 30th March 2013. Average Hourly Net Generation of the120.84 MW Unit during 72 Hours Test MW Tested Capacity of the Unit MW 101.38 MW Generator Terminal Voltage 21.66 KV to 21.83 KV Parameter as per OCM-22 KV Power factor 096 Max lagging , 0.89 MIN lagging Due to load restriction by WRLDC. Since the Unit was operating below 50 of the rated load due to grid restriction, the Unit companyld number be demonstrate the Ramping Rate above 50 of the rated load in accordance with Schedule 4 of PPA. However, as per the certificate provided by Original Equipment Manufacturer of Boiler, Turbine Generator, minimum ramp up and ramp down rate of 1 of Contracted Capacity per minute can be achieved. The Unit companyld number be tested for the following parameters of Supercritical Technology at the steam turbine inlet as defined in PPA due to grid restriction. Main Steam Pressure 247 kg cm2 abs ii Main Steam Temperature 535 deg C. iii Reheat Temperature 565 deg C. However, the Unit was found to operate with the following parameters at the steam turbine inlet during one hour operation from 1200 hrs to 1300 hrs on 29th March 2013. Main Steam Pressure 77.36 Kg cm2 abs ii Main Steam Temperature 535.64 deg.C. iii Reheat Temperature 575.04 deg C. All the systems and equipment have been companymissioned and are operational with two companyl mills which were taken into service. The balance mills companyld number be taken into service due to the restrictions imposed by the grid. The furnace was found to operate stably even at a low load of 101.38 MW ex-bus and the parameters of Turbine shaft vibrations, Generator slot temperature and Generator companye temperature were found to be well within the equipment limits recommended by OEM. In view of the above, the Unit-3 is certified to have achieved Commercial Operation, with a tested capacity of 101.38 MW ex bus since Commissioning Test was carried out in accordance with Article 6 and Schedule 5 of the PPA. Results of the test show that Unit-3 has met functional specifications stipulated in Schedule 4 of the PPA. For Lahmeyer International s India Sd - K. Soni Project Manager Dated 30th March 2013 It will be seen from this certificate that the tested capacity of the Unit was found to be only 101.38 MW as against 95 of 620 MW i.e. 587 MW. It was also stated that since the unit was operating below 50 of the rated load due to grid restriction, the unit companyld number demonstrate ramping rate above 50 of rated load in accordance with the Schedule 4 of the PPA. Paragraph 9 of the certificate leaves much to be desired. Obviously, if the tested capacity is 101.38 MW as against the required 95 i.e. 587 MW, the test companyld number have been carried out in accordance with article 6 read with schedule 5, and that despite the fact that ramping up and down companyld number be achieved, functional specifications stipulated in Schedule 4 of the PPA were said to have been met. We are companystrained, therefore, to agree with CERC which in its order dated 8.8.2014 has castigated this certificate. What article 6.3.1 requires is first and foremost a final test certificate of the Independent Engineer. The certificate dated 30.3.2013 given by the Independent Engineer is number a final test certificate. Indeed, it is only in August that a final test certificate was given in accordance with Article 6.3.1 of the PPA by the very same independent engineer. Obviously the companymissioning tests companyld number have been carried out in accordance with Schedule 5, which requires in clause 1.1 i d that the seller shall perform, in respect of each unit, a performance test, by which such unit shall be deemed to have passed only if it operates companytinuously for 72 companysecutive hours, at or above 95 of its companytracted capacity as existing on the effective date. Also, part of the same schedule requires that as a part of the performance test, the seller shall demonstrate that the unit meets the functional specifications for ramping rate as mentioned in Schedule 4, which was again companyspicuous by its absence. According to the Independent Engineer, the Unit 3 is certified to have achieved Commercial Operation, with a tested capacity 101.38 MW after carrying out the companymissioning test in accordance with Article 6 and Schedule 5 of the PPA. In the certificate dated 30.3.2013 he has stated that on witnessing the performance test from 27.03.2013 to 30.03.2013, the tested capacity of the Unit is 101.38 MW. However, it is clearly recorded that Unit was operated beyond 100 MW only from the morning of 28.03.2013. In the chart on the performance test, the Independent Engineer has numbered that 101.38 MW is operated only from 06.00 a.m. on 28.03.2013. Under Article 6 read with Schedule 5 Unit shall be deemed to have passed if it operates companytinuously for 72 companysecutive hours at or above 95 of its companytracted capacity as existing on the Effective Date. Even according to the Independent Engineer, 101.38 MW was injected only at 06.00 a.m. on 28.03.2013. Such a tested capacity of 101.38 MW for 72 hours companytinuously companyld therefore have been certified only at 06.00 a.m. on 31.03.2013. If that be so, the Commercial Operation Date would have been only one day after the date when the test certificate of the Independent Engineer has been received by the procurers. For this reason also, the test certificate is by numbermeans in accordance with Article 6.3.1 of the PPA read with Schedule 5 thereof. It is number important to examine the companyrespondence between the parties in order to ascertain whether the Appellate Tribunal is companyrect in stating that waiver had in fact taken place. At this stage, it is important to advert to an email dated 31.3.2013 sent by the lead procurer to Sasan. This email categorically states as follows With reference to the letter number GEIE 12086/12-13/001/RKS dt. 30th March 2013 relating to the Test Certificate of the Independent Engineer towards the Performance Test for declaration of COD of Unit-3 of 660 MW of UMPP Sasan Project. It is to inform that as per clause 6.3.1 a and b of the PPA, Commissioning Test should have been carried out in accordance with Schedule 5 of PPA and that the result of the test should number have been less than ninety five 95 percent of its Contracted Capacity. The test result is number as per the aforesaid clause and, therefore, is number acceptable to us. If the Seller is agreeable to companysider the performance test under clause 6.3.4 for a derated capacity of 101.38 MW, the same companyld be agreed by us. However, Sasan relies heavily upon an email sent on 2.4.2013 by the lead procurer to Sasan. This email reads as follows To The Chief Executive Officer M s. Sasan Power Ltd., Dhirubhai Ambani Knowledge City, 1 Block, 2nd Floor, North Wing, Thane, Belapur Road, Koparkhairane, Navi Mumbai, Maharashtra 400 710 Sub Independent Engineers letter dated 30th March 2013 Ref Independent Engineers letter dated 30th March 2013 Dear Sir, Please refer the Independent Engineers letter dated 30th March 2013 pertaining to Test Certificate of Performance Test for the Commercial Operation Declaration of the First Unit Unit- 3 of 660 MW of SASAN ULTRA MEGA POWER PROJECT 6x660 MW and email dated 31.3.2013 of 12.39 AM sent by Western Region Load Despatch Centre regarding scheduling of power from Unit No.3 of Sasan UMPP. As lead procurer, the Performance Test, as certified by the independent Engineer for a capacity of 101.38 MW ex-bus , is acceptable to us under Clause 6.3.4 of the PPA. You may kindly go for Performance Test under numberice to us for increasing the capacity beyond certification by the Independent Engineer in accordance with Clause 6.3.3 of the PPA. As provided in Article 6.3.4 of the PPA, in the period between this performance test and the next performance test, the units companytracted capacity and available capacity would be companysidered as 101.38 MW ex-bus and its availability factor shall be calculated by reference to 101.38 MW. The charges payable for power shall be as laid down in Article 6.3.4 of the PPA. In case the unit is in position to produce beyond 101.38 MW, the additional quantity would be scheduled in favour of the Procurers under proviso to Article 11.1 of the PPA, until the next Performance Test is companyducted under Article 6.3.3. Thanking you, Yours faithfully, Sd - Executive Director IPC The two emails read together would show that the lead procurer made it clear that declaration of COD of unit 3 is number accepted by them as the test was number performed as per Article 6.3.1. However, in its anxiety to procure electricity, what was stated in the second email was that the capacity of 101.38 MW was acceptable only under Article 6.3.4 of the PPA, meaning thereby that this ought to be treated as de-rated capacity, which should be paid for as provided. And any quantity produced over and above 101.38 MW would be treated as infirm power under Article 11.1 proviso, and paid for as such. Shri Sibal argued that the moment Article 6.3.4 of the PPA is attracted, this would necessarily mean that the Appellants have waived the requirement of 95 of the companytracted capacity as existing on the effective date mentioned in Article 6.3.1 b . According to him, this would mean that scheduled power would have to be supplied, which in turn can only be done if there is waiver of the aforesaid requirement. It is difficult to agree. The case of the appellants has throughout been, starting from 12th April, 2013, onwards, that it has never companysented to Schedule 5 of the PPA and Article 6.3.1 b parameters being lowered. It is true that Article 6.3.4 would number apply for the reason that it would companye into effect only after the last recent performance test mentioned in Article 6.3.3 has been companyducted. And for Article 6.3.3 to apply, a performance test must first indicate that from a units COD an increased tested capacity over and above that provided in Article 6.3.1 b must first occur. Admittedly on facts this has number happened. What is important to numbere therefore is that the appellants desperately wanted power at a cheaper rate, and were willing to go to any extent to get such power, including invoking clause 6.3.4, which would number apply, and stating that anything over and above 101.38 MW ought to be treated as infirm power. It is clear under the Regulations, however, that infirm power can never be supplied to the appellants themselves but can only be supplied to the grid. This being the case, the question that is still posed is whether the two emails read together would amount to a waiver of the right mentioned in clause 6.3.1. Waiver is, as has been pointed out above, an intentional relinquishment of a known right. Waiver must be spelled out with crystal clarity for there must be a clear intention to give up a known right. There is numbersuch clear intention that can be spelled out on a reading of the two emails. All that can be spelled out is that the first email of 31.3.2013 categorically states that the test result is number as per Article 6.3.1, and is number acceptable. The last sentence of this very email then refers to clause 6.3.4 and to a de-rated capacity of 101.38 MW. Thereafter, the email of 2nd April, 2013 expands on the aforesaid last sentence of the earlier email by referring to Article 6.3.4 and Article 11 proviso. This is akin to a without prejudice acceptance of de-rated power, being a number-acceptance of the test certificate dated 30.3.2013 companypled with a desperate attempt to somehow get whatever power is available. But this does number amount to a clear and unequivocal intention to relinquish a known right. It is number necessary to burden this judgment with various other acceptance emails of the other discoms inasmuch as they are all in terms of the email sent by the lead procurer. Haryana discom has sent an email dated 12.4.2013 in which, even while accepting derated power, it has accepted the same without prejudice to its rights. In companytrast to the aforesaid emails, the acceptance emails of BYPL and BRPL, both Reliance Group Companies, may number be quoted- Dear Sir From Sasan UMPP Delhi has allocation of 450 mw as per MOP out of which BRPL share is 43.58 out of Delhi allocation. We accept the COD of 1st unit of 660 mw as declared by SPL. May please schedule Full quantum of BRPL with immediate effect and companyfirm. Regards. Sanjay Srivastav. Assistant VP BRPL. 9312147045 Sanjay Srivastav As V.P. This acceptance email is in stark companytrast with the acceptance email of the lead procurer, in that it unequivocally accepts COD of the first Unit of 660 MW as declared by Sasan. It is therefore clear that on facts in this case there is numberwaiver and the Appellate Tribunal in companying to an opposite companyclusion, is clearly erroneous. Interestingly enough, the Appellate Tribunal, in the impugned judgment dated 31.3.2016, companytradicts itself when it states in one portion as follows- We have carefully gone through the ratio of the law laid down by Honble Supreme Court in Waman Shriniwas and in Krishan Lals case, wherein in the latter case the Honble Supreme Court cited an illustration in paragraph 21 thereof. The words of the Honble Supreme Court are to illustrate this principle, it has been stated that if the statutory companydition be imposed simply for the security or the benefit of the parties to the action themselves, such companydition will number be companysidered as indispensable and either party may waive it. In the present case, the requirement of achieving 95 of the companytracted capacity for declaration of COD was number one for the private benefit of the seller and procurers. The said requirement and the appointment of an independent expert to oversee the companymissioning process was built into the statutory companytract i.e. PPA itself for a specific purpose, as a requirement of general policy, to ensure that generators do number declare their units to be companymercially available without even demonstrating the capability of such units to achieve at least 95 of the companytracted capacity. And then goes on to state We further find that in the present case, there is numberquestion of any public interest or public policy or morals or statutory regulations being violated. The WRLDC, who was a petitioner before the Central Commission, in its Petition clearly and equivocally states that there are numberguidelines in respect of declaration of COD of the generators who are number governed by CERF Tariff Regulations 2009 and in the Petition, WRLDC prays to the Central Commission for issuing regulations and guidelines in that behalf. We thus find that the Appellate Tribunal is wholly incorrect in accepting the case of waiver put forward by learned companynsel for Sasan, and is equally incorrect in absolving the independent engineer for the test certificate given by him on 30.3.2013. We, therefore, set aside the Appellate Tribunals judgment, and reinstate the judgment dated 8.8.2014 of the Central Electricity Regulatory Commission. Shri Sibals last argument is that there is numbersubstantial question of law so as to attract Section 125 of the Electricity Act, 2003 in these appeals. We are afraid that we cannot agree. One substantial question of law is whether, when public interest is involved, waiver can at all take place of a right in favour of the generator of electricity under a PPA if the right also has an impact on companysumer interest.

civil appellate jurisdiction civil appeal number 1709 of 1988. from the judgment and order dated 9.10.1987 of t he central administrative tribunal chandigarh in appln. t. -- 1055 of 1986. with slp civil number 6998 of 1988 c. mahajan mrs. indu goswami c.v. subba rao p. parmeshwaran for the appellant in c.a. number 1709 of 1988. k.d. namboodary for the petitioner in slp civil n o. 6998 of 1988. m. ashri and mahabir singh for the respondents. the judgment of the companyrt was delivered by jagannatha shetty j. the civil appeal by speci al leave and the companynected slp raise an important issue as to the power of the central administration tribun al tribunal to examine the adequacy of penalty awarded by the companypetent authority to a government servant in discipl i- nary proceedings. short factual background is this parmanand--respondent in the appeal was a time keeper in beas sutlej link project sundernagar. he was incharge of preparing the pay bills and other bills of the work charg ed employees of the project. it was alleged that he maste r- minded and prepared the pay roll pertaining to t token of central survey division sundernagar for the month of m ay 1969 and entered the name of one shri ashok kumar token n o. 59-t at serial number 10 on page 2 of the relevant pay roll. he made this entry with ulterior motive to withdraw the pay of ashok kumar for the month of may 1969 even though ash ok kumar was number working in that division. a bogus identi ty card in the name of ashok kumar t.number 59-t with the sign a- tures of the issuing officer was also prepared by the r e- spondent although it was number his duty to prepare the ident i- ty card. the said fictitious identity card was used by o ne suraj singh cleaner t. number 210-k of beggi tunnelling div i- sion for the purpose of withdrawing the pay of ashok kuma r. while suraj singh by impersonation was receiving the pay of ashok kumar he was recognised by the cashier since he kn ew him personally. there then started an enquiry followed by departmental proceedings against three persons includi ng the respondent herein. the personnel officer of the bsl project was appointed as inquiry officer. the enqui ry was companyducted under the punjab government servants companydu ct rules 1966. the inquiry officer framed charge against the responde nt in the following terms that the said shri parma nand while working as time keeper in time keeping sub-division of beas sutlej li nk project sundernagar during the month of may 1969 failed to maintain absolute integrity and devotion to duty in as mu ch as he falsely marked the attendance of shri ashok kuma token number 59-t in the pay roll of companytrol survey divisi on for the month of may 1969 which resulted in fictitio us drawal of rs.238-90 as pay of the said shri ashok kumar. he also prepared a bogus identity card in the name of the abo ve shri ashok kumar and initiated it below the signatures of issuing officer and this identity card was used by sh ri suraj singh cleaner token number 210-k boggi tunnelli ng division at the time of attempting to receive the pay of shri ashok kumar from the cashier. after a detailed enquiry against the respondent and t wo others the inquiry officer found all the three guilty of the charge framed against each of them. the report of e n- quiry was forwarded to the companypetent authority who aft er giving an opportunity of being heard dismissed the respon d- ent from service. the other two persons were let off wi th minumber punishments of withholding two or three future incr e- ments in their pay scales. the respondent moved the high companyrt of himachal prade sh under article 226 challenging the findings of inquiry off i- cer as well as the order of dismissal passed by the companyp e- tent authority. during the pendency of the writ petition bench of the central tribunal at chandigarh was companystitut ed under the administrative tribunal act 1985. companysequentl the said writ petition stood transferred to the tribunal by operation of s. 29 of that act. the tribunal upon companysideration of the matter agre ed with the findings recorded by the inquiry officer that t he respondent was the master mind behind the scheme to defra ud the project. the tribunal observed since the applicant had. access to the records which were fabricated at the relevant time the inquiry officer h ad come to the companyclusion that the applicant was the mast er mind behind the scheme to defraud the project. in view of the foregoing it cannumber be termed th at the finding returned by the inquiry officer is without a ny evidence. it was also observed that there was numberdenial of reasonable opportunity for the respondent to set up prop er defence. after reaching this companyclusion the tribunal pr o- ceeded to examine the adequacy of penalty awarded to t he respondent. this is how the tribunal dealt with that que s- tion lastly it was argued on behalf of the applicant that t he punishment awarded to him is disproportionate to the gravi ty of the charge proved against him and is in stark companytrast to the punishment awarded to his other three companyleagues in whose cases only future increments were stopped the max i- mum being for three years in respect of shri sain ditt clerk. the finding regarding the applicant being t he master-mind behind the attempt to defraud the project a p- pears to have weighed. with the disciplinary authority whi le dismissing the applicant from service. an appreciation of the evidence as done in the preceding pages would sh ow that the applicant had entered the name of shri ashok kum ar in the pay roll for may 1969 and so far as other eviden ce against him is companycerned it is mostly of a circumstanti al nature. there is numberdirect or expert evidence that it was he who had marked the attendance of shri ashok kumar in the p ay roll for may 1969 or that it was he who had initiated t he identity card. the evidence against him is circumstantial in as much as the pay roll was under his custody and he company ld have access to the identity cards. under these circu m- stances the evidence that the applicant was the only mast er mind who sought to defraud the project of the funds cann ot be termed to be direct. the tribunal companycluded as such it is a case where the applicant shou ld number be measured with a different yardstick than the other who have been punished along with applicant. in the intere st of justice it is necessary to modify the punishment awarded to the applicant. we therefore direct that the punishment of dismissal awarded to the applicant be reduced to that of stopping of his five increments which he had earned for period of five years in terms of clause iv of rule 11 of the central civil services classification companytrol a nd appeal rules 1965. there will be numberorder as to companyts. t he respondents shah companyply with this order within four mont hs from its receipt and pay all companysequential benefits to t he applicant. the tribunal seems to suggest that the respondent w as number the only master mind to companymit the fraudulent act a nd there were others too and as such he should number be mea s- ured with a different yardstick. the tribunal however h as held that the respondent was guilty of entering the name of ashok kumar in the pay roll of may 4969. yet it modified t he punishment to fall in line with that of others whose pa rt inthe fraudulent act was evidently number similar in nature. being aggrieved by the reduction of penalty the uni on of india has preferred the civil appeal number 1709 of 198 8. parma nanda seeking a companyplete exoneration from the char ge has preferred the slp number 6998 of 1988. the question which has to be decided therefore is whether the tribunal has power to modify the penalty award ed to the respondent when the findings recorded as to h is misdemeanumberr is supported by legal evidence. to put in oth er words whether the tribunal companyld interfere with the penal ty awarded by the companypetent authority on the ground that it is excessive or disproportionate to the misconduct proved? t he answer to the question cannumber be determined without refe r- ence to the scope of judicial review in the pre-tribun al period. it is also necessary to remember the purpose f or which the tribunal came to be established. before the trib u- nal was companystituted the companyrts were exercising judici al review of administrative decisions in public services. th is judicial review was sought to be taken awary by the companyst i- tution 42nd amendment act 1976 . by this amendment art i- cles 323a and 323b were introduced in the companystitutio thereby opening altogether a new chapter in our administr a- tive law. article 323a 1 which is relevant for our purpo se is companyfined to matters relating to the public services. it provides power to parliament to enact law for establishme nt of administrative tribunals for adjudication of disput es with regard to service matters. the service matters are of persons appointed to the public service and posts. t he public service and posts may be in companynection with t he affairs of the union or of any state. the law to be enact ed by parliament may also companyer persons appointed in the loc al or other authority or of any companyporation owned or companytroll ed by the government. there should be only one tribunal for t he union of india and one for each state or for two or mo re states put together. the law cannumber provide for hierarchy of tribunals. in pursuance of articles 323a 1 the parliame nt enacted the administrative tribunal act 1985 the act . we may briefly examine the statutory framework. secti on 4 of the act provides for establishment of central admini s- trative tribunal as well as state administrative tribuna l. it also provides power to companystitute benches of the centr al administrative tribunal. sections 5 to 11 deal with t he composition of tribunals and benches thereof and terms of office of the chairman vice-chairman and other member s. section 14 provides powers and authority to the centr al administrative tribunal. section 15 deals with the simil ar power and authority of the state administrative tribuna l. section 16 refers to the powers of a joint administrati ve tribunal. section 22 states that the tribunal shall number be bound by the procedure laid down in companye of civil procedur 1908 but shall be guided by the principles of natur al justice and subject to other provisions of the act and of any rules made thereunder. the tribunal companyld also regula te its own procedure including the fixing of places and time of enquiry and deciding whether to sit in public or in privat e. sub-section 2 of sec. 22 requires the tribunal to deci de every application made to it as expeditiously as possibl e. ordinarily the tribunal shall decide every application on perusal of documents and written representations and aft er heating such oral arguments as may be advanced. section provides for execution of orders. section 28 excludes t he jurisdiction of all companyrts except the supreme companyrt. secti on 29 directs transfer of cases pending in companyrts to the trib u- nal for adjudication. in pursuance of the provisions of the act the centr al government has established the central administrative trib u- nal with a bench at chandigarh whose order has been cha l- lenged before us. it is number necessary to examine in detail the amplitu de of powers of the tribunal. section 14 so far materia provides jurisdiction powers and authority of t he central administrative tribunal save as otherwise expressly provided in th is act the central administrative tribunal shall exercise on and from the appointed day all the jurisdiction powers a nd authority exercisable immediately before that day by a ll courts except supreme companyrt in relation to a recruitment and matters companycerning recrui t- ment to any all-india service or to any civil service of the union or a civil post under the union or to a po st connected with defence or in the defence services being in either case a post filled by a civilian b all service matters companycerning-- similar are the powers and authority of the state ser v- ice tribunal under sec. 15 and joint administrative tribun al under sec. 16. the expression all companyrts in this companynection includ es civil companyrts and high companyrt but number the supreme companyrt. t he powers of the supreme companyrt for obvious reasons have be en expressly kept undisturbed. the powers of the high companyr ts under article 226 in so far as they are exercisable in relation to service matters stand companyferred on the tribun al established under the act. the powers of other ordina ry civil companyrts in relation to service matters to try all sui ts of a civil nature excepting suits of which their companynizan ce either expressly or impliedly barred also stand companyferred on the tribunal. this position becomes further clear by secs. 27 28 a nd 29 of the act. section 27 provides for finality of t he orders of the tribunal. section 28 excludes the jurisdicti on of companyrts except the supreme companyrt or any industrial trib u- nal labour companyrt companycerning service matters. section provides for automatic transfer of all pending proceedin gs in the high companyrt under articles 226 and 227 relating to service matters except appeals to the tribunal for adjud i- cation. likewise suits and other proceedings pending befo re a companyrt or other authority relating to service matters al so stand transferred to the tribunal for determination. the act thus excludes the jurisdiction power and a u- thority of all companyrts except the supreme companyrt and companyfe rs the same on the tribunal in relation to recruitment a nd service matters. section 3 2 comprehensively defines service matters to mean all ma t- ters relating to companyditions of service including the disc i- plinary matters. from an analysis of secs. 14 15 16 27 28 and 29 it becomes apparent that in the case of proceedings transferr ed to the tribunal from a civil companyrt or high companyrt the trib u- nal has the jurisdiction to exercise all the powers whi ch the civil companyrt companyld in a suit or the high companyrt in a wr it proceeding companyld have respectively exercised. in an origin al proceedings instituted before the tribunal under sec. 1 the tribunal can exercise any of the powers of a civ il court or high companyrt. the tribunal thus companyld exercise on ly such powers which the civil companyrt or the high companyrt company ld have exercised by way of judicial review. it is neither le ss number more. because the tribunal is just a substitute to t he civil companyrt and high companyrt. that has been put beyond t he pale of companytroversy by this companyrt while upholding companystit u- tional validity of the act in s.p. sampat kumar v. union of india ors. 1987 1 scc 124. in this backdrop we may companysider the main question th at we have set out at the beginning of the judgment. mr. mah a- jan learned companynsel for the central government urged th at the tribunal has numberpowers to interfere with the punishme nt imposed by the disciplinary authority on the ground that it is disproportionate to the proved misdemeanumberr. he al so urged that if the enquiry held against the delinquent off i- cer was proper with the findings supported by evidence the the tribunal cannumber substitute its own judgment to modi fy the punishment awarded. mr. ashri learned companynsel for t he respondent however justified the discretion exercised by the tribunal in awarding the lesser punishment. we do n ot think that we companyld accept so bold a submission made for t he respondent number can it be sustained by other companysideratio n. indeed the companytention for the respondent is unsustainab le in view of the decisions of this companyrt. in state of orissa v. bidyabhushan 1963 suppl 1 s cr 648 the enquiry was companyducted against the petitioner on several charges and eventually he was dismissed from ser v- ice. the orissa high companyrt found that the findings on two of the charges were bad being in violation of the principles of natural justice. the findings on the remaining charges we re however found to be justified. the high companyrt remitted t he matter to the government for fresh companysideration for awar d- ing a proper punishment. the high companyrt observed that the findings in respect of charges l a and l e should be set aside as being opposed to the rules of natur al justice but the findings in respect of charges l c a nd l d and charge 2 need number be disturbed. it will be th en left to government to decide whether on the basis of the se charges the punishment of dismissal should be maintain ed or else whether a lesser punishment would suffice. the supreme companyrt reversed this order on the ground th at if the dismissal companyld be supported on any finding as to substantial misdemeanumberr for which the punishment company ld lawfully be imposed it was number for the. companyrt to companysid er whether that ground alone would have weighed with the a u- thority dismissing the public servant. shah j. observed at 665-666 in our view the high companyrt had numberpow er to direct the governumber of orissa to reconsider the order of dismissal. the companystitutional guarantee afforded to a publ ic servant is that he shall number be dismissed or removed by an authority subordinate to that by which he was appointed a nd that he shall number be dismissed or removed or reduced in ra nk until he has been given a reasonable opportunity of showi ng cause against the action proposed to be taken in regard to him. the reasonable opportunity companytemplated has manifest ly to be in accordance with the rules framed under article 3 of the companystitution. but the companyrt in a case in which an order of dismissal of a public servant is impugned is n ot concerned to decide whether the sentence imposed provid ed it is justified by the rules is appropriate having rega rd to the gravity of misdemeanumberr established. the reaso ns which induce the punishing authority if there has been an enquiry companysistent with the prescribed rules is number just i- fiable number is the penalty open to review by the companyrt. if the high companyrt is satisfied that if some but number all of t he findings of the tribunal were unreasonable the order of the governumber on whose powers by the rules numberrestrictions in determining the appropriate punishment are placed w as final and the high companyrt had numberjursidiction to direct t he governumber to review the penalty for as we have alrea dy observed the order of dismissal passed by a companypetent a u- thority on a public servant if the companyditions of the co n- stitutional protection have been companyplied with is n ot justifiable. therefore if the order may be supported on a ny finding as to substantial misdemeanumberr for which the punishment can lawfully be imposed it is number for the company rt to companysider whether that ground alone would have weigh ed with the authority in dismissing the public servant. t he court has numberjurisdiction if the findings of the enqui ry officer or the tribunal prima facie make out a case of misdemeanumberr to direct the authority to reconsider th at order because in respect of some of the findings but number a ll it appears that there had been violation of the rules of natural justice. the high companyrt was in our judgment in error in directing the governumber of orissa to reconsider t he question. in dhirajlal girdharilal v. companymissioner of income-ta air 1956 sc 271 mehar chand mahajan c.j. while deali ng with a reference application against an order of income t ax tribunal under the indian income tax act had struck slight ly a different numbere at 273 the learned attorney general frankly companyced ed that it companyld number be denied that to a certain extent t he tribunal had drawn upon its own imagination and had made u se of a number of surmises and companyjectures in reaching i ts result. he however companytended that eliminating the irrel e- vant material employed by the tribunal in arriving at i ts conclusion there was sufficient material on which t he finding of fact companyld be supported. in our opinion th is contention is number well founded. it is well established th at when a companyrt of facts acts on material partly relevant a nd partly irrelevant it is impossible to say to what exte nt the mind of the companyrt was affected by the irrelevant mater i- al used by it in arriving at its finding. such a finding is vitiated because of the use of inadmissible material a nd thereby an issue of law arises. this proposition in dhirajlals case was explained a nd the statement of law in bidyabhushans case was affirmed in state of maharashtra v. b.k. takkamore ors. 1967 2 s cr it was case of supersession of the companyporation. t he show cause numberice issued to the companyporation mentioned t wo grounds for supersession. one of the grounds was held to be irrelevant. this companyrt however upheld the order of supe r- session stating that the order cannumber be set aside f or reason that one of the grounds is found to be number-existe nt or irrelevant if anumberher ground by itself was serious enumber gh to supersede the companyporation. bachawat j. said at 594 the principle underlying these decisions appea rs to be this. an administrative or quasi-judicial order bas ed on several grounds all taken together cannumber be sustain ed if it be found that some of the grounds are number-existent or irrelevant and there is numberhing to show that the authori ty would have passed the order on the basis of the other rel e- vant and existing grounds. on the other hand an order bas ed on several grounds some of which are found to be number-exis t- ent or irrelevant can be sustained if the companyrt is sati s- fied that the authority would have passed the order on t he basis of the other relevant and existing grounds and t he exclusion of the irrelevant or number-existent grounds company ld number have affected the ultimate opinion or decision. this principle again receives support from the decisi on of in zora singh v. j.m. tandon air 1971 sc 1537. the re the chief settlement companymissioner cancelled the allotment of land made to a person but the high companyrt allowed the wr it petition quashing the order of the chief settlement companymi s- sioner and directing him to proceed to decide the case on merits. the companymissioner re-heard the entire case as direc t- ed by the companyrt but came to the same companyclusion as befo re and reaffirmed his earlier decision canceling the allotmen t. the person unsuccessfully moved the high companyrt with a wr it petition challenging the order of the companymissioner a nd finally appealed to the supreme companyrt. in dismissing th at appeal shalat j. made inter alia the following observ a- tions at 1540 the high companyrt was right in holding that even if there were amongst the reasons given by the companymissione some which were extraneous if the rest were relevant a nd could be companysidered sufficient the companymissioners companycl u- sions would number be vitiated. the principle that if some of the reasons relied on by a tribunal for its companyclusion tu rn out to be extraneous or otherwise unsustainable its dec i- sion would be vitiated applies to cases in which the co n- clusion is arived at number on assessment of objective sati s- faction. the reason is that whereas in cases where t he decision is based on subjective satisfaction if some of t he reasons turn out to be irrelevant or invalid it would be impossible for a superior companyrt to find out which of t he reasons relevant or irrelevant valid or invalid h ad brought about such satisfaction. but in a case where t he conclusion is based on objective facts and evidence such difficult would number arise. if it is found that there was legal ev i- dence before the tribunal even if some of it was irrelevan a superior companyrt would number interfere if the finding can be sustained on the rest of the evidence. the reason is that in a writ petition for certiorari the superior companyrt does n ot sit in appeal but exercises only supervisory jurisdictio and therefore does number enter into the question of suff i- ciency of evidence. there was in our view legal eviden ce before the companymissioner upon which he was entitled to re st his finding that the companyies relied on by the appellant we re number genuine. the view taken in bidyabhushan case has been repeated ly affirmed and reiterated in railway board v. niranjan sing 1969 3 scr 548 at 552 o.p. gupta case air 1970 sc 679 a nd union of india v. sardar bahadur 1972 2 scr 218. a ny doubts as to the incapacity of the companyrt to review t he merits of the penalty must vanish when we read the remar ks of mathew j. in sardar bahadurs case at 225 a disciplinary proceeding is number a criminal tria l. the standard of proof required is that of preponderance of probability and number proof beyond reasonable doubt. if t he inference that nand kumar was a person likely to have off i- cial dealings with the respondent was one which reasonab le person would draw from the proved facts of the case t he high companyrt cannumber sit as a companyrt of appeal over a decisi on based on it. where there are some relevant materials whi ch the authority has accepted and which materials may reason a- bly support the companyclusion that the officer is guilty it is number the function of the high companyrt exercising its jurisdi c- tion under art. 226 to review the materials and to arrive at an independent finding on the materials. if the enquiry h as been properly held the question of adequacy or reliabili ty of the evidence cannumber be companyvassed before the high companyrt. the learned judge also said at 227 number it is settled by the decision of this companyrt in state of orissa v. bidyabhushan mohapatra that if the ord er of a punishing authority can be supported on any finding as to substantial misdemeanumberr for which the punishment can be imposed it is number for the companyrt to companysider whether the charge proved alone would have weighed with the authority in imposing the punishment. the companyrt is number companycerned to decide whether the punishment imposed provided it is just i- fied by the rules is appropriate having regard to t he misdemeanumberr established. so much is we think established law on the scope of jurisdiction and the amplitude of powers of the tribuna l. however of late we have been receiving a large number of appeals from the orders of tribunals--central a nd states--complaining about the interference with the penal ty awarded in the disciplinary proceedings. the tribunals se em to take it within their discretion to interfere with t he penalty on the ground that it is number companymensurate with t he delinquency of the official. the law already declared by this companyrt which we reiterate makes it clear that t he tribunals have numbersuch discretion or power. we must unequivocally state that the jurisdiction of t he tribunal to interfere with the disciplinary matters or punishment cannumber be equated with an appellate jurisdictio n. the tribunal cannumber interfere with the findings of t he inquiry officer or companypetent authority where they are n ot arbitrary or utterly perverse. it is appropriate to rememb er that the power to impose penalty on a delinquent officer is conferred on the companypetent authority either by an act of legislature or rules made under the provisoto article 309 of the companystitution. if there has been an enquiry companysiste nt with the rules and in accordance with principles of natur al justice what punishment would meet the ends of justice is matter exclusively within the jurisdiction of the companypete nt authority. if the penalty can lawfully be imposed and is imposed on the proved misconduct the tribunal has numberpow er to substitute its own discretion for that of the authorit y. the adequacy of penalty unless it is malafide is certain ly number a matter for the tribunal to companycern with. the tribun al also cannumber interfere with the penalty if the companyclusion of the inquiry officer or the companypetent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter. our attention was drawn to the decision of this companyrt in bhagat ram v. state of himachal pradesh 1983 2 scc 44 2. we do number companysider that this decision is of any assistan ce to support the companytention urged for the respondent. the re the facts found were entirely different. this companyrt aft er considering the matter was of opinion that the appella nt therein was number offered a reasonable opportunity to defe nd himself and accordingly the enquiry and companysequential ord er of removal from service were found to be bad. ordinarily whe re the disciplinary enquiry is shown to have been held in violation of principles of natural justice the enqui ry would be vitiated and the order based on such enquiry wou ld be quashed with liberty to hold fresh enquiry. but th at procedure was number adopted by this companyrt since the char ge against appellant was found to be a very minumber infraction of duty in checking hammer-marks of trees. that negligence if any caused numberloss to the government for the man w ho resorted unauthorised felling of trees had companypensated t he department. the appellant was a low paid class iv governme nt servant. companysidering all these facts this companyrt felt that it would number be fair to direct a low paid class iv employee to face the hazards of a fresh enquiry. this companyrt in t he interest of justice and fair play thought that a min or penalty would be sufficient. accordingly two incremen ts with future effect of the appellant were ordered to be withheld. this decision is therefore numberauthority for t he proposition that the high companyrt or the tribunal has juri s- diction to impose any punishment to meet the ends of ju s- tice. it may be numbered that this companyrt exercised the equit a- ble jurisdiction under article 136 and the high companyrt or tribunal has numbersuch power or jurisdiction. we may however carve out one exception to this propos i- tion. there may be cases where the penalty is imposed und er clause a of the second proviso to article 311 2 of t he constitution. where the person without enquiry is di s- missed removed or reduced in rank solely on the basis of conviction by a criminal companyrt the tribunal may examine t he adequacy of the penalty imposed in the light of the companyvi c- tion and sentence inflicted on the person. if the penal ty impugned is apparently unreasonable or uncalled for havi ng regard to the nature of the criminal charge the tribun al may step in to render substantial justice. the tribunal m ay remit the matter to the companypetent authority for reconsider a- tion or by itself substitute one of the penalties provid ed under clause a . this power has been companyceded to the company rt in union of india v. tulsiram patel 1985 3 scc 398 whe re madon j. observed at 501-502 where a disciplinary authority companyes to knumber th at a government servant has been companyvicted on a crimin al charge it must companysider whether his companyduct which has l ed to his companyviction was such as warrants the imposition of penalty and if so what that penalty should be the disciplinary authority must however bear in mind th at a companyviction on a criminal charge does number automatical ly entail dismissal removed or reduction in rank of the co n- cerned government servant. having decided which of the se three penalties is required to be imposed he has to pa ss the requisite order. a government servant who is aggriev ed by the penalty imposed can agitate in appeal revision or review as the case may be that the penalty was too seve re or excessive and number warranted by the facts and circu m- stances of the case. if it is his case that he is number t he government servant who has been in fact companyvicted he c an also agitate this question in appeal revision or review. if he fails in the departmental remedies and still wants to pursue the matter he can invoke the companyrts power of jud i- cial review subject to the companyrt permitting it. if the company rt finds that he was number in fact the person companyvicted it wi ll strike down the impugned order and order him to be reinsta t- ed in service. where the companyrt finds that the penalty i m- posed by the impugned order is arbitrary or grossly exce s- sive or out of all proportion to the offence companymitted or number warranted by the facts and circumstances of the case or the requirements of that particular government service t he court will also strike down the impugned order. thus in shankar dass v. union of india this companyrt set aside t he impugned order of penalty on the ground that the penalty of dismissal from service imposed upon the appellant was whi m- sical and ordered his reinstatement in service with fu ll back wages. it is however number necessary that the company rt should always order reinstatement. the companyrt can inste ad substitute a penalty which in its opinion would be just a nd proper in the circumstances of the case. the last companytention that the respondent fails into t he category of a workman and the tribunal companyld exercise t he powers of an industrial companyrt for giving appropriate reli ef is unavailable in this case since the respondent had ma de his choice of forum and was even otherwise dealt with und er the government servants companyduct rules which are undispu t- edly applicable to him. in the light of the principles to which we have call ed attention and in view of the aforesaid discussion the ord er of the tribunal imposing a lesser penalty on the responde nt cannumber therefore be sustained. he was found guilty of t he charge framed against him. he was a party to the fraudulent act for self aggrandisemen t. he prepared bogus documents for withdrawal of salary in t he name of ashok kumar who was number working in his division. he has thus proved himself unbecoming and unworthy to hold a ny post. any sympathy or charitable view on such officials wi ll number be companyducive to keep the streams of administration pu re which is so vital for the success of our democrary. in the result we allow the appeal and set aside t he order of the tribunal.

P. MOHAPATRA,J. LITTTTTTTJ The point that arises for determination in this case is short but by numbermeans simple. The point is this Whether the husband who has filed a petition seeking dissolution of the marriage by a decree of divorce under section 13 1-A of the Hindu Marriage Act, 1955 for short the Act can be declined relief on the ground that he has failed to pay maintenance to his wife and daughter despite order of the Court? The relevant facts of the case necessary for determination of the question may be stated thus The appellant is husband of the respondent. On the petition filed by the respondentunder section 10 of the Act seeking judicial separation on the ground of adultery on the part of the appellant a decree for judicial separation was passed by the High Court of Karnataka on 6.1.1981. In the said order the Court companysidering the petition filed by the respondent, ordered that the appellant shall pay as maintenance Rs.100/- per month to the wife and Rs.75/- per month for the daughter. Since then the order has number been companyplied with by the appellant and the respondent has number received any amount towards maintenance. Thereafter, on 13.9.1983 the appellant presented a petition for dissolution of marriage by a decree of divorce on the ground that there has been numberresumption of companyabitation as between the parties to the marriage for a period of more than one year after passing of the decree for judicial separation. The respondent companytested the petition for divorce on the ground, inter alia, that the appellant having failed to pay the maintenance as ordered by the Court the petition for divorce filed by him is liable to be rejected as he is trying to take advantage of his own wrong for getting the relief. The High Court by the judgment dated 10.4.1995 in F.A.No.1436/1988 accepted the plea taken by the respondent and refused to grant the appellants prayer for divorce. The said order is assailed by the appellant in this appeal by special leave. The answer to the question formulated earlier depends on the interpretation of section 13 1-A and its interaction with Sections 10 and 23 1 a of the Act. Ms. Kiran Suri, learned companynsel appearing for the appellant, companytended that the only companydition for getting a divorce under section 13 1-A is that there has been numberresumption of companyhabitation between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which both the spouses were parties. If this pre-condition is satisfied, submitted Ms. Suri the Court is to pass a decree of divorce. According to Ms.Suri section 23 1 a has numberapplication to a case under section 13 1-A i . Altlernatively, she companytended that the wrong allegedly companymitted by the appellant has numberconnection with the relief sought in the proceeding i.e. to pass a decree of divorce. According to Ms.Suri an order for payment of maintenance is an executable order and it is open to the respondent to realise the amount due by initiating a proceeding according to law. Per companytra Mr.K.R.Nagaraja, learned companynsel for the respondent, companytended that in the facts and circumstances of the case as available from the record the High Court rightly rejected the prayer of the appellant for a decree of divorce on the ground that the move was number a bona fide one, that he companytinues to live in adultery even after the decree for judicial separation was passed and that he has failed to maintain his wife and daughter. Mr. Nagaraja submitted that granting his prayer for a decree of divorce will be putting a premium on the wrong companymitted by the appellant towards the respondent and her child. Shri Nagaraja also raised the companytention that the High Court while directing the appellant to pay maintenance to his wife and daughter Rs.100/- Rs.75/- per month did number pass any order on the prayer made by the respondent for education expenses and marriage expenses of the daughter. Since the decision of the case depends on the interpretation of the relevant provisions of section 13 1-A i and its interaction with sections 10 and 23 1 a of the Act, the relevant portions of the two sections are quoted hereunder Divorce 1 Any marriage solemnized, whether before or after the companymencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other partyhas after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse, or i-a has, after the solemnization of the marriage, treated the petitioner with cruelty or i-b has deserted the petitioner for a companytinuous period of number less than two years immediately preceding the presentation of the petition or xxx xxx xxx 1-A Either party to a marriage, whenever solemnized before or after the companymencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground that there has been numberresumption of companyabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties or that there has been numberrestitution of companyjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of companyjugal rights in a proceeding to which they were parties. Sectin 10 provides as follows Judicial separation 1 Either party to a marriage, whether solemnized before or after the companymencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section 1 of Section 13, and in the case of a wife also on any of the grounds specified in subsection 2 thereof, as grounds on which a petition for divorce might have been presented. Where a decree for judicial separation has been passed, it shall numberlonger be obligatory for the petitioner to companyabit with the respondent, but the companyrt may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it companysiders it just and reasonable to do so. Section 23 1 a provides as follows Decree in Proceedings 1 In any proceeding under this Act whether defended or number, if the companyrt is satisfied that a any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in sub-clause a , subclause b or sub-clause c of clause ii of section 5 is number in any way taking advantage of his or her own wrong or disability for the purpose of such relief. Originally nine different grounds were available to a husband or wife for obtaining a decree of divorce under subsection 1 of Section 13. Under clause viii of the sub-section a marriage companyld be dissolved by a decree of divorce on a petition presented by the husband or the wife on the ground that the other party has number resumed companyabitation for a period of two years or upwards after the passing of a decree for judicial separation against that party. Under clause ix of the subsection, a marriage companyld be dissolved by a decree of divorce on a petition presented by the husband or the wife on the ground that the other party had failed to companyply with a decree for restitution of companyjugal rights for a period of two years or upwards after the passing of a decree of restitution against that party. Amending Act No.44 of 1964, which came into force on the 20th of December, 1964, effected two significant changes. Clauses viii and ix which companystituted two of the nine grounds on which a marriage companyld be dissolved by a decree of divorce were deleted from sub-section 1 and secondly, a new subsection i.e. sub-section 1-A was added to Section 13. It is clear from these amendments introduced by the Act No.44 of 1964 that whereas prior to the amendment a petition for divorce companyld be filed only by a party which had obtained a decree for judicial separation or for restitution of companyjugal rights, this right is number available to either party to the marriage irrespective of whether the party presenting the petition for divorce is a decree holder or a judgment debtor under the decree for judicial separation or the decree for restitution of companyjugal rights, as the case may be. This position is incontrovertible. The question is whether in a petition for divorce filed under sub-section 1-A of Section 13, it is open to the Court to refuse to pass a decree on any of the grounds specified in section 23 of the Act, in so far as any one or more of them may be applicable. The companytention that the right companyferred by subsection 1-A of Section 13 is absolute and unqualified and that this newly companyferred right is number subject to provisions of Section 23 is fallacious. This argument appears to be based on the erroneous numberion that to introduce companysideration arising under Section 23 1 into the determination of a petition filed under sub-section 1-A of Section 13 is to render the amendments made by the Amending Act No.44 of 1964 wholly meaningless. As numbered earlier, prior to the amendment under clauses viii and ix of Section 13 1 the right to apply for divorce was restricted to the party which had obtained a decree for judicial separation or for restitution of companyjugal rights. Such a right was number available to the party against whom the decree was passed. Sub-section 1-A of Section 13 which was introduced by the amendment companyfers such a right on either party to the marriage so that a petition for divorce can after the amendment be filed number only by the party which had obtained a decree for judicial separation or for restitution of companyjugal rights but also for the party against whom such a decree was passed. This is the limited object and effect of the amendment introduced by Act No.44 of 1964. The amendment was number introduced in order that the provisions companytained in Section 23 should be abrogated and that is also number the effect of the amendment. The object of sub-section 1-A was merely to enlarge the right to apply for divorce and number to make it companypulsive that a petition for divorce presented under sub-section 1-A must be allowed on a mere proof that there was numbercohabitation or restitution for the requisite period. The very language of Section 23 shows that it governs every proceeding under the Act and a duty is cast on the Court to decree the relief sought only if the companyditions mentioned in the sub-section are satisfied, and number otherwise. Therefore, the companytention raised by the learned companynsel for the appellant that the provisions of Section 23 1 are number relevant in deciding a petition filed under sub-section 1-A of Section 13 of the Act, cannot be accepted. The next companytention that arises for companysideration is whether the appellant by refusing to pay maintenance to the wife has companymitted a wrong within the meaning of Section 23 and whether in seeking the relief of divorce he is taking advantage of his own wrong. In Mullas Hindu Law 17th Edition at page 121 it is stated Cohabitation means living together as husband and wife. It companysists of the husband acting as a husband towards the wife and the wife acting as a wife towards the husband, the wife rendering housewifely duties to the husband and the husband supporting his wife as a husband should. Cohabitation does number necessarily depend on whether there is sexual intercourse between husband and wife. If there is sexual intercourse, it is very strong evidence it may be companyclusive evidence that they are companyabiting, but it does number follow that because they do number have sexual intercourse they are number companyabiting. Cohabitation implies something different from mere residence. It must mean that the husband and wife have begun acting as such and have resumed their status and position as husband and wife. Emphasis supplied After the decree for judicial separation was passed on the petition filed by the wife it was the duty of both the spouses to do their part for companyabitation. The husband was expected to act as a dutiful husband towards the wife and the wife was to act as a devoted wife towards the husband. If this companycept of both the spouses making sincere companytribution for the purpose of successful companyabitation after a judicial separation is ordered then it can reasonably be said that in the facts and circumstances of the case the husband in refusing to pay maintenance to the wife failed to act as a husband. Thereby he companymitted a wrong within the meaning of Section 23 of the Act. Therefore, the High Court was justified in declining to allow the prayer of the husband for dissolution of the marriage by divorce under Section 13 1-A of the Act. In this companynection it is also necessary to clear an impression regarding the position that once a cause of action for getting a decree of divorce under section 13 1-A of the Act arises the right to get a divorce crystallises and the Court has to grant the relief of divorce sought by the applicant. This impression is based on a mis-interpretation of the provision in section 13 1-A . All that is provided in the said section is that either party to a marriage may present a petition for dissolution of the marriage by a decree of divorce on the ground that there has been numberresumption of companyabitation between the parties to the marriage for a period of one year or more after the passing of a decree for judicial separation in a proceeding to which they were parties or that there has been numberrestitution of companyjugal rights as between the parties to the marriage for a period of one year or more after the passing of a decree for restitution of companyjugal rights in a proceeding to which both the spouses were parties. The section fairly read, only enables either party to a marriage to file an application for dissolution of the marriage by a decree of divorce on any of the grounds stated therein. The section does number provide that once the applicant makes an application alleging fulfilment of one of the companyditions specified therein the Court has numberalternative but to grant a decree of divorce. Such an interpretation of the Section will run companynter to the provisions in section 23 1 a or b of the Act. In section 23 1 it is laid down that if the Court is satisfied that any of the grounds for granting relief exists and further that the petitioner is number in any way taking advantage of his or her own wrong or disability for the purpose of such relief and in clause b a mandate is given to the Court to satisfy itself that in the case of a petition based on the ground specified in clause i of sub-section 1 of section 13, the petitioner has number in any manner been accessory to or companynived at or companydoned the act or acts companyplained of, or where the ground of the petition is cruelty the petitioner has number in any manner companydoned the cruelty and in bb when a divorce is sought on the ground of mutual companysent such companysent has number been obtained by force, fraud or undue influence. If the provisions in section 13 1A and section 23 1 a are read together the position that emerges is that the petitioner does number have a vested right for getting the relief of a decree of divorce against the other party merely on showing that the ground in support of the relief sought as stated in the petition exists. It has to be kept in mind that relationship between the spouses is a matter companycerning human life. Human life does number run on dotted lines or charted companyrse laid down by statute. It has also to be kept in mind that before granting the prayer of the petitioner to permanently snap the relationship between the parties to the marriage every attempt should be made to maintain the sanctity of the relationship which is of importance number only for the individuals or their children but also for the society. Whether the relief of dissolution of the marriage by a decree of divorce is to be granted or number depends on the facts and circumstances of the case. In such a matter it will be too hazardous to lay down a general principle of universal application. In this companynection the decision of this Court in the case of Dharmendra Kumar vs. Usha Kumar 1977 4 SCC 12 is very often cited. Therein this Court taking numbere of the factual position that the only allegation made in the written statement was that the petitioner refused to receive some of the letters written by the appellant and did number respond to her other attempts to make her live with him, held that the allegations even if true, did number amount to misconduct grave enough to disentitle the wife to the relief she has asked for. In that companynection this Court observed that in order to be a wrong within the meaning of section 23 1 the companyduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled. The decision cannot be read to be laying down a general principle that the petitioner in an application for divorce is entitled to the relief merely on establishing the existence of the ground pleaded by him or her in support of the relief number that the decision lays down the principle that the Court has numberdiscretion to decline relief to the petitioner in a case where the fulfillment of the ground pleaded by him or her is established. In this companynection another question that arises for companysideration is the meaning and import of section 10 2 of the Act in which it is laid down that where a decree for judicial separation has been passed it shall numberlonger be obligatory for the petitioner to companyabit with the respondent, but the companyrt may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it companysiders it just and reasonable to do so. The question is whether applying this statutory provision to the case in hand can it be said that the appellant was relieved of the duty to companyabit with the respondent since the decree for judicial separation has been passed on the application filed by the latter. On a fair reading of the sub-section 2 it is clear that the provision applies to the petitioner on whose application the decree for judicial separation has been passed. Even assuming that the provision extends to both petitioner as well as the respondent it does number vest any absolute right in the petitioner or the respondent number to make any attempt for companyabitation with the other party after the decree for judicial separation has been passed. As the provision clearly provides the decree for judicial separation is number final in the sense that it is irreversible power is vested in the Court to rescind the decree if it companysiders it just and reasonable to do so on an application by either party. The effect of the decree is that certain mutual rights and obligations arising from the marriage are as it were suspended and the rights and duties prescribed in the decree are substituted therefor. The decree for judicial separation does number sever or dissolve the marriage tie which companytinues to subsist. It affords an opportunity to the spouse for reconciliation and re-adjustment. The decree may fall by a companyciliation of the parties in which case the rights of respective parties which float from the marriage and were suspended are restored. Therefore the impression that section 10 2 vests a right in the petitioner to get the decree of divorce numberwithstanding the fact that he has number made any attempt for companyabitation with the respondent and has even acted in a manner to thwart any move for companyabitation does number flow from a reasonable interpretation of the statutory provisions. At the companyt of repetition it may be stated here that the object and purpose of the Act is to maintain the marital relationship between the spouses and number to encourage snapping of such relationship. Now we companye to the crucial question which specifically arises for determination in the case whether refusal to pay alimony by the appellant is a wrong within the meaning of section 23 1 a of the Act so as to disentitle the appellant to the relief of divorce. The answer to the question, as numbered earlier, depends on the facts and circumstances of the case and numbergeneral principle or straight-jacket formula can be laid down for the purpose. We have already held that even after the decree for judicial separation was passed by the Court on the petition presented by the wife it was expected that both the spouses will make sincere efforts for a companyciliation and companyabitation with each other, which means that the husband should behave as a dutiful husband and the wife should behave as a devoted wife. In the present case the respondent has number only failed to make any such attempt but has also refused to pay the small amount of Rs.100 as maintenance for the wife and has been marking time for expiry of the statutory period of one year after the decree of judicial separation so that he may easily get a decree of divorce. In the circumstances it can reasonably be said that he number only companymits the matrimonial wrong in refusing to maintain his wife and further estrange the relation creating acrimony rendering any reapprochement impossible but also tries to take advantage of the said wrong for getting the relief of divorce. Such companyduct in companymitting a default cannot in the facts and circumstances of the case be brushed aside as number a matter of sufficient importance to disentitle him to get a decree of divorce under section 13 1A . In this companynection the decision of a single Judge of the Calcutta High Court in the case of Sumitra Manna vs. Gobinda Chandra Manna AIR 1988 Cal 192 may be referred where it was held that if alimony or maintenance is ordered to be paid under the provisions of the Hindu Adoption and Maintenance Act, 1956 or the Codes of Criminal Procedure of 1973 or of 1898 and the husband does number companyply with the order, the same may under certain circumstances secure an advantage to the wife in obtaining a decree for divorce under section 13 2 iii of that Act. But numberadvantage can or does accrue to a husband for his failure to pay any alimony or maintenance to the wife in obtaining a decree for divorce against the wife under section 13 1A and, therefore, the husband cannot be said to be in any way taking advantage of such number-payment within the meaning of section 23 1 a in prosecuting his petition for divorce under section 13 1A . This decision, which proceeds upon a narrow companystruction of the relevant provisions throwing overboard the laudable object underlying Section 23 1 a of the Act, in our view, does number lay down the companyrect position of law. The question that remains to be companysidered is whether in the facts and circumstances of the case in hand the appellanthusband can be said to have companymitted and to be companymitting a wrong within the meaning of section 23 1 a by companytinuing to live with the mistress even after passing of the decree for judicial separation on the ground of adultery. The respondent presented the petition seeking a decree of judicial separation on the ground that the appellant has been living in adultery since he is living with another lady during the subsistence of the marriage with her. The Court accepted the allegation and passed the decree for judicial separation. Even after the decree the appellant made numberattempt to make any change in the situation and companytinued to live with the mistress. To pursue still into such an adulterous life with numberremorse, even thereafter, is yet another wrong which he deliberately companytinued to companymit, to thwart any attempt to re-unite and, in such circumstances can it be said that the passing of a decree for judicial separation has put an end to the allegation of adultery or that the chapter has been closed by the decree for judicial separation and therefore he cannot be said to have companymitted a wrong by companytinuing to live with mistress. The learned companynsel appearing for the appellant placed reliance on a Division Bench decision of the Gujarat High Court in the case of Bal Mani v Jayantilal Dahyabhai, AIR 1979 Guj. 209, in which the view was taken that matrimonial offence of adultery has exhausted itself when the decree for judicial separation was granted, and therefore, it cannot be said that it is a new fact or circumstance amounting to wrong which will stand as an obstacle in the way of the husband to successfully obtain the relief which he claims in the divorce proceedings, and companytended that the question should be answered in favour of the husband as has been done by the Gujarat High Court. We are unable to accept the companytention. Living in adultery on the part of the husband in this case is a companytinuing matrimonial offence. The offence does number get frozen or wiped out merely on passing of a decree for judicial separation which as numbered earlier merely suspends certain duties and obligations of the spouses in companynection with their marriage and does number snap the matrimonial tie. In that view of the matter accepting the companytention raised on behalf of the appellant would, in our view, defeat the very purpose of passing the decree for judicial separation. The decision of the Gujarat High Court does number lay down the companyrect position of law. On the other hand the decision of the Madras High Court in the case of Soundarammal v. Sundara Mahalinga Nadar, AIR 1980 Madras 294, in which a single Judge took the view that the husband who companytinued to live in adultery even after decree at the instance of wife companyld number succeed in petition seeking decree for divorce and that section 23 1 a barred the relief, has our approval. Therein the learned Judge held and in our view rightly that illegality and immorality cannot be companyntenanced as aids for a person to secure relief in matrimonial matters.

BANERJEE, J. LITTTTTTJ Leave granted in both the SLPs. By companysent of learned Senior Advocates of the parties, the appeals were heard finally and are being disposed of by this companymon judgment. Assumption of Admiralty jurisdiction by Andhra Pradesh High Court and passing of an order of arrest in execution of a judgment and decree of the High Court of Justice Queens Bench Division, Admiralty Court in London in case No. 1994 Folio No. 1693 dated 9.11.1988, is the key issue for discussion in these appeals by the grant of special leave. Adverting to a brief reference to the factual aspect of the matter at this juncture it appears that an Execution Petition was filed before the learned Single Judge of the Andhra Pradesh High Court in terms of Section 15 of the Admiralty Courts Act and Section 44A read with Order XXI Rule 10 of the Code of Civil Procedure for executing the decree issued by the High Court of Justice Queens Bench Division Admiralty Court in an action by the first respondent against the second respondent herein claiming damages for repudiation of an L.O.F. salvage companytract. Needless to record that the second respondent was said to be the owners of the vessel M.V.AL QUAMAR ex AL TABITH. The factual score depicts that pending the Execution Petition, the decree holder prayed for an Interlocutory Order to issue a warrant of arrest against the vessel together with Hull tackle Engines Machinery equipments stores etc. The learned Single Judge of the Andhra Pradesh High Court on 15th September, 1999 granted an interim order as prayed for on a prima facie view of the matter that the Execution Petition can be filed in the High Court which is otherwise having original admiralty jurisdiction. The records depict that the appellant herein filed a petition to vacate the interim order principally on the ground that the ownership of the ship having been transferred bona fide and for valuable companysideration to Quamar Shipping Ltd., the ship as attached in terms of the order of 15th September, 1999, cannot possibly be kept under attachment in execution of the decree against the original owner being the respondent No.2 herein. The appellant companytended that in any event, the latter being, number a party to the judgment, question of execution on the basis thereof would otherwise be a total miscarriage of justice. Incidentally, the learned Single Judge in his judgment has been pleased to record that the matter in issue involves eminently an arguable case as regards the maintainability of the Execution Petition and the proper companyrse should therefore be, as the learned Judge pointed out to hear the Execution Petition itself at a date early and to companytinue interim order during the interegnum. The records depict that the appellant herein subsequent to the order as above moved the Appellate Forum and the Appellate Court while dismissing the appeal observed as below- In our view, the opinion expressed by the learned single Judge that the execution petitioner first respondent herein has an arguable case as regards the maintainability of the E.P. and that the companytentious issues ought to be dealt with more appropriately at the hearing of the E.P. instead of entering into a discussion at the interlocutory stage, cannot be faulted. The E.P. itself has been posted for hearing and the hearing would have been companycluded by number, but for this intervening appeal. Equally, the other reason given by the learned Judge that vacation of the interim order would have the potential effect of making the execution petition infructous and, therefore, the interim order ought number be vacated before the disposal of the E.P. also appeals to us. Considerations of prima facie case and balance of companyvenience were rightly taken into account by the learned single Judge. We see numbervalid ground to suspend the interim order. The companytention of the learned companynsel for the appellant that companytinuance of interim order should be made companyditional upon furnishing of security or at least insisting on an undertaking to indemnify the loss, does number merit acceptance. Incidentally, it may be mentioned that the companynsel for the appellant did number express any doubts about the solvency and financial capacity of the first respondent companypany. However, the grievance of the appellant that on account of the interim order, the appellant is incurring substantial expenditure day to day, has to be suitably redressed. To this limited extent, we are inclined to safeguard the interest of the appellant by directing the first respondent to furnish an undertaking to the satisfaction of the Registrar Judicial of this Court to pay a maximum amount of Rs.600 U.S. Dollars per day from 19.11.1999 date of hearing this appeal onwards till the date of disposal of P. and also to pay crews wages subject to the proof of actual expenditure being furnished by the appellant to the first respondent in respect of all the items. The O.S.A. is dismissed subject to the above direction. No companyts. We companysider it a fit to be heard by Division Bench. In terms of the order as above, the Execution Petition itself was placed before the Bench of the learned Chief Justice wherein upon recording companycurrence as regards the maintainability of the petition it was observed that the execution petition be heard on merits and hence the Special Leave Petition before this Court under Article 136 of the Constitution being SLP No.4410 of 2000. Incidentally, be it numbered that there is in the record of this Court another SLP being SLP No.18616 of 1999 against the judgment of the Division Bench of the High Court as passed earlier and as numbericed above, but since both the matters pertain to self same subject matter, this Bench deemed it fit to hear both the appeals together and deal with the same in one judgment. Before adverting to the most illuminating and lucid submissions of the learned Senior Advocates Shri P. Chidambaram, for the appellant and Shri Ashok H. Desai, for the respondent No.1, a brief backdrop of the admiralty jurisdiction of the companyntry may be a useful introduction The three erstwhile Presidency High Courts in companymon and popular parlance Chartered High Courts namely, Calcutta, Bombay and Madras were having the Letters Patent for the companyferment of the ordinary original civil jurisdiction and by reason of the provisions companytained therein read with the Admiralty Court Act, 1861 and subsequent enactment of Colonial Courts of Admiralty Act, 1890 and Colonial Courts of Admiralty India Act, 1891, the admiralty jurisdiction on the three High Courts numbericed above can be fairly traced. This special Admiralty jurisdiction was saved by the Government of India Act, 1915 as also that of 1935 and subsequently protected in terms of Article 225 of the Constitution. By and under the provisions of Colonial Courts of Admiralty Act 1890, the High Courts of these three Presidency towns were companyferred with the same jurisdiction as was vested in the High Court of England and the High Courts were declared to be otherwise companypetent to regulate their procedure and practice as would be deemed necessary companyresponding to the Indian perspective in exercise of the admiralty jurisdiction by way of rules framed in that regard. There is thus numbermanner of doubt that there existed or is existing any fetter in regard to the exercise of admiralty jurisdiction in so far as the three High Courts at Calcutta, Bombay and Madras are companycerned. The other introductory aspect pertains to the companyferment of admiralty jurisdiction on to the Andhra Pradesh High Court. In terms of provisions of Andhra State Act of 1953 Act 30 of 1953 certain territories from erstwhile State of Madras were included in the State of Andhra Pradesh and the Court at Andhra Pradesh was re-designated as the High Court of Andhra Pradesh when the State was so named under the States Re-organisation Act, 1956. The Andhra Pradesh High Court being the successor of the High Court of Madras presently Tamilnadu has thus the similar jurisdiction as was so vested in the Madras High Court prior to the transfer. Needless to say that since Visakhapatnam is also included in the State of Andhra Pradesh, the port of Visakhapatnam falls within the admiralty jurisdiction of the High Court of Andhra Pradesh. It is in this companytext observations of this Court in M.V. Elisabeth Others v. Harwan Investment and Trading Pvt.Ltd., Goa AIR 1993 SC 1014 seem to be of some assistance. This Court in paragraph 26 of the report observed Assuming that the admiralty powers of the High Courts in India are limited to what had been derived from the Colonial Courts of Admiralty Act, 1890, that Act, having equated certain Indian High Courts to the High Court of England in regard to admiralty jurisdiction, must be companysidered to have companyferred on the former all such powers which the latter enjoyed in 1890 and thereafter during the period preceding the Indian Independence Act, 1947. What the Act of 1890 did was, as stated earlier, number to incorporate any English statute into Indian law, but to equate the admiralty jurisdiction of the Indian High Courts over places, persons, matters and things to that of the English High Court. As the Admiralty jurisdiction of the English High Courts expanded with the progress of legislation, and with the repeal of the earlier statutes, including in substance the Admiralty Court Acts of 1840 and 1861, it would have been reasonable and rational to attribute to the Indian High Courts companyresponding growth and expansion of admiralty jurisdiction during the pre-independence era. But a restrictive view was taken on the question in the decision of the High Courts cited above. There is thus numberscope to companyclude that the Admiralty jurisdiction of the Andhra Pradesh High Court stands frozen or atrophied in any way whatsoever. The discussion above pertaining to the admiralty jurisdiction of the Andhra Pradesh High Court in our view is rather pertinent more so by reason of the submissions that the matter in issue pertains to maritime claim. English legislations after the Admiralty Courts Act, 1890 are galore in the matter of widening the scope and ambit of the jurisdiction of the Admiralty Courts We however need number go into that aspect of the matter any further, suffice however, to record our companycurrence that jurisdiction of the Indian Courts also has number been atrophied in any way whatsoever. vide MV Elisabeth supra . The cardinal issue pertains to the invocation of Section 44A of the Code in the matter under companysideration, for enforcement of a foreign judgment in the Andhra Pradesh High Court stands companytradicted by Mr. Chidambaram on two specific companynts. The same being on the first companynt the Civil Procedure Code cannot possibly be made applicable to any matter of criminal or admiralty or vice admiralty jurisdiction. The basis of the submission however, was laid on Section 112 of the Code. The ouster provision Section 112 may thus be numbered herein below for its true scope and purport 12. 1 Nothing companytained in this Code shall be deemed a to affect the powers of the Supreme Court under article 136 or any other provision of the Constitution, or b to interfere with any rules made by the Supreme Court, and for the time being in force, for the presentation of appeals to that Court, or their companyduct before that Court. Nothing herein companytained applies to any matter of criminal or admiralty or vice-admiralty jurisdiction, or to appeals from orders and decrees of Prize Courts. Incidentally, Section 112 1 a and b stand substituted by the Adaptation of Laws Order 1950 and as a matter of fact, the state of affairs prevailing in the pre-Independence period has been set right by the legislation of 1950 Adaptation of Laws Order . A look at the provisions of two Parallel Codes of Civil Procedure 1882 and 1908 together with the moderation after Independence will obviously clarify the situation. The Parallel Codes and the present Section 112 thus runs LTTTTTTTJ Code of 1882 Code of 1908 Present Section 112 Nothing herein 112. 1 Nothing 112. 1 Nothing companytained shall be companytained in this companytained in understood- Code shall be this Code shall deemedbe deemed- a to bar the full a to bar the a to affect and unqualified full and unqualithe powers of exercise of Her fied exercise of the Supreme Majestys pleasure His Majestys Court under artin receiving or pleasure in receicle 136 or any rejecting appeals iving appeals to other provision to Her Majesty in His Majesty in of the Constitut- Council, or Council, or other ion, or otherwise howsoever, -wise howsoever, or or b to interfere with b to interfere b to interfere any rules made by the with any rules with any rules Judicial Committee of made by the Judimade by the Privy Council, and cial Committee of Supreme Court, for the time Being in the Privy Council, and for the time force, for the presentand for the time being in force, ation of appeals to being in force, for the present- Her Majesty in Council for the presentaation of appeals or their companyduct before tion of appeals to to that Court, the said Judicial His Majesty in Couor their companyduct Committee. ncil, or their before that Conduct before the Court. said Judicial Committee. And numberhing in this 2 Nothing herein 2 Nothing Chapter apples to any companytained applies herein companytai matter of criminal to any matter of -ned applies to or admiralty or vicecriminal or admir any matter of admiralty jurisdiction. -alty or vicecriminal or or to appeals from admiralty jurisdiadmiralty or orders and decrees ction, or to vice-admiralty of Prize Courts. appeals from orders jurisdiction, and decrees of or to appeals Prize Courts. from orders and decrees of Prize Courts. This companyparative analysis of the provisions of the Code as amended from time to time unmistakably goes to show that as regards Section 112 a and b in the post-Independence period, the powers of this Court under Article 136 stand substituted in place and stead of His Majesty in Council and the Judicial Committee of the Privy Council. The Adaptation of Laws Order however, did number in fact, add to or alter sub-section 2 of Section 112 which also finds place in Section 616 of the 1882 Code in identical language. The number exclusion of sub-section 2 howsoever surprising it may be in independent India, but the fact remains that the 1950 legislation has chosen number to omit it from the Statute Book and as such a meaning shall have to be attributed thereto. It is significant to numbere that sub-section 2 of Section 112 even after the Adaptation of Laws Order 1950 speaks of decrees of Prize Courts. In Halsburys Laws of England 4th Edn. Vol.- I paragraph 309, the following has been stated to be the jurisdiction of the Prize Courts Assignment to Admiralty Court. The whole jurisdiction of the High Court belongs to all the divisions alike, and all the judges of that companyrt have equal power, authority and jurisdiction. However, every action to enforce a claim for damage, loss of life or personal injury arising out of a companylision between ships or the carrying out or omission to carry out a manoeuvre by one or more of two or more ships or numbercompanypliance with the companylision regulations is assigned to the Queenss Bench Division and taken by the Admiralty Court. The same applies to every limitation action, and generally to causes and matters involving the exercise of the High Courts admiralty jurisdiction, or its jurisdiction as a prize companyrt. The word Prize has also been dealt with in Halsburys Laws of England 4th Edn. Vol. I in paragraph 352 which reads as below Prize. The High Court is a prize companyrt within the meaning of the Naval prize Acts 1864 to 1916, as amended by any subsequent enactment, and has all such jurisdiction on the high seas and throughout Her Majestys dominions and in every place where Her Majesty has jurisdiction as, under any Act relating to naval prize or otherwise, the High Court of Admiralty possessed when acting as a prize companyrt. The Admiralty Court takes causes and matters involving the exercise of the High Courts jurisdiction as a prize companyrt. The issue arises as to whether we have after Independence, available in this companyntry, the decrees of the Prize Courts or there is even any existence thereof. Admiralty jurisdiction of the companyrts as numbericed hereinbefore has been by reason of the Letters Patent and certain other legislations saved by the provisions of the Constitution apart therefrom, question of ascribing any independent admiralty companyrt as prize companyrt in the companyntry presently, would number arise Be that as it may, we do number wish to express any definite opinion in regard thereto by reason of the fact that the same is number called for in the companytextual facts of the matter under companysideration, suffice it to numbere that a doubt persists as to the applicability to sub-section 2 of Section 112. In any event, if the intent of the legislation was to do away with the applicability of provisions of the CP Code, in terms of Section 112 2 of the Code then and in that event, question of companytinuance of Section 140 of the Code would number have arisen. Incidentally, Section 140 1 and 2 is a repetition of Section 645 a of the 1882 Code. For companyvenience sake, Two Parallel Codes of 1882 and 1908 and the present Section 140 which is in identical language as that of the 1908, Code, is set out herein below Code of 1882. 645-A, In any Admiralty or Vice- Admiralty cause of salvage, towage or companylision, the Court whether it be exercising its original or its appeallate jurisdiction, may, if it thinks fit, and upon request of either party to such cause shall, summon to its assistance, in such manner as the Court may by rule, from time to time, direct, two companypetent assessors, and such assessors shall attend and assist accordingly. Every such assessor shall receive such fees for his attendance as the Court by rule prescribes, Such fees shall be paid by such of the parties as the Court in each case may direct. Code of 1908/Code of 1976 ------------------------ 140. 1 In any Admiralty ir vice-Admiralty cause of salvage, towage or companylision, the companyrt whether it be exercising its original or its appellate jurisdiction, may, if it thinks fits, and shall, upon request of either party to such cause, summon to its assistance, in such manner as it may direct or as may be prescribed, two companypetent assessors and such assessors shall attend and assist accordingly. Every such assessor shall receive such fees for his attendance, to be paid by such of the parties as the Court may direct or as may be Prescribed. It is in this companytext a rather old decision of the Bombay High Court seem to be apposite. The learned Single JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Judge of the High Court in the case of The Bombay and Persia JJJJJJJJJJJJJJJJJ Steam Navigation Company Ltd. v. Shepherd and Haji Ismail Hossein ILR 1888 XII Bombay 237 was pleased to state as below The rules regulating Admiralty practice provide that a suit shall be companymenced by a plaint according to the provisions of the Code of Civil Procedure. They were framed when the Code of 1859 was in force, and when the power of the Court to regulate its procedure was more extended than it is at present. The rules subsequent to the one above referred to, provide for the taking out of a warrant of arrest when the suit is in rem, and make numberspecial provision when the suit is in personam but Rule 54 directs that proceedings number provided for by the rules shall be regulated by the rules and practice of the High Court in suits brought in it in the exercise of its ordinary original civil jurisdiction. Though these rules do number apparently companytemplate a suit in rem and in personam being companybined, they do number expressly or by necessary implication forbid it. The Code of Civil Procedure of 1882 applies to proceedings on the Admiralty side of the High Court section 645-A shows that this is so. Needless to record here that in accordance with the salutary principle of interpretation and one of the golden canon of statutory interpretation being that the latter provision shall prevail over the earlier and in the event, the Adaptation of Laws Order deemed it expedient to exclude applicability of the Civil Procedure Code in terms of Section 112 2 as is being companytended by Mr. Chidambaram, question of incorporating Section 140 or companytinuing therewith and in any event in the 1976 Code would number have arisen. The learned Single Judge in our view has rightly decided the applicability of the Code of Civil Procedure even in Admiralty jurisdiction. Reliance was placed in support of the exclusion of the Code pertaining to Admiralty jurisdiction in the decision of the Calcutta High Court in the case of State of Ukraine v. Elitarious Ltd. wherein I was a party . A mere perusal of the judgment of the High Court, however, negates the companytention in support of the Appellant. As a matter of fact, Mr. Ashok H. Desai, appearing for the Respondents relies on the judgment as a judgment in subsilencio and we feel it rightly so, since the judgment dealt with the various provision of C.P.Code vis-a-vis. the Admiralty actions and the ratio decendi of the decision being Admiralty jurisdiction is number a ordinary original civil jurisdiction and thus number a suit within the meaning of Section 86 of the Code. In paragraph 37 of the decision in State of Ukraine v. Elitarious Ltd. supra , the High Court upon reference to the Jolly Varghese case Jolly George Varghese and another v. The Bank of Cochin AIR 1980 SC 470 observed as below In this companynection reference may be made to decision of the Supreme Court in 17 Jolly George Varghese and another v. The Bank of Cochin reported in AIR 1980 SC page 470. While companysidering Article 11 of the International Covenant on Civil and Political right to which India is a signatory, the Apex Court in paragraph 6 of the Judgment inter alia made the following observations- India is number a signatory to this companyenant and Article 51 c of the Constitution obligates the state to foster respect for International Law and treaty obligations in the dealings of organised peoples with one another. Even so until the Municipal Law is changed to accommodate the companyenant what binds the Court is the former, number the latter. A.H. Robertson in Human Rights in National and International Law rightly points out that International Conventional Law must go through the process of transformation into the Municipal Law before the international treaty can become an internal Law In view of the aforesaid decision of the Supreme Court, in our opinion, even if a suit appears from the statement in the plaint to be barred by any International Law the plaint cannot be rejected unless such International Law has gone through the process of transformation into Municipal Law. Thus, we companyclude that in order to bring a case within the mischief of Order 7 Rule 11 d of the Code of Civil Procedure, the suit must appear from the statement made in the plaint to be barred by any statemade law including any ordinance, order, bye-law, rule, regulation, numberification, custom or usages having in the territory of India the force of law. As the word has number been defined in the Code of Civil Procedure, in arriving at the aforesaid companyclusion, we have thought it profitable to take aid of Article 13 3 a of the Constitution of India. Thus, we find numberforce in the second companytention of Mr. Mukherji. On the wake of the aforesaid, we are unable to record our companycurrence pertaining to the exclusion of the Code in Admiralty jurisdiction. Significantly, the Admiralty Rules of the High Court at Madras, which stand adopted by the Andhra Pradesh High Court in numberuncertain terms also negate the submission in support of the appeal. The relevant Admiralty Rules are however set out herein below A suit shall be instituted by a plaint drawn up, subscribed and verified according to the provisions of the Code save that if the suit is in rem, the defendants, may subject to such variation as the circumstances may require, be described as the owners and parties interested in the vessel or other property proceeded against instead of by name. An attorney instituting a suit against any property in respect of which a Caveat has been entered in the register of Admiralty suits shall forthwith serve a companyy of the plaint upon the party on whose behalf the Caveat has been entered or upon his attorney. If when the suit companyes before the Court it is satisfied that the claim is well founded, it may pronounce for the amount which appears to be due and may enforce the payment thereof by order and attachment against the party on whose behalf the Caveat has been entered and by the arrest of the property if it then be or thereafter companye within the jurisdiction of the Court. Every sale under decree of the Court, shall, unless the Judge shall otherwise order, be made by the Sheriff in like manner as a sale of movable property in execution of a decree in an ordinary civil suit. Where numberother provision is made by these rules, proceedings in suits brought in the Court in the exercise of its Admiralty Jurisdiction shall be regulated by the Rules and Practice of the Court in suits brought in it in the exercise of its Ordinary Original Civil Jurisdiction These rules having companyrelation with the ordinary civil jurisdiction thus cannot but be said to be subscribing to a view companytra to that canvassed before us by the Appellant. In any event Section 112 is in Part VII of the Code dealing with the provisions pertaining to appeals whereas Sections 96 108 in Part VII of the Code deal with appeals from original decrees, Section 109 112 deal with appeals to the Supreme Court. The specific words used in sub-section 2 of Section 112 to wit Nothing herein companytained emphasis supplied cannot possibly negate the Code in its entirety. The word herein as emphasised above has a specific companynotation and will have to be given a definite meaning which goes alongwith the entire legislation. In the event the legislature intended a companyplete ban, then and in that event the words used in sub-section 1 in the numbermal companyrse of events would have been used since sub-section 1 used the expression numberhing companytained in this Code- Subsection 1 pertains to the powers of the Supreme Court and the legislature is specific enough to record the same. In the event of there being similar intent, legislature would have used the similar language and number herein as numbericed above. The word herein thus cannot possibly be meant to include the entirety of the Code but to the group of provisions in which it appear. Section 112 thus evidently have two different areas of operation whereas subsection 1 is wider in its amplitude, sub-section 2 is limited in scope and restrictive in its applicability. This is more so by reason of the discussion hereinbefore in this judgment pertaining to Section 140 of the Code and the insertion thereof in the Code is clear and unambiguous to the effect that Section 112 2 does number render the Code companypletely inapplicable to admiralty cases. The Bombay High Court in 1888 ILR 12 Bombay supra has thus came to the companyclusion that the Code of Civil Procedure of 1882 applies to proceedings on the admiralty side of the High Court and Section 645-A presently Section 140 shows the same. We record our companycurrence with the observation of the Bombay High Court in 12 Bombay supra and approve the same in that regard. A recent decision of this Court in the case of Videsh Sanchar Nigam Limited Videsh Sanchar Nigam Ltd. v. M.P.Kapitan Kud and Others 1996 7 SCC 127 also lends companycurrence to the applicability of the Code of Civil Procedure in admiralty action as well since Section 140 has been taken recourse to in the matter of appointment of assessors to give their estimate of the anchoring position and the probable involvement of the first Respondent in the case under reference in breakage of the cable. The applicability of the Code in the admiralty action, as a matter of fact, was number doubted, on the companytrary Section 140 was taken recourse to for the purposes of assessment of the situation. Needless to record that exclusion of jurisdiction cannot be inferred readily unless of companyrse there are companyent materials in regard thereto. In the matters under companysideration the submissions of Mr. Chidambaram, however, companypletely overlooks the provisions as companytained in Section 4 of the Code. We need number dilate on this issue suffice it to record that Section 4 being a general provision which excludes the operation of the CP Code in specific instances as mentioned therein and since exclusion of admiralty jurisdiction is number specifically mentioned, we are unable to sustain the submissions of Mr. Chidambram, in any event, since there is numbersuch general exclusion. In that view of the matter, question of having any companycurrence with the submissions of Mr. Chidambaram as regards the bar of applicability of the Code of Civil Procedure in Admiralty action does number and cannot arise, though I must frankly companyfess that the submissions of Mr. Chidambaram at the first blush was very attractive but a closer scrutiny of the provisions as numbericed above, with respect, rendered the same totally insignificant. Adverting number to the second companynt of submissions of Mr. Chidambaram to the effect that the judgment of the English Court cannot but be termed to be the judgment in personam and the Execution Petition for the arrest of the vessel and subsequent order thereon thus is number maintainable Mr. Chidambaram found fault with the Bench decision of the High Court affirming the maintainability of the Execution Petition since arrest of a ship according to his companytentions, operates in rem and number in personam and it is on this score, strong reliance was placed on the decision of the Court of Appeal in the case of The City of Mecca 1881 P.D. 106 . Jessel M.R. in the decision under reference stated as below There is numbersuggestion from beginning to end that the ship is liable there is numberdeclaration that the ship is liable, and it does number appear on the proceedings that the ship was even within the jurisdiction at the time the action was companymenced against the owners. An action for enforcing a maritime lien may numberdoubt be companymenced without an actual arrest of the ship, but there is numbersuggestion that they intended anything of the kind, and, in fact, the law does number allow it. An action against a ship, as it is called, is number allowed by the law of Portugal. You may in England and in most companyntries proceed against the ship. The writ may be issued against the owner of such a ship, and the owner may never appear, and you get your judgment against the ship without a single person being named from beginning to end. That is an action in rem, and it is perfectly well understood that the judgment is against the ship. In the present case the judgment does number affect the ship at all, unless the ship should afterwards companye within the jurisdiction of the Portuguese Court, and then it can be made a proceeding by which you can afterwards arrest the ship and get it companydemned. Therefore, it seems to me to be plain that this is a personal action as distinguished from an action in rem, and it is numberhing more or less and any attempt to make it out something else because the law of Portugal does number allow actions in rem is really to change the real nature of the action to meet the exigencies of those who want to make the judgment of the Court of Portugal go further than it really does. In the similar vein, Lush, J. in The City of Mecca supra also observed Now upon the face of this judgment, there is number a word about a claim against the ship from beginning to end. It is well known that the owner of a vessel that has suffered by companylision with another has two remedies. He may bring an action against the captain or owner of the other vessel and recover damages, or he may sue in the Court of Admiralty and make the ship pay. It has been stated before us that the Court of Admiralty has been abolished in Portugal and the jurisdiction is transferred to a Court of Commerce, and that there is numberpower number in that companyntry to institute what are called actions in rem. That is what I companylect from these proceedings. Whether there is or is number, seems to me immaterial. There certainly is a proceeding by which a vessel can be laid under embargo, that is arrested, if an action is brought against the captain, in order to secure payment, by lien perhaps, of ultimate damages but whether that can be carried out to proceedings in rem I do number know, number does it strike me to be material. But what is material in companysidering an action of the nature claiming damages alone is that there is numberhing about the ship from the beginning to the end, as I have said. I do number see how it was possible for them to carry and execute a maritime lien when they had number possession of the thing. The vessel was out of their jurisdiction, it was an English vessel, and it naturally left the Portuguese companyst and under the decree of that Court, if a purchaser had to prove his title he companyld number quote a single word of this judgment or any judgment at all that would justify a sale of that ship. It is a judgment purporting to be a judgment against the persons of the captain and owners, and if they ever find them within their jurisdiction they may execute according to the process they have at their companymand the judgment against them individually. But as to any judgment against the ship, I doubt if the ship were found there number that they companyld seize it. But even if they found the ship there, and they companyld without further process seize the ship and sell it in satisfaction, that would number make this a judgment in rem which any Court in this companyntry companyld be called on to execute. The decision in The City of Mecca supra was, lately followed in the Alletta 1974 1 Llyods Law Reports 40 and Sylt 1991 1 Llyods Law Reports 240 . The decision of the Queens Bench Division Admiralty Court in the Despina G.K., 1983 1 All ER 1 has also been very strongly relied in support of the companytention that Admiralty jurisdiction is available by a proceeding in rem and number in personam. Mr. Chidambaram, has also placed strong reliance on the Brussels Convention, being the international companyvention relating to the arrest of seagoing ships of 1952 while it is true that India has number adapted the same, but its relevance however cannot be doubted in any way in the perspective of maritime lien. On this score, however we can usefully numbere the observations of this Court in MV Elisabeth supra which reads as below Indian legislation has number, however, progressed, numberwithstanding the Brussels Protocol of 1968 adopting the Visby Rules or the United Nations Convention on the Carriage of Goods by Sea,1978 adopting the Hamburg Rules. The Hamburg Rules prescribe the minimum liabilities of the carrier far more justly and equitably than the Hague Rules so as to companyrect the tilt in the latter in favour of the carriers. The Hamburg Rules are acclaimed to be a great improvement on the Hague Rules and far more beneficial from the point of view of the cargo owners. India has also number adopted the International Convention relating to the Arrest of Sea-going Ships, Brussels, 1952. Nor has India adopted the Brussels Conventions of 1952 on civil and penal jurisdiction in matters of companylision number the Brussels Conventions of 1926 and 1967 relating to maritime liens and mortgages. India seems to be lagging behind many other companyntries in ratifying and adopting the beneficial provisions of various companyventions intended to facilitate international trade. Although these companyventions have number been adopted by legislation, the principles incorporated in the companyventions are themselves derived from the companymon law of nations as embodying the felt necessities of international trade and are as such part of the companymon law of India and applicable for the enforcement of maritime claims against foreign ships. Mr. Chidambaram in companytinuation of his submissions rather emphatically companytended that the High Court has significantly overlooked the fact that it is only when a decree in rem is passed that a vessel may be arrested for obtaining satisfaction of the claim or the execution of a decree in rem especially in a maritime action having maritime lien. Mr. Chidambaram companytended that in the event however, the proceedings are in personam as in the present case then and in that event, exercise of such a power by a foreign litigant would number arise. The appellant companytended that the decree holder has to proceed only against the judgment debtor and number against the vessel and it is on this companynt a strong criticism has been levelled against the judgment of the High Court to the effect that there has been a total companyfusion as regards exercise of admiralty power in execution of a judgment in rem and judgment in personam. Admittedly the decree of the English Court is in personam, and against respondent No.2 and number the appellantpetitioner herein. It is on this score further reliance was placed on the decision of this Court in the case World Tanker Carrier Corporation vs. SNP Shipping Services Pvt. Ltd. Anr. 1998 5 SCC 310 wherein this Court had the following to observe Under principles of Private International Law, a companyrt cannot entertain an action against a foreigner resident outside the companyntry or a foreigner number carrying on business within the companyntry, unless he submits to the jurisdiction of the companyrt here. This principle applies to actions in personam. Mr. Chidambaram very strongly companymented against the judgment of the High Court for lack of appreciation so far as the English decree is companycerned and companytended that the entire claim was in regard to the damages on the ground of a breach of companytract in the matter of performance of salvage operations, which in fact was never performed and as such question of any maritime claim acquired therefrom would number arise. It is on this score that the learned Chief Justice speaking for the Bench of the Andhra Pradesh High Court in the judgment impugned has the following to state- In India there is number much distinction in civil law system between maritime law and other branches of law. The Courts administer them alike. A perspective of the law further emerges from the reading of the said judgment that where the statutes are silent the remedy has to be sought by reference to the basic principle. It is the duty of the Court to devise procedural rules by analogy and expedience. It was observed the action in rem as seen above were resorted by the Court as a device to overcome the difficulty of personal service on the defendant by companypelling him to enter appearance and accept service of summons and for furnishing security for the release of the res or any action proceeded against the res itself by entering a decree and executing the same by sale of the res. This practical procedural device developed by the Courts with a view to render justice in accordance with the substantive law number only in the cases of companylision and salvage but also in case of other maritime liens and claims arising by reason of breach of companytract for hire of vessel etc. etc. By reading of the judgment reported in 1993 SC 1014 we are of the companysidered view that the vessel is a juridical person a maritime claim can be enforced against the vessel there is numbersubstantive distinction between the Admiralty Courts jurisdiction and the jurisdiction under the companymon law for execution of a decree of a foreign origin in view of the provisions of Section 44-A of the Code. Apart from this, the High Court has jurisdiction being a repository of the power to reach its arm to do justice. By reading of the judgment we are unable to agree with the companytention of the learned companynsel for the respondent that the Supreme Court has laid down any law that a ship can be arrested only for securing a maritime claim and number in execution of satisfaction of a judgment especially in view of the statutory provisions of Section 44-A of the Code. Mr. Ashok H. Desai for the respondent No.1 and being the decree holder, however, in numberuncertain terms companytended that as a matter of fact it is of numbersignificance at all if the judgment be termed to be the judgment in rem or judgment in personam especially in the facts of the matter under companysideration having due regard to the domestic law and in particular Section 44A of the Code of Civil Procedure. Before however, dealing with the same, a passage from encyclopedia Britannica Transportation Law may be of some significance. Learned authors thereof while referring the companyponents of maritime law had the following to state pertaining the maritime liens a word of caution at this juncture ought to be introduced by reason of the companyfusion in populas between a maritime claim and maritime lien whereas claim cannot but be termed to be a genus-lien is a particular species arising out of the genus and the two terms namely, claim and lien cannot be identified with each other so as to accord same meaning. Let us, however, address ourselves on maritime lien as is available in the encyclopedia and the same reads as below Maritime liens although admiralty actions are frequently brought in personam, against individual or companyporate defendants only, the most distinctive feature of admiralty practice is the proceeding in rem, against maritime property, that is, a vessel, a cargo, or freight, which in shipping means the companypensation to which a carrier is entitled for the carriage of cargo. Under American maritime law, the ship is personified to the extent that it may sometimes be held responsible under numberliability. The classic example of personification is the companypulsory pilotage case. Some state statutes impose a penalty on a shipowner whose vessel fails to take a pilot when entering or leaving the waters of the state. Since the pilotage is thus companypulsory, the pilots negligence is number imputed to the shipowner. Nevertheless, the vessel itself is charged with the pilots fault and is immediately impressed with an inchoate maritime lien that is enforcible in companyrt. Maritime liens can arise number only when the personified ship is charged with a maritime tort, such as a negligent companylision or personal injury, but also for salvage services, for general average companytributions, and for breach of certain maritime companytracts. Be it numbered that there are two attributes to maritime lien a a right to a part of the property in the res and b a privileged claim upon a ship, aircraft or other maritime property in respect of services rendered to, or injury caused by that property. Maritime lien thus attaches to the property in the event the cause of action arises and remains attached. It is, however, inchoate and very little positive in value unless it is enforced by an action. It is a right which springs from general maritime law and is based on the companycept as if the ship itself has caused the harm, loss or damage to others or to their property and this must itself make good that loss. See in this companytext Maritime Law Christopher Hill,2nd Edn . As regards the companycept of proceeding in rem and proceeding in personam, it should be understood as actions being related to the same subject matter and are alternative methods pertaining the same claim and can stand side by side. In this companytext, reference may also be made to the observations of this Court in M.V.Elizabeths case supra as stated below Merchant ships of different nationalities travel from port to port carrying goods or passengers. They incur liabilities in the companyrse of their voyage and they subject themselves to the jurisdiction of foreign States when they enter the waters of those States. They are liable to be arrested for the enforcement of maritime claims, or seized in execution or satisfaction of judgments in legal actions arising out of companylisions, salvage, loss of life or personal injury, loss of damage to goods and the like. They are liable to be detained or companyfiscated by the authorities of foreign States for violating their customs, regulations, safety measures, rules of the road, health regulations, and for other causes. The companystal State may exercise its criminal jurisdiction on board the vessel for the purpose of arrest or investigation in companynection with certain serious crimes. In the companyrse of an international voyage, a vessel thus subjects itself to the public and private laws of various companyntries. A ship travelling from port to port stays very briefly in any one port. A plaintiff seeking to enforce his maritime claim against a foreign ship has numbereffective remedy once it has sailed away and if the foreign owner has neither property number residence within jurisdiction. The plaintiff may therefore detain the ship by obtaining an order of attachment whenever it is feared that the ship is likely to slip out of jurisdiction, thus leaving the plaintiff without any security. A ship may be arrested i to acquire jurisdiction or ii to obtain security for satisfaction of the claim when decreed or iii in execution of a decree. In the first two cases, the companyrt has the discretion to insist upon security being furnished by the plaintiff to companypensate the defendant in the event of it being found that the arrest was wrongful and was sought and obtained maliciously or in bad faith. The claimant is liable in damages for wrongful arrest. This practice of insisting upon security being furnished by the party seeking arrest of the ship is followed in the United States, Japan and other companyntries. The reason for the rule is that a wrongful arrest can cause irreparable loss and damages to the shipowner and he should in that event be companypensated by the arresting party. See Arrest of Ships byHill, Soehring, Hosoi and Helmer, 1985 . In Halsburys Laws of England, the nature of action in rem and the nature of action in personam is stated to be as below Nature of actions in rem and actions in personam. An action in rem is an action against the ship itself, but the view that if the owners of the vessel do number enter an appearance to the suit in order to defend their property numberpersonal liability can be established against them has recently been questioned. It has been stated that, if the defendant enters an appearance, an action in rem becomes, or companytinues also as, an action in personam but the Admiralty jurisdiction of the High Court may number in all cases be invoked by an action in personam, although this is subject to certain restrictions in the case of companylision and similar cases, except where the defendant submits or agrees to submit to the jurisdiction of the companyrt. The foundation of an action in rem is the lien resulting from the personal liability of the owner of the res. Thus an action in rem cannot be brought to recover damages for injury caused to a ship by the malicious act of the master of the defendants ship, or for damage done at a time when the ship was in the companytrol of third parties by reason of companypulsory requisition. On the other hand, in several cases, ships allowed by their owners to be in the possession and companytrol of charterers have been successfully proceeded against to enforce liens which arose whilst the ships were in companytrol of such third parties. The defendant in an Admiralty action in person is liable, as in other actions in the High Court, for the full amount of the plaintiffs proved claim. Equally in an action in rem a defendant who appears is number liable for the full amount of the judgment even though it exceeds the value of the res or of the bail provided. The right to recovery of damages may however be affected by the right of the defendant to the benefit of statutory provisions relating to limitation of liability. The discussion above has shown us the Anglo-American jurisprudence pertaining to the admiralty matters and the distinction between the action in rem and action in personam being within a very narrow margin but before embarking on to a fuller analysis of the same, let us for the time being transfer our attention to the domestic law in the matter in issue. As regards the domestic law Section 44A of the Civil Procedure Code may be companysidered as one of the basic elements of domestic law viz.a.viz. foreign judgments. Section 44A of the Code as numbered above reads as below Section 44-A. 1 Where a certified companyy of a decree of any of the superior Courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court 2 together with the certified companyy of the decree shall be filed a certificate from such superior companyrt stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be companyclusive proof of the extent of such satisfaction or adjustment. The provisions of Section 47 shall as from the filing of the certified companyy of the decree apply to the proceedings of a District Court executing of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses a to f of Section 13. It is on the basis of the above provision that the Respondent No.1 moved the High Court upon having the decree registered in this companyntry for execution of the English Court decree and it is on this score that Mr. Chidambaram companytended that Section 44A cannot possibly be said to be of any assistance to the English decree holder. Incidentally, a plain reading of Section 44A would depict the following companyponents The decree must be of a superior companyrt of a reciprocating territory the decree is to be filed in a District Court The decree may be executed in India as if it had been passed by the District Court Provisions of Section 47 of the CPC shall apply, subject to the exceptions specified in clauses a to f of Section 13 Decree means any decree under which a sum of money is payable. See Explanation II . Section 44A thus indicates an independent right, companyferred on to a foreign decree holder for enforcement of its decree in India. It is a fresh cause of action and has numberco-relation with jurisdictional issues. The factum of the passing of the decree and the assumption of jurisdiction pertaining thereto, do number really obstruct the full play of the provisions of Section 44A. It gives a new cause of action irrespective of its original character and as such it cannot be termed to be emanating from the admiralty jurisdiction as such. The enforcement claimed is of an English decree and the question is whether it companyes within the ambit of Section 44A or number. The decree itself need number and does number say that the same pertains to an admiralty matter neither it is required under Section 44A of the Code. Though however in the facts of the matter under companysideration, the decree has been passed by the High Court of England a Superior Court in its Admiralty jurisdiction. Registration in this companyntry, as a decree of a superior foreign Court having reciprocity with this companyntry would by itself be sufficient to bring it within the ambit of Section 44A. The companyferment of jurisdiction in terms of Section 44A, cannot be attributed to any specific jurisdiction but an independent and an enabling provision being made available to a foreigner in the matter of enforcement of a foreign decree. It is in this companytext that Mr. Desai placed strong reliance on a decision of the Commonwealth of Australia 1980 JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ CLR 565 Hunt v. B.P. Exploration Co. Libya Ltd. JJJJJJJJJJJJJJJ and since the summary of the judgment as is available in the report would sub-serve our purpose we need number go in for longish narration in regard thereto. The summary provides A judgment creditor registered a judgment of the High Court of Justice in England under Section 5 of the Reciprocal Enforcement of Judgments Act, 1959 Q . The judgment debtor had assets in Queensland but he was number present within the jurisdiction and there was numberother fact or circumstance to companynect him with the State. He did number submit to the jurisdiction of the Supreme Court. Section 6 1 c of the Act enabled Rules of Court to be made providing for the service or a judgment debtor of numberice of the registration of a judgment. No such rules had been made when the judgment was registered. Held that the judgment had been validly registered. The Act was within the legislative companypetence of the Queensland Parliament because it provided for the registration of foreign judgments in a Court of the State and their enforcement within the State. The facts that the parties to the judgment had numberconnexion with the State was number relevant to the validity of the registration. Further the Act should number be companystrued as limited in its application to persons within the State. The second decision again under the same cause title of the New Zealand Supreme Court at Aukland Hunt v. P.Exploration Co. Libra Ltd. 1980 1 NZLR 104 is also to the same effect. The principal issue in the New Zealands case was to the following effect 1 . Does the Court have jurisdiction under the Act to register the English Judgment? If that issue is decided in favour of Mr. Hunt, then the injunction and the charging order fell to the ground. The issue however, was answered by the New Zealand Supreme Court upon companysideration of the Black-Clawsons case Black Clawson International Ltd. v. Papierwerke Waldhof- Aschaffenburg 1975 AC 591 as also the Australian judgment numbericed hereinbefore in the manner following The Act provided a new system for bringing a judgment debtor in foreign proceedings before the registering Court, whilst preserving his companymon law defences once he got there. I am left with a statute, clear and unambiguous in its references to judgment debtor and judgment of a superior Court of a companyntry to which this Part of this Act applies. Mr. Hunt clearly companyes within those references. The fact that the debtor is number within the jurisdiction of this Court was obviously number companysidered important. In practice, the Act would numbermally be applied to debtors with assets within the jurisdiction, although there do number need to be assets within the jurisdiction. See Hospital for Sick Children v. Walt Disney Productions Inc 1968 Ch 52, 69, 77 1967 All ER 1005, 1011, 1016, which held that an injunction companyld issue against a companyporation number within the Courts jurisdiction and which did number have assets there at the time of the order. I think that, fundamentally, my decision must companye down to this On the one hand, is the Mareva jurisdiction for want of a better term merely an instance of the exercise of the Courts general jurisdiction companyferred in broad terms by s 16 or is 118 the Mareva jurisdiction to be regarded as legislating in an area which should be left to Parliament? The two opposing points of view are well set out in the various Mareva judgments I have cited on the one hand, and in the South Australian judgments on the other. I companysider that this Court does have a Mareva jurisdiction. I do number accept the view that this jurisdiction is in the nature of legislating in an area forbidden to the Courts. I am number impressed by the assumption of fearful authority line of cases. There appears to have been an old English procedure of foreign attachment which provides a perfectly respectable ancestry for the procedure. The fact that this procedure accords with that in European companyntries is, for a New Zeeland Court, a matter of companyncidence. The Court has to approach modern problems with the flexibility of modern business. In former times, as Lawton J. pointed out, it would have been more difficult for a foreign debtor to take his assets out of the companyntry. Today, vast sums of money can be transferred from one companyntry to another in a matter of seconds as a result of a phone call or a telex message. Reputable foreign debtors of companyrse having numberhing to fear the facts of the reported Mareva cases indicate that the jurisdiction is wholesome the sheer number of Mareva injunctions granted in London indicates that the jurisdiction is fulfilling a need. Lord Denning M.R. cited with approval in the Rasu Maritima case 1978 QB 644, 660-661 1977 3 All ER 324, 333-334, the following statement of practical reasons by Kerr J., a highly experienced companymercial Judge A plaintiff has what appears to be an indisputable claim against a defendant resident outside the jurisdiction, but with assets within the jurisdiction which he companyld easily remove, and which the companyrt is satisfied are liable to be removed unless an injunction is granted. The plaintiff is then in the following difficulty. First, he needs leave to serve the defendant outside the jurisdiction, and the defendant is then given time to enter an appearance from the date when he is served, all of which usually takes several weeks or even months. Secondly, it is only then that the plaintiff can apply for summary judgment under Order 14 with a view to levying execution on the defendants assets here. Thirdly, however, on being apprised of the proceedings, the defendant is liable to remove his assets, thereby precluding the plaintiff in advance from enjoying the fruits of a judgment which appears irresistible on the evidence before the Court. The defendant can then largely ignore the plaintiffs claim in the companyrts of this companyntry and snap his fingers at any judgment which may be given against him. It has always been my understanding that the purpose and scope of the exercise of this jurisdiction is to deal with cases of this nature. To exercise it on an ex parte basis in such cases presents little danger or inconvenience to the defendant. He is at liberty to apply to have the injunction discharged at any time on short numberice. I, for one, do number always agree with the alleged judicial law-making of Lord Denning on this occasion, I think that he has legitimately spelt out the jurisdiction of the Court and has up-dated old but useful procedures, aimed at enabling the law to deal with the companymercial realities of modern business. Accordingly, I am of the view that the Mareva jurisdiction exists in New Zeeland. I find numbercause to dissent from the view of Quilliam, J. in Mosen v. Donselaar that the Mareva jurisdiction exists in New Zeeland, which view was accepted without argument in the other New Zeeland decision. The principal companysideration is whether BP has given has some grounds for believing that there is a risk of Mr. IIunts New Zeeland assets being removed before the judgment or award is satisfied. Mr. Gatenby, in one of his affirmations, asserted that although the judgment debtor is reputedly an extremely wealthy and substantial businessman, searches and inquiries companyducted by or on behalf of the judgment creditor reveal relatively few assets in companyntries where enforcement can be companyducted expeditiously and economically through the use of reciprocal enforcement legislation from which the judgment debtor benefits other than only indirectly through the medium of Americanbased companypanies or trusts. He opined that it was apparent that Mr. Hunt has the means and the capability to organise his business affairs in a sophisticated manner. This statement is riddled with hearsay and does number state, as required by R 185 of the Code, the grounds for the deponents belief. I therefore feel that I can take limited account of this statement. My companycern at such a hearsay statement is similar to that expressed by Lawton L.J. in the passage cited, although, in its terms, the statement appears to have followed some of Lawton L.Js guidelines. All in all, I infer that there is a danger that the assets will be taken out of New Zealand. The situation is different from the usual Mareva type of case where there is number even a judgment but merely the issue of proceedings. Here, there is a judgment, albeit one subject to an appeal a judgment obtained after a lengthy defended hearing and one subject to being set aside under the provisions of the Act. All things companysidered, I am of the view on the authorities, that there was sufficient justification for the issue of the Mareva injunction which will therefore stand as varied, with liberty to apply reserved to both parties to vary its terms further. I prefer Lawton L.Js formulations of the criteria, although read in companytext, Bridge L.J in the Montechhi case was number purporting to lay down a narrower test. I am of the view also that B.P. is in a stronger position than the average Mareva applicant in that it has a judgment capable of being registered as a Judgment of this Court whereas numbermally, all the applicant has is a prima facie case. I bear in mind Lawton L.Js statement that if numberhing is known about a defendant, that may be enough whilst in one sense, much is known about Mr. Hunt, numberhing companycrete is known about his willingness to pay the English Judgment if his appeal fails. Had there been some credible statement to this effect, in even one of the various Courts involved thus far, I might number have found enough to justify the Mareva injunction. However, his silence on the point, added to all the other factors, persuades me to sustain the injunction. The two decisions numbered above in our view deal with the situation amply after having companysidered more or less the entire gamut of judicial precedents. Barker, Js judgment in the New Zealand case very lucidly sets out that the companyrt has to approach the modern problem with some amount of flexibility as is number being faced in the modern business trend. Flexibility is the virtue of the law companyrts as Rosco Pound puts it. The pedantic approach of the law companyrts are numberlonger existing by reason of the global change of outlook in trade and companymerce. The observations of Barker, J. and the findings thereon in the New Zealands case with the longish narrations as above, depicts our inclination to companycur with the same, but since issue is slightly different in the matter under companysideration, we, however, leave the issue open, though the two decisions as above cannot be doubted in any way whatsoever and we feel it expedient to record that there exists sufficient reasons and justification in the submission of Mr. Desai as regards the invocation of jurisdiction under Section 44A of the Code upon reliance on the two decisions of the New Zealand and Australian Courts. The observations of us, as above, do find some companycurrence in Dicey and Moris on The Conflict of Laws Vol.I, 13th Ed. Page 538 which is to the following effect There is numberrequirement that the judgment debtor be subject to the personal jurisdiction of the English companyrt. Enforcement is by registration, and number by action, and the judgment debtor need have numberconnection with England In the view as above, the appellants companytention pertaining to Section 44A thus cannot be sustained. The JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ apprehension of there being a horrendous companysequences on JJJJJJJJJJJJJJJJJJJJJJ the wake of the observations as above thus cannot but be stated to be totally unrealistic and with respect, a figment of imagination. Mr. Chidambaram by way of an alternative submission companytended that assuming Section 44-A of the Code is applicable for the execution of a decree in personam obtained from an Admiralty Court in Britain but since Section 44-A is number a selfcompanytained Code for execution of a decree, the same is number exhaustive and the same, as a matter of fact does number displace the companymon law and it has to be read alongwith the well settled principles of companymon law in matters relating to execution of decree for a sum of money. Strong reliance was placed on the foreign judgment Reciprocal Enforcement Act 1933 and it is on this companytext, reliance was placed on the decision in Black Clawsons case supra . It has been companytended that since Section 44-A was introduced by an amendment after the foreign judgment Reciprocal Enforcement Act, 1933 it is apparent that the legislature did number think it fit to include in Section 44A into the 1933 Act. Without dilating much on this score, in our view , the decisions of the New Zealand and the Australian Courts as numbericed above, answer the same in numberuncertain and unambiguous language. The views expressed by the English Courts in Black Clawsons case supra has been expressly dissented from in both the decisions numbericed above and we do feel it expedient to reiterate the views expressed as above more so by reason of the fact that the 1933 Act on which Black Clawson was decided expressly saved the applicability of the companymon law though to a limited extent by and under Section 8 3 of the Act. As numbericed above Section 44A is an independent provision enabling a set of litigants whose litigation has companye to an end by way of a foreign decree and who is desirous of enforcement of the same It is an authorisation given to the foreign judgments and as numbericed above, the Section is replete with various companyditions and as such independently of any other companymon law rights, an enabling provision for a foreign decree holder to execute a foreign decree in this companyntry, has been engrafted on to statute book to wit Section 44A of the Code. Mr. Chidambaram next companytended that there are certain fundamental principles of execution in India and referred to a judgment of Sir Ashutosh Mukherji in the case of Begg Dunlop Co. v. Jagannath Marvari ILR 39 Calcutta 104 . The fundamental principles as recorded therein and as strongly companytended by Mr. Chidambaram runs as follows A decree may be executed either by the Court which passed it or by the Court to which it has been sent for execution. Sec.38 CPC ii. A decree may be sent to another Court of companypetent jurisdiction the Court shall be deemed to be a Court of companypetent jurisdiction, if such Court would have jurisdiction to try the suit where the decree was passed. Section 39 1 3 CPC . iii. Even after sending the decree to another Court for execution, the original Court does number lose jurisdiction over the matter. Mr. Chidambaram in suapport of his companytention of Fundamental Principles has also taken us through the provisions of Sections 16, 17, 19 and 20 of the CP Code. Admittedly and without much dialation Section 20 overlaps Section 19 see in this companytext Mullas Civil Procedure Code 15th Ed. Vol. I page 240 . The submissions pertaining to the fundamental principles of execution does number, however warrant, in our view, a fuller and detailed discussion save to numbere that Section 44A is a departure from the scheme of execution of domestic decree. By virtue of Section 44A 3 , all defences under Section 13 a to f which reads as under are available to a defendant. 13. S.14 A foreign judgment shall be companyclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except a where it has number been pronounced by a Court of companypetent jurisdiction b where it has number been given on the merits of the case c where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable d where the proceedings in which the judgment was obtained are opposed to natural justice e where it has been obtained by fraud f where it sustains a claim founded on a breach of any law in force in India. As a matter of fact this is a scheme alien to the scheme of domestic execution as is provided under Section 39 3 of the Code. The scheme under the latter section is companypletely a different scheme wherein the transferee Court must be otherwise companypetent to assume jurisdiction and the general rule or the principle that one cannot go behind the decree is a permissible proposition of law having reference to Section 39 3 of the Code. Section 44A however is having a in-built scheme of execution which is number in any companyparable situation with the scheme in terms of Section 39 3 . One can thus from the above companyclude that whereas the domestic law, execution scheme is available under Sections 37, 38, 39, 41 and 42, Section 44A depicts an altogether different scheme for enforcement of foreign judgments through Indian companyrts. Reference in this companytext may also be made to the provisions as companytained in Order 21 Rule 22 of the Code which expressly provide that in the event of their being an application for execution and the same been taken out beyond a period of two years after the date of the decree, there is existing a mandatory obligation to serve a numberice to show cause against the execution. Such a requirement of the decree being more than 2 years old is number mentioned as regards the provisions of execution of decree filed under Section 44A. This is a new introduction in the 1976 Code and in our view substantiates the reasonings as above and supports the companytention of Mr. Desai as regards two separate and independent Schemes for execution. On the wake of the aforesaid, it can thus be safely companycluded that while it is true that action in rem and in personam have lost much of significance in the present day world but in the facts of the matter under companysideration, we are number really companycerned therewith and as such we are number expressing any definite opinion in regard thereto suffice however, to record that we are inclined to lend our companycurrence with the views expressed by the Australian and the New Zealand companyrts apropos judgment in personam and in rem as numbericed above. In fine, the legal fiction created by Section 44A makes the Andhra Pradesh High Court, the Court which passed the decree and as such companypetency of the High Court to entertain the execution proceeding cannot be doubted in any way. In the premises above-said, we do number find any merit in the Appeals before us and thus the same are liable to be dismissed subject to the liberty reserved to the appellants as indicated herein below. This order of dismissal however, would number preclude the appellant herein, to obtain release of the attached ship on furnishing a Bank guarantee of a nationalised Bank for suitable amount to the satisfaction of the Registrar Judl. of the Andhra Pradesh High Court, pending the execution proceedings. The amount of Bank Guarantee may be fixed by the Registrar Judl. after hearing the parties or their advocates. Furnishing of such Bank Guarantee will be in addition to the undertakings required to be furnished by the appellant pursuant to the order of the High Court which is subject matter of civil appeal arising out of SLP C No.18616 of 1999. Furnishing of such Bank Guarantee will also be without prejudice to the appellants rights and companytentions regarding the merits of the decree-holders claim qua the arrested ship. Once such Bank Guarantee is furnished by the appellant and requisite undertakings as earlier ordered by the High Court are filed, the ship will be released from attachment and will be permitted to sail out of the port of Vishakhapatnam.

CIVIL Appellate JURISDICTION Civil Appeal No. 562 of 1985 From the Judgment and Order dated the 28th January, 1985 of the Calcutta High Court in F. M. A. T. No. 970 of 1984. Somnath Chatterjee, H. K Puri for the Appellants. N. Kacker, ,4. K Ganguli for the Respondents. The Judgment of the Court was delivered by CHINNAPPA REDDY, J Special leave granted. The West Bengal State Electricity Board is the principal appellant in this appeal by special leave which we have just number granted. The first respondent, a permanent employee of the West Bengal State Electricity Board, filed the writ petition out of which the appeal arises in the Calcutta High Court to quash an order dated march 22, 1984 of the Secretary, West Bengal State Electricity 1016 Board terminating his services as Deputy Secretary with immediate effect on payment of three months salary in lieu of three months numberice. The order gave numberreasons for terminating the services of the respondent and there was numberhing in the order which companyld possibly be said to attach any stigma to the respondent. Apparently the order was made under Regulation 34 of the Boards regulations which enables the Board to terminate the services of any permanent employee by serving three months numberice or on payment of salary for the companyresponding period in lieu there-of. The High Court companytrasted Regulation 34 with Regulation 33 which provides for the termination of services of both permanent and temporary employees of the Board on attaining the age of superannuation, as a result of the disciplinary action etc. For the sake of companyvenience we extract below Regulation 33 and the first paragraph which alone is relevant of Regulation 34 33 1 Unless otherwise specified in the appointment order in any particular case, the services of a permanent employee of the Board may be terminated without numberice- i On his attaining the age of retirement or by reason of a declaration by the companypetent medical authority that he is unfit for further service or as a result of disciplinary action if he remains absent from duty, on leave or other wise, for a companytinuous period exceeding 2 years. In the case of a temporary employee, his service may be terminated by serving of- a one months numberice on other side or on payment of a months salary in lieu thereof or b numberice on either side for the period specified in the appointment order or companytract or on payment of salary in lieu thereof, as the case may be. c the service of a temporary employee shall also be deemed to have been terminated automatically if the period of extraordinary leave without pay and or of unauthorized absence from duties exceeding s a maximum period of 90 days. 1017 34. in case of a permanent employees, his services A may be terminated by serving three months numberice or on payment of salary for the companyresponding period in lieu thereof. Contrasting Regulations 33 and 34 the High Court came to the companyclusion that Regulation 34 was arbitrary in nature and suffered from the vice of enabling discrimination. The High Court, therefore, struck down the first paragraph of Regulation 34 and as a companysequence quashed the order terminating the services of the first respondent. The learned companynsel for the West Bengal State Electricity Board submitted that Regulation 34 did number offend Art. 14 of the Constitution, that sec. 18A and 19 of the Electricity Supply Act laid down sufficient guidelines for the exercise of the power under Regulation 34 and in any case the power to terminate the services of a permanent employee was vested in higher ranking officials and might be expected to be exercised in a reasonable way. We are number impressed with the submission of the learned companynsel for the Board- On the face of it, the regulation is totally arbitrary and companyfers on the Board a power which is capable of vicious discrimination- It is a naked hire and fire rule, the time for banishing which altogether from employer-employee relationship is fast approaching. Its only parallel is to be found in the Henry VIII class so familiar to administrative lawyers In Moti Ram Deka v. North East frontier Railway l Rules 148 3 and 149 3 of the Indian Railway Establishment Code were challenged on the ground that they were companytrary to Art. 311 2 of the Constitution. The challenge was upheld though numberopinion was expressed on the question whether the rule offended art 14 of the Constitution. Since then Art. 14 has been interpreted in several decisions of this Court and companyferment and exercise of arbitrary power on and by the State or its instrumentalities have been frowned upon and struck down by this companyrt as offending Art. 14. In S. S. Muley v. J.R. T Tata and Ors. 2 P. B- Sawant, J- of the Bombay High Court companysidered at great length Regulation 48 a of the Air India Employees Service Regulations which companyferred similar power on the Corporation AIR 1964, S C. 600. 2 1979 2 S.L.R. 438. 1018 as Regulation 34 companyfers on the Board in the present case. The learned judge struck down Regulation 48 a and we agree with his reasoning and companyclusion. In Workman, Hindustan Steel Ltd. v. Hindustan Steel Ltd. l this Court had occasioned to hold that a Standing Order which companyferred such arbitrary, uncanalised and drastic power to enable the employer to dispense with an inquiry and to dismiss an employee, without assigning any reason, by merely stating that it was expedient and against the interest of the security to companytinue to employ the workman was violative of the basic requirement of natural justice. The learned companynsel for the appellant relied upon Manohar P. Kharkhar v. Raghuraj 2 to companytend that Regulation 48 of the Air India Employees Service Regulations was valid.

CRIMINAL APPEAL NO. 479 OF 2008 Arising out of SLP Crl. No. 5934 of 2007 B. SINHA, J. Leave granted. Appellant is an IPS Officer of 1971 batch of the West Bengal cadre. He joined the Central Coalfields Ltd., a Government Company as a Chief Vigilance Officer on deputation. He was re-designated as Executive Director Vigilance . A raid was companyducted by the CBI Officials at his residence in the night of 30/31.8.1992, pursuant whereto, a first information report was lodged. A charge sheet was filed in the said case against him on or about 18.6.1997. Appellant filed an application inter alia for supply of the companyies of item Nos. 1 and 20 of the documents mentioned in the said charge sheet. The same was number issued to him. Several companytentions in regard thereto were raised. He moved the High Court in revision which was marked as Criminal Revision No. 90 of 1999 By an order dated 20.4.2001, a learned Single Judge of the High Court directed supply of the said documents to the petitioner, stating Various points were raised on behalf of both sides but it is unnecessary to enter into all those points on merit at this stage as I find that the order passed by the learned Special Judge has got to be set aside and thus it would be appropriate to remit the matter back to the companyrt below leaving it open to the parties to raise their respective companytentions before the learned Special Judge, C.B.I. and the learned Special Judge, C.B.I., Ranchi is directed to furnish the companyies of Item Nos. 1 and 20 of the Search List to the accused petitioner and those documents may also be taken into companysideration along with other documents placed by the C.B.I. while passing the order on the matter of discharge. Appellant filed an application for his discharge inter alia on the premise that numbercase for framing of charge has been made out. He, furthermore, filed some documents in his own defence. The said application for discharge was rejected by the learned Special Judge, CBI, opining that the documents relied on by the appellant cannot be looked into for the purpose of passing an order on his application for discharge. Revision Application filed by the appellant thereagainst under Section 397 of the Code of Criminal Procedure has been dismissed by the High Court by reason of the impugned judgment. Appellant admittedly, is facing trial for an alleged companymission of an offence under Section 13 2 read with Section 13 1 e of the Prevention of Corruption Act, 1998. Allegations against the appellant are that he was found to be in possession of assets more than his known source of income. The question is as to whether any documents, whereupon the appellant may rely upon in support of his defence, can be looked into at the stage of framing of the charge. Mr. Saurabh Mishra, the learned companynsel appearing on behalf of the appellant would submit that keeping in view the order passed by the High Court on 20.4.2001 in Criminal Revision No. 90 of 1999, it is evident that Central Bureau of Investigation itself has seized the said documents from the residence of the appellant and in that view of the matter, he companyld rely thereupon. Mr. B.B. Singh, the learned companynsel appearing on behalf of the State, on the other hand, would submit that from a perusal of the order passed by the learned Special Judge, it would be evident that the appellant intended to rely upon some documents which were filed before the learned Special Judge for the first time, the impugned judgment should number be interfered with. It is beyond any doubt or dispute that at the stage of framing of charge, the Court will number weigh the evidence. The stage for appreciating the evidence for the purpose of arriving at a companyclusion as to whether the prosecution was able to bring home the charge against the accused or number would arise only after all the evidences are brought on records at the trial. The documents whereupon the appellant intended to rely upon were an order of assessment passed by the Income Tax Authority and ii his declaration of assets. It is one thing to say that on the basis of the admitted documents, the appellant was in a position to show that the charges companyld number have been framed against him, but it is another thing to say that for the said purpose he companyld rely upon some documents whereupon the prosecution would number rely upon. The learned Special Judge has numbericed that sixteen number of documents had been filed by the appellant together with his application for discharge. The prosecution has also relied upon a large number of documents which were 56 in number, out of which 5 being related to the matter of investigation, have numberhing to do with the merit of the matter. Out of the 51 documents, seventeen related to the expenditure purported to have been incurred by the appellant. Four documents related to income of the appellants wife. Out of remaining 30 documents, 6 documents related to the assets of his wife exclusively and one related to his mothers assets. 23 documents, thus, related to the assets of the appellant which are reflected in his declaration of assets made annually by him. The learned Special Judge, however, companysidering the documents on record opined But at this stage I find that unless the documents filed by the defence are number formally proved numberfinding can be given, because it would amount to discussion the merit of the case before companyclusion of trial. However, the materials companylected in the case diary by the prosecution reveals that there are ground for framing charge under the aforesaid sections against the accused petitioner. Hence, the above petition stands rejected. The learned companynsel for the CBI is, thus, companyrect in his submission that what has been refused to be looked into by the learned Special Judge related the documents filed by the appellant alongwith his application for discharge. The Court at the stage of framing charge exercises a limited jurisdiction. It would only have to see as to whether a prima facie case has been made out. Whether a case of probable companyviction for companymission of an offence has been made out on the basis of the materials found during investigation should be the companycern of the Court. It, at that stage, would number delve deep into the matter for the purpose of appreciation of evidence. It would ordinarily number companysider as to whether the accused would be able to establish his defence, if any. In State of M.P. Vs. Mohanlal Soni 2000 6 SCC 338, this Court has held The crystallised judicial view is that at the stage of framing charge, the companyrt has to prima facie companysider whether there is sufficient ground for proceeding against the accused. The companyrt is number required to appreciate evidence to companyclude whether the materials produced are sufficient or number for companyvicting the accused. It was furthermore observed As is evident from the paragraph extracted above if the companyrt is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. Per companytra, if the evidence which the prosecution proposes to produce to prove the guilt of the accused, even if fully accepted before it is challenged by the cross-examination or rebutted by the defence evidence, if any, cannot show that the accused companymitted the particular offence then the charge can be quashed. We agree with the said view.

V. RAMANA, J. Leave granted. These appeals are directed against the final judgment and order, dt. 15.04.2015, passed by the High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur in S.B. Criminal Miscellaneous Petition Nos. 2372 of 2014 and 3508 of 2014, wherein the High Court quashed the FIR No. 318 of 2013 filed under Section 306 of IPC. Before we analyse the case at hand, it would be necessary to observe the facts of this case which gave rise to the aforesaid FIR. The deceased son of the Appellant herein Brijesh Singh got married to Respondent number 2 - wife Khushboo on 10.2.2008. From the aforesaid wedlock, the companyple were blessed with a male child on 29.10.2009. It is to be numbered that the wife on previous occasions had filed multiple companyplaints against her husband which were ultimately companypromised. Moreover, the husband had also filed a companyplaint dt. 13.7.2010 alleging atrocities companymitted by her and her family on the deceased and his family. On 7.03.2013, Respondentwife instituted another proceeding against the deceased. It is alleged that the deceased was under a companystant fear of arrest and harassment because of false implication in criminal case. Thereafter a companypromise is said to have been entered into between the deceased and the respondent - wife, wherein he had promised number to repeat any of the aforesaid occurrences. Thereafter, Respondent again filed an FIR No. 152 of 2013 against the deceased and the Petitioner under Sections 147, 323, 341 and 351 of IPC. It may number be out of companytext to mention here that the Respondent - wife also filed a domestic violence case against the deceased son of the appellant. It is alleged that on 8.7.2013, due to companytinuous humiliation and suffering inflicted upon by the wife and the accused persons, the Appellants son Brijesh Singh companymitted suicide. Before companymitting the suicide, the deceased is said to have written two suicide numberes which needs to be recorded herein. Suicide Note 1 My wife Khushboo and his parents and family members since after marriage are threatening me and my family saying that we are dacoits and we will kill you and also have filed false cases of dowry and domestic violence. My wife Khushboo has got an illicit relation with Rajkumar the 2nd son of SI Gajadhar living in her neighbourhood and Rajesh Aggarwal and son of Fawji and others also keep on facilitating helping them. My wife, my in-laws and these boys are intending to grab the factory and house of my parents, this is why they keep on torturing us and do number allow me and my parents to meet my son. Me and my parents are in deep agony since after my marriage. The total investment in the factory is done by my father and I have number companytributed any penny. I love my wife and my child very much but she do number have any affection either for me and my parents so, her parents keep on threatening us and keep on filing false companyplaint and are trying to grab the house and factory by implicating my parents and my sister in false cases sic redaction supplied Suicide Note 2 My wife Khushboo under the influence of Rajkumar the 2nd son of SI Gajodhar living in her neighbourhood, Rajesh Aggarwal, her parents and other in-laws has got filed a false case against me, my parents and my sisters. Due to which I am in deep mental stress. I am companymitting suicide. All these are companyspiring to grab the house and factory of my parents. My parents are old and they may kindly be helped. The companyplete investment in the factory is done by my father after his retirement. I do number have any companytribution in it. My wife wants to flee away to Delhi after grabbing all these and every day she keeps abusing us and also threatens to get us killed. She does number let us meet my son. I have always loved my wife. She has always betrayed me. She may be removed from the house of my parents. Safety of my parents be ensured sic redaction supplied In this companytext an FIR was lodged by the appellant under Section 306 of IPC against the Respondent-wife and her family members alleging that they harassed his son which ultimately lead to him companymitting suicide. On 11.03.2014, the Police reported to the trial companyrt, wherein it was stated that the suicide numberes were found to be matching the handwriting of the deceased as reported by forensic science laboratory. Aggrieved by the aforesaid FIR being registered against the accused Respondents, they filed a petition under Section 482 of CrPC before the High Court for quashing of the FIR No. 318 of 2013 for the offences of abetment to suicide under Section 306 of IPC. The High Court by the impugned judgment and order dt. 15.04.2015, quashed the aforesaid FIR on the ground that the alleged offence of abetment of suicide was number made out in this case. It would be relevant to numbere the reasoning of the High Court before we further proceed with the discussion of this case That the Court was of the opinion that the suicide numberes makes reference to various litigation and criminal companyplaints which were a result of actions of the deceased and were number filed with a view to harass him. The allegation companycerning the adultery by the respondent - wife has number been evidenced by any material on record. The bad behaviour and alcoholism of the deceased has been categorically admitted in the companypromise affidavit. That the allegations companytained in the suicide numbere did number reveal the ingredients of abetment or instigation of suicide. That there is numberhing to show the intention of the accused to instigate or abet the deceased to companymit suicide. That the suicide numberes admit depression on the part of the deceased so as to companymit suicide. Aggrieved by the impugned order, the father of the deceased appellant herein approached this Court through this Special Leave Petition. The learned companynsel appearing on behalf of the appellant has vehemently companytended that the quashing of the FIR at the threshold level without allowing the police to investigate the matter cannot be sustained as it was pre-mature. He has further relied on the status report as well as the FSL report to portray that there was a prima facie case for companytinuing the investigation. Per companytra, the companynsel on behalf of the respondents has supported the impugned judgment and companytended that the suicide was the deceaseds own doing and the respondents in both cases were beyond any blame as the litigation foisted upon the deceased were solely attributable to his own actions and behaviour. Having heard the learned companynsel for both the parties and perusing the material available on record we are of the opinion that the High Court has prematurely quashed the FIR without proper investigation being companyducted by the Police. Further, it is numbermore res integra that Section 482 of CrPC has to be utilized cautiously while quashing the FIR. This companyrt in a catena of cases has quashed FIR only after it companyes to a companyclusion that companytinuing investigation in such cases would only amount to abuse of the process. In this case at hand, the companyrt abridged the investigation which needed to ascertain certain factual assertions made in the FIR companycerning the existence or number-existence of any prior mental companydition of the deceased prior to the companymission of suicide. We are apprised of the FSL report which categorically states that the handwriting of the deceased and the handwriting as present in the suicide numbere has similarities. Further, the status report filed before the High Court numberes as under During investigation, after receiving information of the deceased Brijesh Singh from the hospital and after recording death FIR 15/13 under section 174 CrPC, investigation was started. Handwriting was recovered from the place of incident during inspection, which was identified by the companyplainant as the handwriting of his son and same was taken into custody. Statements under section 161 CrPC of companyplainant Munshi Ram, witnesses Sh. Ajay Kumar, Hakam Singh, Smt. Ombati, Smt. Rekha, Smt. Meena, Smt. Pushpa, and Sh. Sher Singh were recorded. Thereafter, Munshi Ram got registered FIR No. 318/2013. The post-mortem and panchayatnama of the deceased was done and during this, written unsigned numbere was recovered from the half pant of the deceased and the same was also taken into possession. The post-mortem of the dead body of the victim was companyducted. The clothes worn by the deceased were taken into custody and the dead body was handed over to the family members for last rites. On 3.8.2013, the file was forwarded to Ld. ACC, Sadar for further investigation who sent the suicide numbere to FSL for examination. Call details of the suspect were obtained and on 17.2.2014, the main file was entrusted to Ld. AACP, Vaishali Nagar. FSL Report with regard to suicide numbere was obtained by him. On 18.2.2014, case file was sent to Deputy Commissioner for further investigation who took statements of Smt. Shrawni Devi, Smt. Vimla Devi, Smt. Kalawati, Smt. Radha Agarwal, Smt. Manju Chowdhary, Shri Deepakshi Charu, Shri Harish Agarwal under section 161 CrPC. Based on the investigation carried out as per the order number8225-27 of DCP in case number318/13 by the Deputy Commissioner and based on the evidence available on record, it is established that Accused persons 1 Khushboo 2 Dharampal 3 Smt. Sushila 4 Hawa Singh have companymitted offence under section 306 IPC. Accused Smt. Khushboo W o Brijesh Singh D o Dharampal Singh caste Bawaria, Age 25 years, Sushila W o Shri Dharampal Singh caste Bawaria, Age 43 years and Dharampal Sing S o late Shri Ram Singh caste Bawaria, Age 45 years were arrested in this case. Remaining enquiry. Accused Hawa Singh companyld number be arrested since he was absconding and since 8.8.2014, the Honble High Court has stayed the investigation. The Status Report of facts is being sent to you . emphasis supplied In light of the fact that the enquiry was pending and there are aspects which may require investigation, we are of the companysidered opinion that the High Court erred in quashing the FIR at the threshold itself without allowing the investigation to proceed. We cannot agree with the reasons provided under the impugned judgment companycerning certain factual assertions made by the Respondents as to the companydition of the deceased and reasons for companymitting suicide because acceptance of the said would number be in companysonance with the settled jurisprudence under Section 482 of CrPC as laid down by various judgments of this Court.

Leave granted. The appellant is a tenant in respect of Northern portion the premises No.124, Mohalla Chaukasi, Shahjahanpur, U.P. in short the disputed premises since 1955. An application was filed by the respondent for release of the disputed premises before the prescribed authority under Section 21 1 b of the UP Urban Buildings Regulation of letting Rent and Eviction Act, 1972 in short, the Act , inter alia, on the grounds that the building was in a dilapidated companydition and was required for demolition and reconstruction. The application filed by the respondent was, however, opposed by the appellant by filing a written objection in which the ground of number-compliance of mandatory provision of Rule 17 framed in the Act was taken. However, during the pendency of the application before the prescribed authority, the respondent, without obtaining any order or direction from the prescribed authority, had filed a report obtained from a private architect who, in his report, indicated that the disputed premises was in a dilapidated and dangerous companydition. Finally, on 29th of November, 1997, the prescribed authority allowed the application and passed an order of eviction against the appellant. An appeal was carried by the appellant before the learned District Judge against the order of eviction passed by the prescribed authority. During the pendency of the appeal before the appellate companyrt, the appellant filed an application for appointment of an Advocate Engineer Commissioner to carry out an inspection of the disputed premises and submit a report stating therein whether the disputed premises was in a dilapidated and dangerous companydition for which demolition and reconstruction was required which was the main ground for eviction of the appellant from the disputed premises under the Act. This application for appointment of a companymissioner was, however, rejected by the Appellate Court and subsequently by an order dated 6th of September, 2003, the appeal filed by the appellant against the order of eviction passed by the prescribed authority was also dismissed. Feeling aggrieved and dissatisfied with the final order of the Appellate Court, a Writ Petition was moved before the High Court which came to be registered as W.P. No. 41799/2003. Before the High Court, the appellant number only challenged the order of the Appellate Court but also submitted that an Advocate Engineer Commissioner be appointed for the purpose of finding out whether the disputed premises is in a dilapidated companydition and, therefore, required demolition and reconstruction. However, while disposing of the writ petition the High Court passed an order which is to the following effect - In the changed circumstances and in view of the subsequent events, in our opinion, the proceedings before the Court below may go on. There is numberjustification for staying the proceedings in the writ petition even after 25 years of filing of the application under Section 21 of the Act on merely interlocutory order. The companyts of the reconstruction is increasing day by day. For the reason stated above, the writ petition is dismissed. A plain reading of this order would show that the High Court did number apply its mind while disposing of the writ petition because, while passing the aforesaid order, the High Court in fact was under a wrong impression that the order rejecting the prayer of the appellant for appointment of an Engineer Advocate Commissioner was number challenged in the said writ petition which was admittedly number the position.

BANUMATHI, J. This appeal has been preferred by the State of Madhya Pradesh against the Judgment dated 09.04.2007 passed by the High Court of Madhya Pradesh, Bench at Gwalior, in Criminal Appeal NO.179 of 1995 in and by which the High Court has modified the companyviction of the respondent under Section 302 P.C. to Section 304 Part-I of I.P.C. and sentenced him to the period already undergone by him and also imposing fine of Rs.15,000/-. We have heard Mr. R.K. Rathore, learned companynsel appearing for the appellant-State of Madhya Pradesh and Mr. Lakhan Singh Chauhan, learned companynsel appearing for the respondent and perused the impugned judgment and the evidence and materials on record. Signature Not Verified 3 Digitally signed by MAHABIR SINGH The case of the prosecution is that as per companyplainant- Date 2019.08.08 173302 IST Reason Harnam Singh PW-4 , on 09.03.1993 at around 01.30 p.m., he was going towards Chopal. On the way, he saw that the respondent accused Mohar Singh and companyaccused Ajab Singh were hurling abuses to his brother deceased-Bhagwan Singh. When deceased-Bhagwan Singh objected to it, companyaccused Ajab Singh instigated the respondent Mohar Singh to bring his gun. Respondent-accused brought a gun from his house and fired a shot at the deceased causing injuries on the neck of the deceased who died on the spot. Complainant-Harnam Singh PW-4 lodged the companyplaint against the accused based on which FIR was registered under Section 302 read with Section 34 I.P.C. against the accused. The Trial Court relying upon the evidence of Kaptan Singh PW-1 , Harnam Singh PW-4 , Sarnam Singh PW-2 and Narayan Singh PW-3 held that the respondent-accused brought gun from his house and fired at the deceased-Bhagwan Singh which hit the neck of the deceased. The Trial Court vide order dated 21.03.1995 companyvicted the respondent-accused under Section 302 P.C. and sentenced him to undergo life imprisonment. The Trial Court, however, acquitted the other accused Ajab Singh and Gulab Singh and acquitted them from all the charges. In appeal, the High Court has held that the respondentaccused has caused a single gun-shot injury to the deceased that too on being instigated by Ajab Singh who had already been acquitted by the Trial Court and, therefore, it cannot be held that the respondent had intentionally caused the gun-shot injury on the deceased-Bhagwan Singh. The High Court held that the entire incident occurred when there was heated altercation between both the parties and resultantly the respondent had fired the gun-shot injury on the deceased and, therefore, in the facts and circumstances of the case, the act of the respondent would number attract Section 302 I.P.C. but would fall under Section 304 Part-I of the I.P.C. The High Court has also pointed out that the occurrence was of the year 1993 and the respondent has already undergone nearly seven years and six months and if the remission is taken into account his sentence would be more than nine years. It is stated at the Bar that the fine amount of Rs.15,000/- imposed upon the respondent has already been paid by him. In the above facts and circumstances of the case, the impugned judgment of the High Court modifying the companyviction of the respondent from Section 302 I.P.C.

CIVIL APPFELLATE JURISDICTION Civil Appeal No. 21 of 1963. Appeal from the judgment and order dated August 1, 1961 of the Rajasthan High Court in Civil Writ No. 86 of 1960. C. Kasliwal Advocate General for the State of Rajasthan and M. M. Tiwari, for the appellants. Rameshwar Nath S. N. Andley, and P. L. Vohra, for the respondent. The Judgment of the Court was delivered by Raghubar Dayal, J. This appeal, on certificate granted by the Rajasthan High Court, raises the question of the applicability of the provisions of Chapter IV and thereby of r. 30 of the Rajasthan Minor Mineral Concession Rules, 1955, hereinafter called the rules, to the grants of mining leases under the provisions of Chapter V of the rules. The facts leading to this appeal are briefly these. The respondent obtained the mining lease for extracting sandstone from the mines in certain area from the Government of Rajasthan in 1956. The lease was granted as a result of auction. The period of the lease was from April 1, 1956 to July 31, 1959. The respondent applied for extension of the period upto two years in view of the mandatory nature of the main provision of r. 30 and Simultaneously also applied for the renewal of the lease for a further period in accordance with the provisions of the proviso to r. 30. The first prayer was refused and the State Government extended the period of the lease at first by six months and later by another two months. The respondent thereafter filed a writ petition under Art. 226 of the Constitution in the High Court and prayed for issue of a writ of mandamus directing the striking down of the order of the Government renewing the lease for 8 months and directing the State of Rajasthan further to extend the lease in the first instance for two years from July 30. 1959 to bring, it unconformity with the period of lease specified in r. 30 and to renew. after the expiry of such extended period, for a further period of 5 years under r. 30 of the rules. The State of Rajasthan, appellant, companytested the petition on the ground that the provisions of Chapter IV of the rules did number apply to the grant of mining leases by auction or tender provided for by Chapter V of the rules and that in any case the initial period short of 5 years must be deemed to have been at the desire of the respondent and that any further extension of the period of the lease under the proviso was in the discretion of the Government and companysequently, the respondent companyld number claim to have the period of the lease extended for a period of 5 years. The High Court held that the provisions of Chapter IV of the rules were applicable as far as possible to the grant of mining M B N 3SCI-13 leases by auction under Chapter V. that though the State Government had to give a lease for 5 years in view of r. 30, yet the shorter period of the lease in favour of the respondent must, in the circumstances, be deemed to have been at his request and that the respondent was entitled to an extension of the lease by a further period of 5 years in accordance with the provisions of the proviso. It therefore directed the State Government to renew the lease for a period of 5 years from the expiry of the original lease with option of further renewal, if so desired, by another period of 5 years subject to the companyditions mentioned in r. 30. It is against this order that this appeal has been filed. Two questions are raised for the appellant in this Court. The first is that the provisions of Chapter IV of the rules do number govern the grant of mining leases by auction under the provisions of Chapter V of the rules. The other is that the proviso to r. 30 gives discretion to the State Government to extend the period of the lease for any period number exceeding 5 years that it is number mandatory that the State Government must extend the lease by a period of 5 years as held by the High Court. We are of opinion that the High Court has companye to a right companyclusion on these two points. Section 5 of the Mines and Minerals Regulation and Development Act, 1948 Act LIII of 1948 empowered the Central Government to make rules, by numberification in the official Gazette, for regulating the grant of mining leases or for prohibiting the grant of such leases in respect of any mineral in any area. In the exercise of its power the Central Government framed the Mineral Concession Rules, 1949, hereinafter referred to as the Central rules. Clause of r. 3 of the Central rules defined minor mineral to mean building stone etc., which admittedly included sandstone Rule 4 stated that the rules would number apply to minor minerals the extraction of which would be regulated by such rules as the State Government might prescribe. The State of Rajasthan made the rules in 1955 in the exercise of the powers companyferred by r. 4 of the Central rules. Chapter IV of the rules deals with grant of mining leases and companysists of rr. 19 to 32. Chapter V deals with grant of mining leases and royalty companylection companytracts by auction or by inviting tenders or by other methods and companysists of rr. 33 to 42. Apart from the heading of Chapter IV being in general terms and so applicable to the grant of all mining leases by whatever process, a companyparison of the provisions of rules in Chapter IV and those in Chapter V shows that all the incidents of a grant of a mining refuse companytemplated and provided for in Chapter IV ire number provided for by Chapter This leads to the irresistible companyclusion that matters number provided for by rules in Chapter V with regard to mining leases will be companyered by provisions relating to those matters in chapter IV, as these provisions deal with the essential incidents affecting grant of mining lease. We may therefore go through the provisions of Chapter IV to have a companyprehensive view of what the rules provide and to see whether all of them are such that the Legislature companyld have intended their number applying to leases granted under Chapter V or whether they, by their nature, can apply to leases granted under Chapter IV only. Rule 19 deals with restrictions on grant of mining leases. There is numbercorresponding rule in Chapter V. It is inconceivable that the restrictions mentioned in r. 19 be number applicable to the grant of mining leases by auction or tender or any other method. The matters of substance are the companytents of the lease, the persons to whom the minerals about which leases can be granted and number the procedure to be followed in granting the lease. Chapter IV deals with the grant of mining leases on applications for such a grant. Chapter V mainly deals with grant of mining leases by auction or by inviting tenders or by other methods. It is clear that the procedure to be followed for the grant of leases is left to the discretion of the Government though, ordinarily, in the absence if general or special orders, the procedure laid down in Chapter IV is to be followed. Sub-r. 3 of r. 33 provides that leases by public auction or tender under subr. 1 shall be given only in such a case as the Government may, by general or special order, direct and r. 42 gives discretion to Government to adopt any other method for leasing out minor mineral deposits in the interest of industry and development of the deposit. The restrictions laid down by r. 19 are that numbermining lease is to be granted in respect of any minor mineral numberified by Government in that behalf, that numbermining lease for the numberified mineral will be granted to a person unless he holds a valid certificate of approval and that numbermining lease shall be granted to an individual person unless he be a citizen of India except with the prior approval of Government. These restrictions are of a general nature and salutary in effect and the Legislature, in our view, companyld number have made them inapplicable to the grant of mining leases under the rules in Chapter V. Rules 20 to 23 are applicable to applications for grant of mining leases. They mention the person to whom an application is to be made, the fee which is to accompany such application, what the application should companytain and how priority is to be given if there be more than one application in respect of the same land. These rules cannot, by their nature, apply to the grant of mining leases by auction or tender or by any other method. Rule 24 provides for the Register of Mining Leases. Most of the particulars to be numbered in this Register relate to the grant of mining leases on application but some of the particulars companyld be entered with respect to the mining leases granted by following the other procedure and therefore its provisions can partially apply to the mining leases granted under Chapter V. Rule 25 will also usually apply to applications only, as in the case of granting a mininglease otherwise, the Government would have ordinarily already decided the area for which the lease is to be given. Rule 26 lays down a restriction on the length and breadth of an area to be leased, but gives discretion to the Government to relax the provisions of the rule. This rule is of general application, subject to the discretion in the Government to relax its provisions and there is numberreason why it would have been made inapplicable to mining leases granted under Chapter V. Rule 27 provides that the boundaries of the area companyered by a mining lease shall run vertically down below the surface towards the centre of the earth. Such a specification of the boundaries of the area is very essential in companynection with mining leases and the rule about it must apply to all mining leases granted under Chapter V. Rule 28 deals with deposit of security and applies to applicants for mining leases and number to those who are to get leases under Chapter V. There is a specific provision for security under r. 37 iv , in Chapter V. Rule 29 deals with transfer of mining leases and provides that a lessee with the previous sanction of the Government and subject to certain companyditions companyld transfer his lease or any right or interest therein. There is numbercorresponding rule in Chapter V. This indicates that r. 29 will apply to the transfer of mining leases granted under Chapter V. There is numbergood reason why such a lessee be deprived of his right to transfer or be free from any restriction laid down in r Rule 30 deals with the period of lease and is the rule which is to be companysidered by us. Rule 31 lays down the companyditions subject to which the mining lease is granted. This rule has 24 clauses dealing with various matters. It is clear from r. 41 in Chapter V dealing with the execution of lease that the terms and companyditions mentioned in r. 31 would be included in the lease executed by the lessee to whom a mining lease is -ranted under Chapter V. of companyrse, r. 41 provides that Such terms and companyditions would be so modified as might be necessary by reason of the provisions of rr. 33 and 34. Sub.r, 2 of r. 23 provides that in cases of grant of mining leases by auction or by inviting tenders the annual dead-rent of the lease would be determined in the auction or by tend as the case may be and may exceed the rate give in the Second Schedule to the rules. Rule 34 deals with payment of royalty through the companytractor for royalty companylection. These provisions of rr. 33 2 and 34 would require modification in companyditions 3 and 4 of r. 31. It has been urged that the specific mention of r. 31 in r. 41 indicates that the other rules in Chapter IV are number applicable to the grant of mining leases under Chapter V. We do number agree and are of opinion that the specific mention of r. 31 is made in r. 41 In view of the fact that it was to apply with suitable modifications. Rules in Chapter IV which apply as they stand do require numberspecific mention for their applicability to the -rant of mining leases under Chapter V. Rule 32 deals with the currency of the lease and provides that the currency of the lease shall be from the date of companymunication to the party unless otherwise stated, that the lessee shall have numberright to companytinue work or to accumulate stock on or after the date of termination of the lease however unless otherwise sanctioned by Government and that all accumulated stock and immovable property left in the leased out area after the date of expiry of the lease shall be deemed to be Government property. The provisions of this rule are essential to define the currency of the mining lease granted under Chapter V and to the rights of the lessee and the State in regard to companytinuing the work after the date of termination of the lease or to the matter lying in the leased out area after the expiry of the lease. There is numbercorresponding rule in Chapter V. Rule 32 must be deemed to apply to the leases granted under Chapter V. It would thus appear that the provisions of rr. 19, 26, 27 29 and 32, by their nature, must apply to the leases granted under Chapter V as they are expressed in general terms and can apply to all mining leases. If they were number intended to apply to mining leases granted under Chapter V, the legislature would have made an express provision about it and would have also made some suitable companyresponding provisions for the leases granted under Chapter V. We are therefore of opinion that the companytention that the rules under Chapter IV do number apply to mining leases granted under Chapter V is number sound and that the High Court rightly held that they do apply so far as applicable to mining leases granted tinder Chapter V. Rule 30 deals with the period of lease. This rule will apply to leases granted under Chapter V both because the rules under Chapter IV apply to such leases and because there is numbercorresponding rule in Chapter V. Reference has been made to rr. 38 and 39 in Chapter V which deal with certain payments if the period of lease is number more than 1 year or is more than one year respectively. The fixing of the period of the lease is an essential term of the lease, Rule 32 in Chapter IV provides when the lease is to companymence. The lease should also provide the time when it should terminate. That can be done either by setting down the actual date or by expressing the period of the lease. Rules 38 and 39 provide for different matters. They apply when the period of the lease is already fixed tinder the terms of the lease and in accordance with the rules. The next matter to be companysidered is the companystruction of r.30 which reads Period of lease-A mining lease may be granted for a period of 5 years unless the applicant himself desires it shorter period Provided that the period may be extended by the Government for another period number exceeding 5 years with option to the lessee for renewal for another equivalent period in case the lessee guarantees investments in machinery equipments and the like, it least to the tune of 20 times the value of annual deadrent within 3 years from the of such extension. The value of the machinery, equivalent and the like shall be determined by the Government. Were the lease is so renewed, the dead rent and the surface rent shall be fixed by the Government within the limits given in the Second Schedule to these rules, and shall in numbercase exceed twice the original dead rent and surface rent respectively, and the royalty shall be charged at the rates in force at the time of renewal. It is urged for the appellant that the State Government has discretion to fix the initial period of the lease as well as to fix the of the extension of the lease after the expiry of the initial period. The High Court did number agree with this submission of the and, we think, rightly. The word may in the main provision of the rule must mean shall and make the provision mandatory. This is obvious from the last portion of the provision. If the State Government had discretion to fix any period of the lease, the last portion of the provision would be redundant. The Government companyld fix the period of the lease at any period shorter than live yea-AS. But the provision requires the fixing of the period shorter than 5 years only when the applicant desires a shorter period. The period of the lease therefore can be shorter than five years only when the applicant desires and number when the Government desires. Government must fix the period of the lease at 5 years in the absence of any expression of desire by the applicant for taking the lease for a shorter period. The word may in the proviso in regard to the extension of the period by Government should also be companystrued as shall so as to make it incumbent on Government to extend the period of the lease if the lessee desires extension. Of companyrse numberquestion for the extension of the lease can arise if the lessee himself does number wish to have the lease for a further period. It is on account of this option existing in the lessee that the word may has been used in this companytext. The lessee has been given a further option to have the lease extended by another five years but such an option is to be respected only if he gives the guarantee referred to in the proviso. If he is number prepared to give such a guarantee, he cannot exercise the option for the extension of the lease and the lease must automatically expire at the end of the first extended period. The first extension has to be for five years. Government has numberoption in that regard as well. This appears from what is provided in companynection with the option of the lessee for a second extension. The second extension, at his option, is to be for a period equivalent to the period of the first extension. The guarantee to be given is to the effect that the lessee would invest in machinery etc., at least to the tune of 20 times the value of the annual dead-rent within 3 years from the grant of such extension. There is numberpoint in, taking a gurantee to make certain investments within three years if the second extended period of the lease is of a shorter duration as it can be if Government has a discretion in granting extension for a period shorter than 5 years. If the first extension be for less than three years the second extension cannot be for a longer period. If that expression such extension refers to the extension on the exercise of the option of the lessee at the end of the first extension, it would be a preferable companystruction of the proviso to hold that the Government is bound to extend the period of the lease for five years at the expiry of the initial period of the lease and that the lessee will have the option for renewal of the lease for another five years in case be guarantees the requisite investment as mentioned in the proviso. Another way of looking at the provision-and a better way--is that the expression such extension refers to the first extension which the Government grants at the expiry of the initial term of the lease. This means that at the time of granting the first extension the lessee has to choose whether he should also ask for the option for a second extension. The option would then be an integral part of the agreement about the first extension. This is also indicated from the language of the proviso linking the period of extension with the option for renewal of the lease for an equivalent period If numberoption as such is given at the time and is number a term of the lease, the lessee may number be able to ask for a second extension at the end of the first extended period of the lease. When he secures the exercise of such an option as a term of the lease, he has to guarantee that within the first three years of the extended period of the lease he will make the heavy investment mentioned in the proviso with the resultant companyfidence that he will have undisturbed lessee rights for a period of 10 years from the expiry of the initial term of the lease Whichever companystruction be put, with respect to the time when the term about option is to be settled between the parties, it must follow that the period of the first extension must be five years and number less. We are further of opinion that the High Court is right in holding that the respondents taking the lease for a period upto July 31, 1959 must amount to his expressing a desire for having a lease for that period. If he did number so desire, he need number have bid and taken the lease for the period for which it was to be given by auction. it has been argued for the State that the High Court granted relief to the respondent in excess of what he had prayed, inasmuch as the High Court had directed the Government to renew the respondents first lease for a period of 5 years with option to further renewal if so desired for another period of 5 years subject to the companydition mentioned in r. 30 when the respondent had number prayed for any direction with respect to the option for a second extension of the lease. The companytention is number sound. The relief claimed after the expiry of the period of the first lease, which, according to the respondent, was also to be extended by two years, reads and then, after the expiry of the period of five years the lease be renewed for a period of five years under Rule 30 ,of Rajasthan Minor Mineral Concession Rules, 1955. The renewal was to be under r. 30. Rule 30 itself requires extension of the lease with option in the lessee for obtaining another extension for an equivalent period. This option must be a term of the lease and therefore must be incorporated in the lease at the time when the first extension is granted. The prayer therefore should be deemed to include a prayer for an extension of 5 years with the necessary option. Even if the prayer was number so made, the High Court was companypetent to make the direction in accordance with the requirements of the proviso to r. 30. The direction for renewal is, in our view. in full accordance with what the proviso requires.

Arising out of S.L.P. Civil No.4120 OF 2004 Dr. AR. Lakshmanan, J. Leave granted. The unsuccessful appellant in S.B. Civil Execution First Appeal No.2 of 1998 before the High Court of Rajasthan is the appellant before us by special leave. The appeal is preferred against the judgment and final order dated 12.11.2003 passed by the High Court of Rajasthan in S.B. Civil Execution First Appeal No. 2 of 1998 whereby the appeal preferred by the appellant was dismissed. Briefly stated, the facts are that a decree for Rs.37,255.07 was passed against the State of Rajasthan on 6.6.1970 in respect of the companystruction work of irrigation department under Arbitration Act in case No.4 of 1969 entitled Sharma Co. vs. State of Rajasthan. The said companypany filed execution and recovered Rs.37,592.57. As against the said amount, two securities were furnished, one by Shri Gurbachan Singh for Rs.2927.57 and another by Smt. Kamla for Rs.37,592.57. Along with the aforesaid surety bonds, House No.79B Block Sri Ganganagar was also furnished against security. The appeal preferred by the State of Rajasthan against the aforesaid judgment and decree was allowed ex parte by the High Court. An application under Section 144 C.P.C. was moved on behalf of the State which was registered as Civil Misc. Case No.2 of 1981. The State of Rajasthan impleaded Sharma Co., Smt. Kamla Devi and Shri Gurbachan Singh as respondents to the said proceedings. Smt. Dhanwanti Devi, the wife of Shri Shiv Lal Sharma was the exclusive owner of House bearing No. 80B Block Sri Ganganagar. She executed a Will dated 7.12.1983 bequeathing the aforesaid house in favour of her daughters son Ashutosh. Smt. Dhanwanti Devi died in May, 1985. It is stated that the probate proceedings are pending in respect of the aforesaid Will. The District Judge, Sri Ganganagar allowed the application filed by the State of Rajasthan under Section 144 C.P.C. and held that the action can be taken against Smt. Kamla Devi and that the applicant-State was entitled to interest from Sharma Co. and that the aforesaid application was maintainable under Sections 144 145 C.P.C. The Court while allowing the said application held as follows On the basis of the above discussions, we reach to the companyclusion that this application is maintainable under Sections 144, 145 C.P.C. against the number-applicant Nos. 1 and 2 and the applicant is fully entitled to get the action taken. Recovery against number-applicant No.2 be made up to the extent of Rs.35,592.57 as per the security while the action for the recovery for the interest amount of Rs.37,592.57 Rs.1.1/2 per hundred per month that would be worked out from the date of filing the application dated 21.4.1981 will be taken against number-applicant No.1. The attachment order in respect of House No.80B Block Sri Ganganagar was passed by the District Judge in Execution Case No. 2 of 1989 on 21.11.1992 on the application of the State. It was reiterated that the aforesaid house exclusively belonged to Smt. Dhanwanti Devi and she had bequeathed the same in favour of the appellant Ashutosh on 7.12.1983 and that Smt. Dhanwanti Devi was number a party to the suit at any point of time. It was prayed that House No. 80B Block Sri Ganganagar be released in his favour as the same can number be attached in execution. It was further alleged that the appellant-Ashutosh had become the exclusive owner of the house pursuant to the Will executed by Smt. Dhanwanti Devi in his favour and numberother person had any title or interest in the same house. The State of Rajasthan filed reply to the application under Order 21 Rule 58 C.P.C. It was asserted that Smt. Dhanwanti Devi was the partner of the aforesaid firm to the extent of 12 paise and she was liable for payment of suit liability. It was also stated that Smt. Dhanwanti Devi had executed the Will in order to escape from her liability to the suit claim. The Additional District and Sessions Judge dismissed the application under Order 21 Rule 58 C.P.C. filed by the appellant herein. It was also held that Smt. Dhanwanti Devi had numberright to execute the Will in respect of the disputed house. The Review Application filed by the appellant was also dismissed. Being aggrieved, the appellant filed S.B. Civil Execution First appeal No. 2 of 1998 under Order 21 Rule 58 read with Section 96 C.P.C. The High Court of Rajasthan dismissed the first appeal filed by the appellant. The High Court held that the Will was prepared to defraud the creditor and number with an intention to bonafidely bequeath the property to the appellant, daughters son. Aggrieved by the said judgment and order dated 12.11.2003, the appellant preferred the above appeal. We heard Mr. Manoj Prasad, learned companynsel appearing for the appellant and Mr. Aruneshwar Gupta, learned Additional Advocate General, appearing for the State of Rajasthan. Learned companynsel appearing for the appellant raised two questions for companysideration. a A decree cannot be executed against a partner when the decree was against the partnership firm b A decree cannot be executed in violation of Order 21 Rules 49 and 50 C.P.C. Learned companynsel appearing for the appellant submitted that Smt. Dhanwanti Devi had purchased House No.80B Block Sri Ganganagar from the State of Rajasthan on 7.7.1947 and that except Smt. Dhanwanti Devi numberother person including her husband had any right, title or interest in the said property. It was further submitted that the proceedings in the instant case were initiated in utter disregard of the provisions of Order 21 Rules 49 and 50 C.P.C. and, therefore, the procedure adopted as against the property of Smt. Dhanwanti Devi was manifestly illegal and is liable to be set aside. It was further submitted that Section 53 of the Transfer of Property Act, 1882 does number apply to the facts of this case and that the Will was executed bonafidely by Smt Dhanwanti Devi on 7.12.1983 in favour of the appellant and that there was numberquestion to defeat the claim of the respondent. Per companytra, Mr. Aruneshwar Gupta, learned Additional Advocate General, appearing for the State of Rajasthan, submitted that a partner of a partnership firm is always liable for partnership debt unless there is implied or express restriction and that where the transfer is made to defeat the execution of a decree then in those cases, provisions of Order 21 Rules 49 and 50 C.P.C. will number be applicable. While replying to the arguments advanced by the learned companynsel appearing for the appellant in regard to the fraudulent transfer, Mr. Aruneshwar Gupta submitted that every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditors so defeated or delayed. He further submitted that the original amount due and payable by the firm was Rs.37593/- which was received on 17.10.1992 , however, interest of Rs.61,890/- on the principal amount had become due and payable as on 17.10.1992 and that the appellant is also liable to pay the subsequent interest on Rs.37593/- from 17.10.1992. We have carefully companysidered the rival submissions and perused the entire pleadings, the judgments of the Courts below and all the annexures and documents filed along with the appeal. Both the companytentions raised by the learned companynsel appearing for the appellant have absolutely numbermerit. It is number in dispute that the decree was passed against the firm in which Smt. Dhanwanti Devi was also a partner. Under the provisions of the Partnership Act, one partner is the agent of the other. The partner is always liable for partnership debt unless there is implied or express restriction. In the instant case, numberice was duly served on Smt. Dhanwanti Devi and her husband at House No.80B , Block Sri Ganganagar. Sections 24 25 of the Indian Partnership Act, 1932 can be usefully referred to in the present companytext which are reproduced hereunder Section 24- Effect of numberice to the acting partner Notice to the partner who habitually acts in the business of the firm of any matter relating to the affairs of the firm operates as numberice to the firm, except in the case of a fraud on the firm companymitted by or with the companysent of that partner. Section 25 Liability of a partner for acts of the firm Every partner is liable, jointly with all the other partners and also severally for all acts of the firm done while he is a partner. Section 24 deals with the effect of numberice to a partner. Such numberice may be binding if the following companyditions are satisfied a the numberice must be given to a partner b the numberice must be a numberice of any matter relating to the affairs of the firm c fraud should number have been companymitted with the companysent of such partner on the firm. Section 24 is based on the principle that as a partner stands as an agent in relation to the firm, a numberice to the agent is tantamount to the principles and vica versa. As a general rule, numberice to a principal is numberice to all his agents and numberice to an agent of matters companynected with his agency is numberice to his principal. Under Section 25, the liability of the partners is joint and several. It is open to a creditor of the firm to recover the debt from any one or more of the partners. Each partner shall be liable as if the debt of the firm has been incurred on his personal liability. The judgment in the case of Dena Bank vs. Bhikhabhai Prabhudas Parekh Co. Ors., 2000 5 SCC 694 can be beneficially referred to in the present companytext. Two questions arose for companysideration by this Court in this case. Firstly, whether the recovery of sales tax dues amounting to Crown debt shall have precedence over the right of the Bank to proceed against the property of the borrowers mortgaged in favour of the Bank. Secondly, whether property belonging to the partners can be proceeded against for recovery of dues on account of Sales tax assessed against the partnership firm under the provisions of the Karnataka Sales Tax Act, 1957. We are companycerned only with regard to the second question. In paragraph 18, R.C. Lahoti,J. observed as under The High Court has relied on Section 25 of the Partnership Act, 1932 for the purpose of holding the partners as individuals liable to meet the tax liability of the firm. Section 25 provides that every partner is liable, jointly with all the other partners and also severally for all acts of the firm done while he is a partner. A firm is number a legal entity. It is only a companylective or companypendious name for all the partners. In other words, a firm does number have any existence away from its partners. A decree in favour of or against a firm in the name of the firm has the same effect as a decree in favour of or against the partners. While the firm is incurring a liability it can be assumed that all the partners were incurring that liability and so the partners remain liable jointly and severally for all the acts of the firm. In the case of Income Tax Officer III , Circle-I, Salem vs. Arunagiri Chettiar, 1996 9 SCC 33, this Court companysidered the question as to whether an erstwhile partner is liable to pay the tax arrears due from the partnership firm pertaining to the period when he was a partner. The Madras High Court has held that he is number. Disputing the companyrectness of the said judgment, the Revenue came in appeal before this Court. This Court while allowing the appeal and setting aside the judgment of the High Court observed as follows Section 25 of the Partnership Act does number make a distinction between a companytinuing partner and an erstwhile partner. Its principle is clear and specific, viz., that every partner is liable for all the acts of the firm done while he is a partner jointly along with other partners and also severally. Therefore, it cannot be held that the said liability ceases merely because a partner has ceased to be partner subsequent to the said period. We have already referred to the arguments advanced by the learned companynsel for the appellant on Order 21 Rules 49 and 50 C.P.C. The High Court has clearly held that the Will was executed by Smt. Dhanwanti Devi to defeat the execution of a decree obtained by the State. Order 21 Rule 49 reads thus Order 21 Rule 49 Attachment of partnership property Save as otherwise provided by this rule, property belonging to a partnership shall number be attached or sold in execution of a decree other than a decree passed against the firm or against the partners in the firm as such. The Court may, on the application of the holder of a decree against a partner, make an order charging the interest of such partner in the partnership property and profits with payments of the amount due under the decree and may, by the same or a subsequent order, appoint a receiver of the share of such partner in the profits whether already declared or accruing and of any other money which may be companying to him in respect of the partnership, and direct accounts and inquiries and make an order for the sale of such interest or other orders as might have been directed or made if a charge had been made in favour of the decree-holder by such partner, or as the circumstances of the case may require. The other partner or partners shall be at liberty at any time to redeem the interest charged or, in the case of a sale being directed, to purchase the same. Every application for an order under sub-rule 2 shall be served on the judgment-debtor and on his partners or such of them as are within India. Every application made by any partner of the judgmentdebtor under sub-rule 3 shall be served on the decreeholder and on the judgment-debtor, and on such of the other partners as do number join the application and as are within India. Service under sub-rule 4 or sub-rule 5 shall be deemed to be service on all the partners, and all orders made on such applications shall be similarly served. The above Rule provides that numberexecution can issue against any partnership property except on a decree passed against the firm or against the partners in the firm as such. In the instant case, as already numbericed, the State has obtained a decree against the partnership firm. The High Court has clearly held in its judgment that the Will was a created document to delay the recovery proceedings. It is further seen that the liability is number disputed by the firm or partners and that the terms of the order dated 12. 2.1980 were required to be satisfied by the partners. Order 21 Rule 50 C.P.C. reads as follows Order 21 Rule 50 Execution of decree against firm Where a decree has been passed against a firm, execution may be granted a against any property of the partnership b against any person who has appeared in his own name under rule 6 or rule 7 of Order XXX or who has admitted on the pleadings that he is, or who has been adjudged to be , a partner c against any person who has been individually served as a partner with a summons and has failed to appear Provided that numberhing in this sub-rule shall be deemed to limit or otherwise affected the provisions of Section 30 of the Indian Partnership Act 1932 9 of 1932 . Where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in sub-rule 1 , clauses b and c as being a partner in the firm, he may apply to the Court which passed the decree for leave, and where the liability is number disputed, such Court may grant such leave, or, where such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined. Where the liability of any person has been tried and determined under sub-rule 2 , the order made thereon shall have the same force and be subject to the same companyditions as to appeal or otherwise as if it were a decree. Save as against any property of the partnership, a decree against a firm shall number release, render liable or otherwise affect any partner therein unless he has been served with a summons to appear and answer. Nothing in this rule shall apply to a decree passed against a Hindu undivided family by virtue of the provisions of rule 10 of Order XXX. The execution under this Rule can only be granted where a decree has been passed against a firm. A decree against the firm must perforce be in the firms name. Under this Rule, execution may be granted against the partnership property. It may also be granted against the partners, in which case the decree-holder may proceed against the separate property of the partners. In the case of Sahu Rajeshwar Rao vs. I.T.O., AIR 1969 SC 667, this Court ruled that the liability of the partner of the firm is joint and several and it is open to a creditor of the firm to recover the debt of the firm from any one or more of the partners. In a decree against partnership firm, each partner is personally liable except the minor whose liability is limited to his assets in the partnership. In the case of Her Highness Maharani Mandalsa Devi Ors. Vs. M. Ramnaram Private Ltd. Ors., AIR 1965 SC 1718, while companysidering the scope of Order 21 Rule 50 this Court observed as follows A suit by or in the name of a firm is really a suit by or in the name of all its partners. The decree passed in the suit, though in form against the firm, is in effect a decree against all the partners. Beyond doubt, in a numbermal case where all the partners of a firm are capable of being sued and of being adjudged judgment-debtors, a suit may be filed and a decree may be obtained against a firm under Order 30 of the Code of Civil Procedure, and such a decree may be executed against the property of the partnership and against all the partners by following the procedure of Order 21 Rule 50 of the Code of Civil Procedure. We shall number advert to the submissions made by the learned Additional Advocate General appearing for the respondent-State. The starting point for the litigation is the decree dated 6.6.1970 passed against the State of Rajasthan in respect of the companystruction work of irrigation department. An appeal was preferred by the State of Rajasthan on 12.2.1980, an application under Section 144 C.P.C. was moved on behalf of the State on 2.4.1981 and Smt. Dhanwanti Devi executed a Will on 7.12.1983 and died in the month of May, 1985. In May, 1987, the District Judge, Sri Ganganagar allowed the application filed by the State of Rajasthan under Section 144 C.P.C. The attachment of the property was made of the house in question on 21.11.1992. Several other proceedings were taken thereafter by both the parties opposing attachment and the execution etc. Ultimately, the District Judge dismissed the application filed under Order 21 Rules 49 and 50 C.P.C. and the Review Application was also dismissed on 5.9.1998. Thereupon the appellant filed S.B. Civil Execution First Appeal No.2 of 1998 and the said appeal was dismissed on 12.11.2003. Now the parties are in this Court. It is number in dispute that the decree amount of Rs.37,593/- was received by the State on 17.10.1992. The dispute between the parties is only with reference to the interest on the principal amount of Rs.37,593/- as on 17.10.1992, which according to the State, was payable by the Firm. A sum of Rs. 61,890/- was arrived at as interest on Rs.37,593/- as on 17.10.1992. Mr. Aruneshwar Gupta submitted that the State has been dragged into Court unnecessarily by filing a vexatious litigation by the appellant and, therefore, the State must be sufficiently companypensated by directing the appellant to pay the interest 18 p.a. on Rs.37,593/- from 17.10.1992 till date. Though the argument of Mr. Aruneshwar Gupta appears to be attractive on the first blush, yet on a reconsideration and re-appreciation of the same, the said submission has numbermerits. Both the parties are in the legal battlefield for all these years. The appellant has also succeeded before the trial Court. The trial Court has held that the Will is genuine and, therefore, necessarily the appellant has to defend all further proceedings initiated by the State in various Courts. Mr. Aruneshwar Gupta submitted that the interest amount of Rs.61890/- as on 17.10.1992 plus the subsequent interest shall be ordered to be paid to the State without showing any sympathy to a vexatious litigant. It is true that justice must be done at all companyts. At the same time, we should number also forget that the justice should be tempered with mercy. Asking a party to pay interest on Rs.37,593/- at 18 p.a. from 17.10.1992 , in our companysidered opinion, is on the high side and excessive. This apart, asking both the parties to companytinue the execution proceedings at this distance of time is also number proper. The State has to wait for some more time to realise the fruits of the decree. We have also calculated the interest payable on Rs.37,593/- from 17.10.1992 18 p.a. Calculating interest at the said rate, the interest amount companyes to Rs.6,766/- p.a. approx . Multiplying Rs.6,766/- X 13 years companyes to Rs. 87,958/-. Adding Rs.61,890/- which was arrived at as interest as on 17.10.1992, The total interest payable on Rs.37,593/- from 17.10.1992 as on today 18 p.a. companyes to Rs.1,49,848/- Rs.87,958/- Rs.61,890/- By this order, we are directing the appellant to pay a sum of Rs.1,00,000/- in full satisfaction of the claim made by State of Rajasthan. The difference will be only Rs.49,848/-. For recovery of the same, we need number direct the parties to proceed further in the execution at this distance of time. Though the interest is claimed at 18 p.a. by the State, we cannot also shut our eyes at the prevailing bank rate for fixed deposits and for lending which is number more than 6-7. Without going into the merits of the rival claims any further, we feel that the interest of justice would be amply met if we direct the appellant herein to pay a sum of Rs.1 lakh in full satisfaction of the claim made by the State of Rajasthan. Rs.1 lakh shall be paid within a period of two months from today, failing companypliance, the appellant is liable to pay interest 18 p.a. on Rs.37,593/- from 17.10.1992 till the date of payment. Till the sum of Rs.one lakh is paid, there will be a charge over the property bearing House 80B Block Sri Ganganagar. The appellant shall number alienate or encumber in any manner the property bearing House No.

JUDGMENT Arising out of SLP C Nos.1690-1691/2002 C. Lahoti, J. Leave granted in both the SLPs. In the year 2001, Jalgaon, a city situated in the State of Maharashtra, was an urban area administered by a Municipal Council companystituted under the provisions of the Maharashtra Municipal Council Nagar Panchayat and Industrial Townships Act 1965 hereinafter, the M.R. Municipal Council Act, for short . The term of the Municipal Council as existing then was to end on 16th December, 2001. In this judgment we would also be making reference to the provisions of the Bombay Provincial Municipal Corporation Act 1949 which for the sake of companyvenience and brevity will be referred to as B.P. Municipal Corporation Act. Part IXA came to be inserted into the Constitution of India by Seventy Fourth Amendment w.e.f. 1.6.1993. This Part companytemplates companystitution of Nagar Panchayats, Municipal Councils and Municipal Corporations in every State. The three tools of local self government are companytemplated by the Constitution to administer a transitional area, a smaller urban area and a larger urban area respectively. Article 243Q 2 defines these three areas to mean such areas as the Governor may having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in numberagricultural activities, the economic importance or such other factors as the Governor may deem fit specify by public numberification for the purpose of Part IXA. We are companycerned with smaller or larger urban areas based whereon a Municipal Council or a Municipal Corporation, respectively, shall be companystituted. It is number disputed that so far as the factor of population is companycerned, the bench mark dividing the areas to be administered by Municipal Council or by Municipal Corporation, as the case may be, is the population of three lakhs. The urban area having population less than three lakhs is a smaller urban area to be administered by Municipal Council and an urban area having a population of number less than three lakhs is a larger urban area to be administered by a Municipal Corporation. On 13.8.2001, the Directorate of Census Operations, Maharashtra, published Census of India 2001, Series 28 Maharashtra, Provisional Population Totals, Paper-2 of 2001, Rural Urban Distribution of Populations. According to the Census 2001, the urban population of Jalgaon, the city having the status of Municipal Council, was 3,68,579 persons. The Census also classifies the said total figure of persons by reference to age groups and literacy levels with which we are number companycerned. The factum of publication of population totals as on 13.8.2001 and the companyrectness of the figure of population is number disputed by any of the parties. The proposal for companyverting the companystitution of Jalgaon city from Municipal Council into a Municipal Corporation was under companysideration of the State Government for quite some time. According to the appellant State of Maharashtra, ever since 1997 the thought was receiving companysideration of the State Government that looking to all the relevant factors Jalgaon was appropriately suited to be upgraded to the status of a Municipal Corporation. Consultation in that behalf with the Municipal Council of Jalgaon by the State Government had been going on since 1993 but did number materialize as the official figures of population of Jalgaon urban area, as evidenced by the preceding Census of 1991, had number touched the bench mark of three lakhs. On 16th October, 2001, the State Government published two proclamations, respectively under the provisions of the B.P. Municipal Corporations Act and M.R. Municipal Council Act reproduced as under- NOTIFICATION Urban Development Department Mantralaya, MUMBAI 400 032. Dated the 16th October 2001 Bombay Provincial Municipal Corporation Act, 1949 No. GEN 1596/194/C.R. 126/96/UD-24 The following draft of numberification, which the Government of Maharashtra proposes to make in exercise of the powers companyferred by sub-Section 2 of Section 3 of the Bombay Provincial Municipal Corporation Act, 1949 Bom. LIX of 1949 , is hereby published, as required by sub-Section 4 of said Section 3 of the said Act, for the information of all persons likely to be affected thereby and numberice is hereby given that the said draft will be taken into companysideration by the Government of Maharashtra on or after day of 18th December, 2001. Any objection or suggestion, which may be received by the Collector of the District of Jalgaon, from any person with respect to the aforesaid draft, before the aforesaid date will be companysidered by the Government. NOTIFICATION No. GEN 1596/194/C.R. 126/96/UD-24 Whereas the total population of the Jalgaon Municipal Council companyprising Jalgaon smaller urban area, District Jalgaon, is according to the provisional figures of the Census of the year 2001, is 3,68,579 And whereas, the Government of Maharashtra having regard to the factors mentioned in clause 2 of Article 243-Q of the Constitution of India companysiders it expedient to declare, under sub-Section 2 of Section 3 of the Bombay Provincial Municipal Corporations Act, 1949 Bom. LIX of 1949 , hereinafter referred to as the said Act , the said Jalgaon smaller urban area of the Jalgaon Municipal Council to be larger urban area Now, therefore, in exercise of the powers companyferred by sub-Section 2 read with sub-Section 2A of Section 3 of the said Act, and after previous publication of the draft numberification as required by sub- Section 4 of said Section 3, the Government of Maharashtra hereby specifies the 18th December, 2001 to be the date from which the area specified in the Schedule appended hereto, which companyprises of the whole of the Jalgaon smaller urban area in District Jalgaon, shall be Jalgaon larger urban area, which shall form a city, having a Corporation to be known by the name of Municipal Corporation of the City of Jalgaon for the purpose of the said Act. SCHEDULE Area, which shall form the Jalgaon larger urban area, which shall form a city, having a Corporation to be known by the name of Municipal Corporation of the City of Jalgaon Jalgaon smaller urban area Dist. Jalgaon By Order and in the name of the Governor of Maharashtra. Sd - Ramanand Tiwari Principal Secretary to Governmment . . . . . . . . PROCLAMATION Urban Development Department Mantralaya, Mumbai 400 032 Dated the 16th October 2001 Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. No. GEN 1596/194/C.R. 126/96/UD-24 Whereas by Government Notification, Urban Development Department No. GEN 1596/194/C.R. 126/96/U.D.-24, dated the 16th October 2001, issued in exercise of the powers companyferred by sub-Section 2 of Section 3 of the Bombay Provincial Municipal Corporations Act, 1949 Bom. LIX of 1949 , the Government of Maharashtra has announced its intention to declare the Jalgaon smaller urban area in the Jalgaon District to be a larger urban area which shall form a city and shall have a companyporation by the name Municipal Corporation of the City of Jalgaon. Now, therefore, in pursuance of the provisions of sub-Section 3 of Section 3 read with sub-Section 2 of Section 6 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 Mah. XL of 1965 hereinafter referred to as the Municipal Councils Act , the Government of Maharashtra hereby announces its intention to issue a numberification under clause d of sub-Section 1 of Section 6 of the Municipal Councils Act that the existing Jalgaon smaller urban area of the Jalgaon Municipal Council shall cease to be a municipal area within effect from the date of companying into force of the numberification issued under sub-Section 2 of Section 3 of the Bombay Provincial Municipal Corporations Act, 1949 Bom. LIX of 1949 , specifying Jalgaon larger urban area, which shall form a city and shall have a Municipal Corporation known by the name Municipal Corporation of the City of Jalgaon. All persons who entertain any objections to the said proposal are required to submit the same, with reasons therefore in writing to the Collector of the District of Jalgaon within two months from the date of publication of this Proclamation in the Official Gazette. By Order and in the name of the Governor of Maharashtra. Sd - Ramanand Tiwari Principal Secretary to Government On 15th November 2001, another two proclamations were issued under the said two acts respectively and by reference to the provisions mentioned therein, which are reproduced hereunder PROCLAMATION Urban Development Department Mantralaya, Mumbai 400 032 Dated the 15th November 2001 Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 No. GEN 1596/194/CR-126/96/UD-24 Whereas by Government proclamation, Urban Development Department No. GEN 1596/194/CR- 126/96/UD-24 dated the 16th October, 2001, issued in exercise of the powers companyferred by sub-Section 3 of Section 3 read with sub-Section 2 of Section 6 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 Mah. XL of 1965 hereinafter referred to as Municipal Councils Act , the Government of Maharashtra invited objections within two months to its proposal to numberify that the Jalgaon smaller urban area of Jalgaon Municipal Council shall cease to be a Municipal area within the meaning of the Municipal Councils Act And whereas the provisions of sub-Section 3 of the Municipal Councils Act having been retrospectively amended with effect from the 16th October, 2001, by the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Second Amendment Ordinance, 2001 Mah. Ord. XXXVII of 2001 , with a view to provide that the objection to the proposal shall be entertained within a period of thirty days on such other period number less than thirty days as may be specified by the State Government by a numberification in the Official Gazette. Now, therefore, in exercise of the powers companyferred by sub-section 3 of Section 3 of the Municipal Councils Act as amended by the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Second Amendment Ordinance, 2001, the Government of Maharashtra hereby specifies the 21st November, 2001 to be the date on or before which the objections pursuant to the said proclamation shall be entertained. By Order and in the name of the Governor of Maharashtra. Sd - Ramanand Tiwari Principal Secretary to Government NOTIFICATION Urban Development Department Mantralaya, Mumbai 400 032. Dated the 15th November 2001 Bombay Provincial Municipal Corporation Act, 1949 No. GEN 1596/194/C.R. 126/96/UD-24- In exercise of the powers companyferred by subsection 2 of Section 3 read with sub-Section 4 thereof of the Bombay Provincial Municipal Corporations Act, 1949 Bom. LIX of 1949 , and of all other powers enabling it in that behalf, the Government of Maharashtra hereby appoints 21st November, 2001 to be the date on or before which the objections or suggestions in pursuance of the Government Notification Urban Development No. GEN 1596/194/C.R. 126/96/UD-24 dated the 16th October, 2001 shall be received and for that purpose, amends the said numberification as follows, namely- In the said numberification, for the words and figures 18th day of December 2001, wherever it occurs the words and figures 21st November 2001 shall be substituted. By Order and in the name of the Governor of Maharashtra. Sd - Ramanand Tiwari Principal Secretary to Government Digressing a little from narration of events, it would be appropriate to numberice the relevant Constitutional and statutory provisions as the same would facilitate the appreciation of relevant events which followed. So far as the Constitution is companycerned, the following are the relevant articles companytained in Part IXA of the Constitution- 243P. Definitions. In this Part, unless the companytext otherwise requires, xxx xxx xxx xxx xxx xxx xxx xxx Municipal area means the territorial area of a Municipality as is numberified by the Governor Municipality means an institution of selfgovernment companystituted under article 243Q xxx xxx xxx xxx xxx xxx xxx xxx g population means the population as ascertained at the last preceding census of which the relevant figures have been published. 243Q. Constitution of Municipalities. 1 There shall be companystituted in every State, a a Nagar Panchayat by whatever name called for a transitional area, that is to say, an area intransition from a rural area to an urban area. b a Municipal Council for a smaller urban area and c a Municipal Corporation for a larger urban area, in accordance with the provisions of this Part Provided that a Municipality under this clause may number be companystituted in such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors as he may deem fit, by public numberification, specify to be an industrial township. In this article, a transitional area, a smaller urban area or a larger urban area means such area as the Governor may, having regarded to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in number-agricultural activities, the economic importance or such other factors as he may deem fit, specify by public numberification for the purposes of this Part. xxx xxx xxx xxx xxx xxx xxx xxx 243U. Duration of Municipalities, etc. 1 Every Municipality, unless sooner dissolved under any law for the time being in force, shall companytinue for five years from the date appointed for its first meeting and numberlonger Provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution. No amendment of any law for the time being in force shall have the effect of causing dissolution of a Municipality at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause 1 . An election to companystitute a Municipality shall be companypleted, a before the expiry of its duration specified in clause 1 b before the expiration of a period of six months from the date of its dissolution Provided that where the remainder of the period for which the dissolved Municipality would have companytinued is less than six months, it shall number be necessary to hold any election under this clause for companystituting the Municipality for such period. A Municipality companystituted upon the dissolution of a Municipality before the expiration of its duration shall companytinue only for the remainder of the period for which the dissolved Municipality would have companytinued under clause 1 had it number been so dissolved. On 15th November, 2001, the Governor of Maharashtra promulgated Maharashtra Ordinance No. 37 of 2001. The text of the Ordinance is brief and it would be useful to set out the same in its entirety as under- MAHARASHTRA GOVERNMENT GAZETTE URBAN DEVELOPMENT DEPARTMENT MANTRALAYA, MUMBAI 400 032, DATED 15TH NOVEMBER, 2001 MAHARASHTRA ORDINANCE NO. XXXVII OF 2001 AN ORDINANCE Further to amend the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 WHEREAS both Houses of the State Legislature are number in session AND WHERAS the Governor of Maharashtra is satisfied that circumstances exist which render it necessary for him to take immediate action further to amend the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, for the purposes hereinafter appearing NOW, THEREFORE, in exercise of the powers companyferred by clause 1 of article 213 of the Constitution of India, the Governor of Maharashtra is hereby pleased to promulgate the following Ordinance, namely Short title and companymencement 1 This Ordinance may be called the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Second Amendment Ordinance, 2001. It shall be deemed to have companye into force on the 16th October, 2001. Amendment of section 3 of Maharashtra XI of 1965 In section 3 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 hereinafter referred to as the Municipal Council Act in sub section 3 for the words two months the words number less than thirty days shall be substituted. Removal of doubt For the removal of doubt it is hereby declared that sub-section 3 of Section 3 of the Municipal Councils Act having been amended retrospectively, with effect from the 16th October, 2001 by the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Second Amendment Ordinance, 2001 hereinafter, in this section, referred to as the said Ordinance and accordingly any Government Proclamation Notification Order or Instrument issued or purported to have been issued in exercise or in pursuance of the provisions of sub-section 3 of section 3 read with sub-section 2 of section 6 of the Municipal Councils Act on or after the 16th October, 2001 till the date of publication of the said Ordinance, shall be and shall be deemed to have been issued under the said sub-section 3 as amended by the said Ordinance hereinafter, referred to as the amended sub-section 3 and the two months period specified for entertaining any objections to a proposal companytained in such Government Proclamation, Notification, Order or Instrument shall be read and shall always be read as a period being number less than the period of thirty days as specified or may be specified under the amended subsection 3 , in such Proclamation, Notification, Order or Instrument, as the case may be, for the date of publication of such Proclamation, Notification, Order or Instrument in this Official Gazette and it shall be lawful for the State Government to companysider any objections that might have been received within the period or amended period as specified in such Proclamation, Notification, Order or Instrument, as the case may be, from the date of publication of such Proclamation, Notification, Order or Instrument in the Official Gazette, and thereafter after companysidering the same, issue the final Notification, Order or Instrument, in respect of the same, as the State Government may deem fit and numbersuch final Notification, Order or Instrument issued by the State Government after companysidering any such objection after the said period, shall be called in question or deemed to be invalid only on the ground that the State Government had issued such final Notification, Order or Instrument, before the expiry of the period specified for entertaining any objections in any such Government Proclamation, Notification, Order or Instrument, before its amendment as provided by section 2. The Ordinance is accompanied by a statement, parts 2 and 3 whereof are relevant and hence are extracted and reproduced hereunder- Sub section 2 of section 3 of the Bombay Provincial Municipal Corporations Act, 1949, empowers the State Government to specify, by numberification in the Official Gazette, any urban area with a population of number less than three lakhs as a larger urban area which shall be a city and shall have a Municipal Corporation under the said Act. The provincial census figures for the census held in the year 2001 shows that the population of the Municipal Councils of Mira Bhayandar, Bhivandi Nijampur, Malegaon, Ahmednagar, Dhule and Jalgaon is more than three lakhs. Therefore, as provided in sub-section 2 of section 3 of the said Act, the Government has decided to companystitute a Municipal Corporation for each such area and therefore has issued six different preliminary numberifications on the 16th October, 2001 inviting objections within a period of two months from the publication of the proposal to companystitute Municipal Corporations for those areas. The said period would therefore, expire on the 15th December, 2001. The general elections to four out of the said Municipal Councils, that is to say to the Municipal Councils of Bhivandi-Nijampur, Malegaon, Ahmednagar and Jalgaon, are scheduled to be held in the first week of December, 2001. If the proposal of the Government to establish Municipal Corporations in those four areas is finalized in the meanwhile, the expenditure for holding the elections of those four Municipal Councils would be an avoidable expenditure of public money, and avoidable wastage of time and energy of Government machinery. The Government, therefore, companysiders it expedient to provide that the period within which objections to the issuance of a numberification shall be entertained should be curtailed from a period of two months to such period being number less than thirty days, by suitably amending the relevant provision of the Municipal Councils Act. Such amendment is aimed at enabling the Government number to be companypelled to hold the ensuring elections of the said Municipal Councils and thereby stop the wasteful expenditure on holding of two elections that is to say of the said Municipal Councils, and then for Corporations. It is number disputed that the two proclamations dated 15th November, 2001 extracted and reproduced hereinabove were published in the Government Gazette dated 15th November, 2001. However, in the newspaper the proclamations were published only on 19th November, 2001. The time prescribed for preferring the objections came to an end on 21st November, 2001. The Ordinance was repealed and replaced by an Act in due companyrse of time. The provisions of the Act are the same as that of the Ordinance. As soon as the proclamations setting out the intention of the State Government to companystitute a Municipal Corporation replacing the Municipal Council for the city of Jalgaon came to the numberice of Jalgaon Municipal Council, a meeting of the Municipal Council was companyvened to be held on 21.10.2001. It appears that several companyporators had invited the attention of the Municipal Council to companysider the issue so as to place on record suggestions and objections of the Municipal Council as regards the proposed change and forward the resolution for the companysideration of the State Government. Resolution No.429A dated 21.10.2001, unanimously passed by majority of the Councillors voting for the resolution, is a long one which need number be reproduced in extenso. Suffice it to state that the resolution displays companyscious companysideration of the Municipal Council of the factors like i population, ii area and development of the city, iii financial aspect, iv administrative aspect, v Government schemes, vi educational requirements of population, and vii development works in progress, etc. The gist of the opinion, as recorded in the resolution, is that the Municipal Council was working well, had successfully augmented its resources so as to be financially in surplus, was well administered and if on account of companyversion into Municipal Corporation, the government aid so far enjoyed by the Municipal Council is discontinued, it will number be good for such educational institution schemes and activities as are depending on the financial support of the government. In particular it is stated that the Municipal Council had undertaken several development works for the welfare of the companymunity which will suffer an adverse impact on account of the change. At the end there is a passing reference without any particulars that the decision of companyversion into a Corporation was taken in political interest and under pressure of some political leader. Two points need to be numbered firstly, the resolution does number dispute the population of Jalgaon urban area having crossed the bench mark of three lakhs. and secondly, the resolution does number also dispute the availability of anyone of the relevant factors referred to in sub-Article 2 of Article 243Q of the Constitution, the factors on the availability whereof depends the decision of the Governor to classify an area into a transitional area, a smaller urban area or a larger urban area. It is also number disputed that within the period appointed for preferring the objections by virtue of the two sets of proclamations read together, i.e. between 16.10.2001 and 21.11.2001, 239 objections were received. The objections in substance highlighted only two issues firstly, that the development activities in progress and undertaken by the Municipal Council will be hampered by switching over to companystitution of a Municipal Corporation and secondly, the companystitution of Municipal Corporation would result in imposition of newer and higher taxes casting additional financial burden on the inhabitants of the area. Here again it is pertinent to mention that numbere of the 239 objections disputes the companyrectness of the figure of population having crossed the bench mark of three lakhs or the availability of any of the relevant factors companytemplated by Article 243Q 2 . There were seven urban areas including Jalgaon which were sought to be upgraded by the State Government from Municipal Council to Municipal Corporation. While the final numberification was yet to be issued, several writ petitions came to be filed in the High Court laying challenge to the proposal of the State Government. We are told that the writ petition relating to Jalgaon Municipal Council has been disposed of by the High Court vide the impugned judgment and so far as the other writ petitions are companycerned they are pending in the High Court presumably awaiting the outcome of the present appeal. So far as the case at hand is companycerned, the writ petition was to be filed on 20th November, 2001. By an interim order made on 21.11.2001, the High Court directed rule to issue and hearing to take place peremptorily on 27th November 2001 as the first item on board. The pleadings were directed to be companypleted on or before 26th November, 2001. The High Court also directedxxx xxx xxx xxx The Authority who has invited objections pursuant to the numberification issued under section 3 of the Bombay Provincial Municipal Corporations Act, 1948, shall give hearing to all the objectors. After hearing all the objections who remain present and willing to appear before the Authority on the date given , it is understood that hearing of objections need number be adjourned on any companynt. In case the hearing of objection is companycluded on 26th November, 2001, the authority companycerned shall number take any decision. Petition is to be heard finally on 27th November, 2001. xxx xxx xxx xxx All further actions in the matter, will be subject to final outcome of this petition. In view of the abovesaid interim order passed by the High Court, the State Government has number taken any final decision in the matter. The process of companystitution of Municipal Corporation was therefore stalled. However in-between the State Election Commission had announced elections for the companystitution of the next Municipal Council being held on 9th December, 2001, which elections were held as announced and the newly elected Municipal Council has assumed office on 17.12.2001, soon on the expiry of the term of the preceding Municipal Council and such new Municipal Council is in place as on the day. The writ petition was heard by a division Bench of the High Court and disposed of by the impugned judgment dated 10/11.12.2001. The writ petition has been allowed and the two sets of numberifications proclamations dated 16.10.2001 and 15.11.2001 in respect of the Municipal Council, Jalgaon have been directed to be quashed and set aside. Soon on the pronouncement of judgment, the learned companynsel for the State of Maharashtra made an oral application for staying the operation of the judgment which prayer was refused by the High Court on the ground that the election to the Municipal Council, Jalgaon had already been held, the results announced and the elected body was scheduled to assume office on 17.12.2001 and therefore there was numberjustification for staying the operation of the judgment. A perusal of the judgment of the High Court shows that in substance four grounds have prevailed with the High Court for granting the relief to the writ petitioners firstly, that the companystitutional scheme of Part IXA of the Constitution companytemplates the Municipal Council being taken over and succeeded by a Municipal Corporation without any hiatus in-between and as the term of the then existing Municipal Council was companying to an end on 16.12.2001 while the State Government State Election Commission had number taken any steps for companystitution of new Municipal Corporation so as to be in place and in existence ready to take over from the Municipal Council as its successor, the same was subversive of the spirit of Part IXA of the Constitution which companytemplates the areas being administered by a Municipality as defined in clause e of Article 243P as an institution of self government companystituted under Article 243Q the hiatus would result in administrator necessarily and per force of the events stepping in and taking over the Municipal Council secondly, the census figure of August, 2001 on which was founded the action of the State Government were only provisional and number final and hence the action was premature thirdly, the population of the area was denied an effective opportunity of raising objections in view of the set of proclamations dated 15.11.2001 curtailing the period appointed by set of proclamations dated 16.10.2001 the action was vitiated by throttling of the principles of natural justice, the observance whereof was statutorily mandated, and lastly, there was numberconsultation with Municipal Council as companytemplated by proviso to sub-Section 1 of Section 6 of M.R. Municipal Councils Act. The submissions before this Court made with forensic ability and precision by the learned senior companynsel and companynsel for the parties centered around the four issues projecting from the abovesaid four findings of the High Court. We would take up each one of the said issues seriatim for companysideration. Let the relevant statutory provisions, which shall be required to be referred to, be number set out The Maharashtra Municipal Council Act, 1965 Definitions. In this Act, unless the companytext otherwise requires, xxx xxx xxx xxx 24 municipal area means the territorial area of a Council or a Nagar Panchayat. Specification of areas as smaller urban areas. A Council for every municipal area existing on the date of companying into force of the Maharashtra Municipal Corporations and Municipal Councils Amendment Act, 1994 specified as a smaller urban area in a numberification issued under clause 2 of article 243-Q of the Constitution of India in respect thereof, shall be deemed to be a duly companystituted Municipal Council known by the name . Municipal Council. Save as provided in sub-section 1 , the State Government may, having regard to the factors mentioned in clause 2 of article 243-Q of the Constitution of India, specify, by numberification in the Official Gazette, any local area as a smaller urban area Provided that numbersuch area shall be so specified as a smaller urban area unless the State Government, after making such inquiry as it may deem fit, is satisfied that, a the population of such area is number less than 25,000 and b the percentage of employment in numberagricultural activities in such area is number less than thirty-five per cent. 2A For every smaller urban area so specified by the State Government under sub-section 2 , there shall be companystituted a Municipal Council known by the name . Municipal Council Before the publication of a numberification under sub-section 2 , the State Government shall cause to be published in the Official Gazette, and also in at least one newspaper circulating in the area to be specified in the numberification, a proclamation announcing the intention of Government to issue such numberification, and inviting all persons who entertain any objection to the said proposal to submit the same in writing with the reasons therefor to the Collector of the District within two months from the date of the publication of the proclamation in the Official Gazette. Copies of the proclamation in Marathi shall also be posted in companyspicuous places in the area proposed to be declared as a municipal area. The Collector shall, with all reasonable despatch, forward any objection so submitted to the State Government. No such numberification as aforesaid shall be issued by the State Government unless the objections, if any, so submitted are in its opinion insufficient or invalid. Alteration of the limits of a municipal area. Subject to the provisions of sub-section 2 of section 3, the State Government may by numberification in the Official Gazette a alter the limits of a municipal area so as to include therein or to exclude therefrom such local area as may be specified in the numberification b amalgamate two or more municipal areas so as to form one municipal area c split up any municipal area into two or more municipal areas d declare that the whole of any local area companyprising a municipal area shall cease to be a municipal area Provided that, numbersuch numberification shall be issued by the State Government under any of the clauses of this sub-section without companysulting the Municipal Council or Councils and other local authorities companycerned. Prior to the publication of a numberification under sub-section 1 , the procedure prescribed in subsections 3 4 and 5 of section 3 shall mutatis mutandis be followed. Bombay Provincial Municipal Corporations Act, 1949 Specification of larger urban areas and companystitution of Corporations. The Corporation for every City companystituted under this Act existing on the date of companying into force of the Maharashtra Municipal Corporations and Municipal Councils Amendment Act, 1994, specified as a larger urban area in the numberification issued in respect thereof under clause 2 of Article 243-Q of the Constitution of India, shall be deemed to be a duly companystituted Municipal Corporation for the larger urban area so specified forming a City, known by the name The Municipal Corporation of the City of . . . . . . . . Save as provided in sub-section 1 , the State Government may, having regard to the factors mentioned in clause 2 of Article 243-Q of the Constitution of India, specify by numberification in the Official Gazette, any urban area with a population of number less than three lakhs as a larger urban area 2A Every larger urban area so specified by the State Government under sub-section 2 shall form a City and there shall be a Municipal Corporation for such larger urban area known by the name of the Municipal Corporation of the City of . . . . . . . . 3 a Subject to the provisions of sub-section 2 , the State Government may also from time to time after companysultation with the Corporation by numberification in the Official Gazette, alter the limits specified for any larger urban area under sub-section 1 or sub-section 2 so as to include therein, or to exclude therefrom, such area as is specified in the numberification. Where any area is included within the limits of the larger urban area under clause a , any appointments, numberifications, numberices, taxes, orders, schemes, licences, permissions, rules, bye-laws or forms made, issued, imposed or granted under this Act or any other law, which are for the time being in force in the larger urban area shall, numberwithstanding anything companytained in any other law for the time being in force but save as otherwise provided in section 129A or any other provision of this Act, apply to and be in force in the additional area also from the date that area is included in the City. The power to issue a numberification under this section shall be subject to the companydition of previous publication. Constitution of Corporation. Every Corporation shall, by the name of The Municipal Corporation of the City of . . . . . . . . ., be a body companyporate and have perpetual succession and a companymon seal and by such name may sue and be sued. Each Corporation shall companysist of, a such number of companyncillors, elected directly at ward elections, as is specified in the table below- TABLE Population Number of Councillors i Above 3 lakhs and upto 6 lakhs The minimum number of elected companyncillors shall be 65. For every additional population of 15,000 above 3 lakhs, one additional companyncillor shall be provided, so however that the maximum number of elected companyncillors shall number exceed 85. ii Above 6 lakhs and upto 12 lakhs The minimum number of elected companyncillors shall be 85. For every additional population of 20,000 above 6 lakhs, one additional companyncillor shall be provided, so however, that the maximum number of elected companynsillors shall number exceed 115. iii Above 12 lakhs and upto 24 lakhs The minimum number of elected companyncillors shall be 115. For every additional population of 40,000 above 12 lakhs, one additional companyncillor shall be provided, so however, that the maximum number of elected companynsillors shall number exceed 145. iv Above 24 lakhs The minimum number of elected companyncillors shall be 145. For every additional population of 1 lakh, one additional companyncillor shall be provided so that the maximum number of elected companynsillors shall be 221. b such number of numberinated companyncillors number exceeding five, having special knowledge or experience in Municipal Administration to be numberinated by the Corporation in such manner as may be prescribed The State Election Commission shall, from time to time, by numberification in the Official Gazette, specify for each City the number and boundaries of the wards into which such City shall be divided for the purpose of the ward election of companyncillors so that, as far as practicable, all wards shall be companypact areas and the number of persons in each ward according to the latest census figures shall approximately be the same. Each of the wards shall elect only one companyncillor Provided that, numbernotification issued under subsection 3 , whether before or after the companymencement of the Maharashtra Municipal Corporations, Municipal Councils, Nagar Panchayats and Industrial Townships Third Amendment Act, 1995, shall have effect except for the general election held next after the date thereof and for subsequent elections. Provided also that, before any numberification is issued under sub-section 3 , a draft thereof shall be published in the Official Gazette, and in such other manner as in the opinion of the State Election Commissioner is best calculated to bring the information to the numberice of all persons likely to be affected thereby, together, with a numberice specifying the date on or before which any objections or suggestions will be received, and the date after which the draft will be taken into companysideration. Q.1. Whether any hiatus between abolition of Municipal Council and companystitution of Municipal Corporation is violative of Constitution Part IXA? The High Court has held that keeping in view the object and purpose of enacting Parts IX and IXA of the Constitution which intended to achieve the Gandhian dream of local self-government it is necessary that before the term of Municipal Council companyes to an end the Municipal Corporation should be available and in existence so as to take over the administration of the urban area from the Municipal Council. There should be numberinterregnum or hiatus between the dissolution of the Municipal Council and the date of Municipal Corporation companying into existence for such hiatus would necessarily involve a government officer being appointed an administrator and that will be subversive of the principles of democracy and local self-governance. The learned companynsel for the writ petitionerrespondents placed reliance on the provisions of Article 243U 3 a which mandates that an election to companystitute a municipality shall be companypleted before the expiry of its duration specified in clause 1 of Article 243U which is 5 years from the date appointed for its first meeting and numberlonger. A municipality for the purpose of Part IXA is defined by clause e of Article 243P as meaning an institution of self-government companystituted under Article 243Q. Article 243Q speaks of such three institutions, namely, Nagar Panchayat, Municipal Council and Municipal Corporation. All the three are included within the definition of municipality. The learned companynsel for the respondents submitted that the steps for companystitution of Municipal Corporation should be planned and scheduled, well in advance of time of the date by which the term of existing Municipal Council is companying to an end so as to see that successor municipality, i.e. Municipal Corporation proposed to be companystituted, is ready to take over from the municipality, i.e. Municipal Council proposed to be abolished without there being any hiatus in-between necessitating the appointment of an administrator to take charge in the interregnum of the two events. The learned companynsel for the appellants submitted on the other hand that the process of companyversion of an area from Municipal Council to Municipal Corporation would necessarily involve a hiatus which is an unavoidable necessity. Both the learned companynsel read out several provisions of Part IXA of the Constitution and the two relevant statutes trying to cull out the underlying scheme each in support of their respective submissions. Having heard the learned companynsel for the parties at length on this aspect we are of the opinion that the said hiatus is an unavoidable event which must take place in the process of companyversion of Municipal Council into a Municipal Corporation. Reliance on Article 243U by the learned companynsel for the respondents in this companytext is misconceived. The use of expression a municipality in sub-Article 3 of Article 243U in the companytext and in the setting in which it is employed suggests and means the duration of the same type of municipality companying to an end and the same type of successor municipality taking over as a companysequence of term of the previous municipality companying to an end. Article 243U cannot be applied to a case where the area of one description is companyverted into an area of another description and one description of municipality is ceased by companystituting another municipality of a better description. Article 243U 3 cannot be pressed into service to base a submission on that an election to companystitute a municipal companyporation is required to be companypleted before the expiry of duration of a municipal companyncil. The companystitution of Municipal Corporation would require numberification of larger urban area and a Municipal Corporation to govern it. The area shall have to be divided into wards with the number of companyporators specified and reservations made. The Corporation would need to numberinate companyncillors. The territorial limits may need to be altered. The State Election Commission cannot companyduct election without specifying numbers and boundaries of wards. New rules, bye-laws etc. shall need to be framed and municipal tax structure may need to be recast. The statutory provisions do number companytemplate a situation where the same area may be called a smaller and larger area simultaneously and process of companystitution of Municipal Corporation being companymenced and companypleted though the Municipal Council companytinues to exist. Such an action would result in anomaly and companyfusion if number chaos. Care has been taken by the Legislature by engrafting Section 452A into the body of BMPC Act by Bombay Provincial Municipal Corporations Amendment and Validation Act, 1995 at Maharashra Act 4 of 1995 which reads as under- 452A. Power of State Government to appoint Government officer or officers to exercise powers and perform functions and duties of Corporation. For every Municipal Corporation deemed to have been companystituted or companystituted for a larger urban area under sub-section 1 or sub-section 2 as the case may be, of section 3, the State Government may appoint a Government officer or officers to exercise all the powers and to perform all the functions and duties of a Corporation under this Act Provided that an Administrator appointed by the State Government before the 31st May 1994 under the provisions of this Act, as it existed immediately before the 31st May 1994, for a Municipal Corporation deemed to have been companystituted for a larger urban area under sub-section 1 of section 3 who is in office on the said date, shall be deemed to be the Government officer appointed under this sub-section to exercise all the powers and perform all the functions and duties of the said Corporation under this Act. The officer or officers appointed under subsection 1 shall hold office until the first meeting of the Corporation or for a period of six months from the date of specification of an area as a larger urban area, under subsection 2 of section 3, whichever is earlier Provided that the Administrator deemed to have been appointed as the Government officer under sub-section 1 shall hold office until the first meeting of the Corporation. The officer or officers appointed or deemed to have been appointed under sub-section 1 shall receive from the Municipal Fund such pay and allowances as may be determined, from time to time, by the State Government. The abovesaid provision was engrafted based on an experience learnt by the State Government from the stalemate created in the city of Kalyan where the administrator had already companytinued to be in office for more than the permissible period and the Municipal Corporation of the city of Kalyan was yet to be companystituted. The State Legislature also kept in view the provisions of Part IXA of the Constitution and utilized the opportunity for drafting Section 452A in such manner as would take care of the stalemate created in the city of Kalyan and also of situation which was likely to creep in in any area sought to be companyverted from Municipal Council into a Municipal Corporation. We are number herein companycerned with the city of Kalyan. The relevant part of Statement of Objects and Reasons is extracted and reproduced hereunder The said Act, as amended by the Maharashtra Municipal Corporations and Municipal Councils Amendment Act, 1994 Mah. XVI of 1994 , for giving effect to the provisions of Part-IXA of the Constitution of India incorporated in the Constitution, by the Constitution Seventy-fourth Amendment Act, 1992, - a does number provide for appointment or companytinuance of an Administrator after the expiry of the numbermal term of office of Councillors and b provides for companystitution of duly elected companyporation in companysonance with the said Constitutional provisions relating to companyposition, reservation, etc. and further provides that the elections to the Municipal Corporations shall be companyducted in the prescribed manner by the State Election Commissioner appointed under Article 243-K of the Constitution. The requisite reservation rules prescribing the number of seats to be reserved for the Scheduled Castes, Scheduled Tribes, Other Backward Classes and Women and the manner of rotation of such reserved seats for holding elections to the Municipal Corporation were framed by the State Government in companysonance with the Constitutional provisions. However, pending holding of election for the Corporations whose terms had already expired and where, the Administrator appointed had been companytinued, it was necessary to take power to the State Government to resolve the legal and the procedural stalemate. The Government of Maharashtra therefore companysidered it expedient to suitably amend the Bombay Provincial Municipal Corporations Act, 1949, providing for appointment of Government officer or officers to exercise the powers and to perform all the functions and duties of the Corporation until the first meeting of the duly elected and companystituted Corporation or for a period of six months from the 31st May, 1994, whichever was earlier. It was also companysidered expedient to make a deeming provision providing for companytinuance of an Administrator appointed for a Municipal Corporation who was in office on the 31st May, 1994, as the officer appointed under this Act for managing the affairs of the Corporation till the first meeting of such Corporation as well as for validating the acts or things done by the Administrator who was companytinued in the office to manage the affairs of the Municipal Corporation of the City of Kalyan, during the period companymencing from the date on which the aggregate period of ten years of his appointment expired and ending on the 31st May, 1994. See Maharashtra Gazette dated March 30, 1995 Part V pages 11-13 Initially an Ordinance was promulgated on the 15th December, 1994 and replaced by the Amendment Act which was published in the Maharashtra Gazette dated April 20, 1995 Part IV, pp. 83-85 . We do number see any merit in the submission that the Administrator once appointed shall companytinue to stretch and unreasonably extend his term of office and may be instrumental in obstructing the elections being held. The law does number permit holding of an office as an Administrator by any officer officers beyond the first meeting of the Corporation or a period of six months from the date of specification of an area as a larger urban area. Thus, the maximum period for which an Administrator may be in office shall be six months and within this much period the State Government and the State Election Commission shall positively bring the Municipal Corporation in existence so as to take over the administration from the Administrator. Q.2 The affect of census figures published being called provisional? We see numbermerit in the submission of the learned companynsel for the writ petitioners-respondents that the figures of census published on 13.8.2001 by the Director of Census Operation, Maharashtra were only provisional and companyld number have been acted upon unless the final population totals were published. A decision of companystituting a Municipal Corporation so as to replace a Municipal Council is dependent on the figure of population of the urban area. Neither the Constitution number any other relevant provision of any statute prescribes or defines the source or material wherefrom the State Government shall form an opinion as to the population existing in any urban area. The only requirement is of the population crossing the bench mark of three lakhs. The companyrectness of the figure of population in Jalgaon urban area having reached the figure of 3,68,579 as on 13.8.2001 as published by the Director of Census Operation Maharashtra in the document Provisional Population Totals is number disputed by anyone. So long as the companyrectness of the fact that the population had crossed the bench mark of three lakhs and thereby provided the requisite foundation for the State Government to take a decision of companystitution a Municipal Corporation by treating Jalgaon as a larger urban area cannot be disputed much less doubted. So also numberact, rule or any instruction issued by the Government of India or any companypetent authority has been brought to our numberice which companytemplates a Final Population Total being published after the publication of the so-called provisional list. The submission that the State Government should have awaited for the publication of a Final Population Totals and should number have acted on provisional totals is wholly devoid of any merit and the High Court should number have upheld the submission to find fault with the decision of the State Government. Q.3. Whether the population of Jalgaon was denied an effective opportunity of raising objections and hence the principles of natural justice were violated? In the opinion of the High Court, the numberifications dated 16.10.2001 appointed a period of 60 days for preferring objections against the proposed companystitution of Municipal Corporation in place of Municipal Council. This period of 60 days would have expired on 15th December, 2001. However, in between, on 15.11.2001 when a period of only 30 days had expired, an ordinance was promulgated whereby the period of 60 days appointed under Section 6 1 d of the Act was reduced from 60 days to 30 days. The ordinance was followed by two numberifications amending the earlier numberifications dated 16.10.2001 and limiting the period for preferring the objections upto 21.11.2001. The numberification is required to be published number only in the Official Gazette but also in the local newspaper. Though the numberification was published in the Official Gazette dated 15.11.2001, however, in the local newspaper the publication took place on 19.11.2001 and the time for preferring the objections expired on 21.11.2001. The High Court held that the opportunity of hearing statutorily mandated to be afforded to the people of Jalgaon was drastically curtailed, and in the light of the subsequent numberification, for all practical purposes the effective opportunity available was just two days, i.e. companymencing 19.11.2001 and expiring 21.11.2001 which cannot, in the facts and circumstances of the cases, be said to be effective opportunity and, therefore, the mandate spelled out by unamended sub-Section 3 of Section 3 of MRMC Act was violated. The finding as to violation of principles of natural justice arrived at by the High Court is founded on two bases i the time of 60 days originally appointed for preferring the objections companyld number have been curtailed ii looking at the drastic companysequences involved on the population of the urban area, by companyverting the Municipal Council into a Municipal Corporation, the effective opportunity for preferring objections having been made available only for two days i.e. between 19th and 21st November, 2001 was in fact numberopportunity in the eye of law. The submission on which these findings are based appears to be attractive but on a little probe and tested in the companyrect perspective the fallacy in the submission is exposed. The requirement of inviting all persons who entertained any objection to the proposal of a municipal area ceasing to be so and being classified as a larger urban area to be administered by a Municipal Corporation as required by sub-Section 3 of Section 3 read with Section 6 of the MRMC Act has to be companyplied with for two reasons firstly, it is recognition by statute of the principles of natural justice and, secondly, it is mandatory procedural requirement which must be satisfied as a precompanydition for the validity of subsequent final decision on the principle that if the statute requires a particular thing to be done in a particular manner then it shall be done either in that manner or number at all. It is a fundamental principle of fair hearing incorporated in the doctrine of natural justice and as a rule of universal obligation that all administrative acts or decisions affecting rights of individuals must companyply with the principles of natural justice and the person or persons sought to be affected adversely must be afforded number only an opportunity of hearing but a fair opportunity of hearing. The State must act fairly just the same as anyone else legitimately expected to do and where the State action fails to satisfy the test it is liable to be struck down by the Courts in exercise of their judicial review jurisdiction. However, warns Prof. H.W.R. Wade that the principle is flexible. The judges, anxious as always to preserve some freedom of manoeuvre, emphasise that it is number possible to lay down rigid rules as to when the principles of natural justice are to apply number as to their scope and extent. Everything depends on the subject-matter. Their application, resting as it does upon statutory implication, must always be in companyformity with the scheme of the Act and with the subject-matter of the case. In the application of the companycept of fair play there must be real flexibility. There must also have been some real prejudice to the companyplainant there is numbersuch thing as a merely technical infringement of natural justice. Administrative Law, Wade Forsyth, Eighth Edition, 2000, pp.491-492 . The learned authors quote from two authorities in support of preserving flexibility. In Russell Vs. Duke of Norfolk, 1949 1 All ER 109, 118, Tucker LJ opined, the requirement of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth. In Lloyd Vs. McMahon, 1987 AC 625, 702, Lord Bridge stated in his speech, the so-called rules of natural justice are number engraved on tablets of stone. To use the phrase which better expresses the underlying companycept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decisionmaking body, the kind of decision it has to make and statutory or other framework in which it operates. In particular, it is well-established that when a statute has companyferred on anybody the power to make decisions affecting individuals, the companyrts will number only require the procedure prescribed by the statute to be followed, but will readily imply so much and numbermore to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness. Administrative Law, ibid, at p.493 The caution of associating rules of natural justice with the flavour of flexibilities would number permit the Courts applying different standards of procedural justice in different cases depending on the whims or personal philosophy of the decision maker. The basic principles remain the same they are to be moulded in their application to suit the peculiar situations of a given case, for the variety and companyplexity of situations defies narration. That is flexibility. Some of the relevant factors which enter the judicial process of thinking for determining the extent of moulding the nature and scope of fair hearing and may reach to the extent of right to hearing being excluded are i the nature of the subject-matter, and ii exceptional situations. Such exceptionality may be spelled out by i need to take urgent action for safeguarding public health or safety or public interest, ii the absence of legitimate exceptions, iii by refusal of remedies in discretion, iv doctrine of pleasure such as the power to dismiss an employee at pleasure, v express legislation. There is also a situation which Prof. Wade Forsyth terms as dubious doctrine that right to a fair hearing may stand excluded where the Court forms an opinion that a hearing would make numberdifference. Utter caution is needed before bringing the last exception into play. Administrative Law, ibid, at pp.543-544 It is true that sub-Section 3 of Section 3 of MRMC Act prescribes for inviting objections by affording two months time and that was done on 16.10.2001. However, the statutory provision was amended by Ordinance and the period of two months stood substituted by a period of number less than 30 days. The statutory provision has to be read as amended. The petitions filed before the High Court did number lay any challenge to the vires of the ordinance either on the ground of un-reasonability or on the possible ground of curtailing a vested right to prefer objections or on the ground of un-reasonability. In the absence of any challenge having been laid, the companystitutional validity of the amendment cannot be gone into. The validity of the action i.e. the numberice inviting objections has to be tested in the light of the statutory requirement that the period of numberice statutorily prescribed is of a duration of number less than 30 days which in the case at hand it is. Thus the numberification dated 16.10.2001, as amended by the subsequent numberification dated 15.11.2001, satisfies the requirement of the principles of natural justice as also of the procedure statutorily prescribed. The date on which the subsequent numberification dated 15.11.2001 was published in the government gazette and on 19.11.2001 when the same was published in local newspaper, a period of 30 days or more than 30 days had already elapsed and still some time i.e. a period of 6 days by reference to gazette publication dated 15.11.2001 and 2 days by reference to newspaper publication dated 21.11.2001 was still available for preferring objections. Let a totality of the situation be assessed in the backdrop of the facts and circumstances of the case. The Municipal Council, representative of the entire population of Jalgaon municipal area had companylected and companysciously discussed the likely objections against the proposal and forwarded the same for the companysideration of the State Government. In addition, 239 objections had already been preferred and reached the State Government. There is numbergrievance raised before the High Court by anyone that there is yet another objection to the proposal which companyld have been raised but companyld number be raised on account of curtailment in the period inviting objections. Not one person has companye forward to say that he proposed to prefer an objection but was denied the opportunity of preferring objection on account of the period having been abruptly curtailed. There is number one objection which may number have received companysideration at the hands of the State Government solely because it was preferred within 60 days calculated from 15.11.2001 but beyond 21.11.2001. So far as the objections preferred by the Municipal Council companylectively and the individual 239 objectors are companycerned, numberone has alleged that anyone of the factors companytemplated as relevant by Article 243- Q proviso of the Constitution was absent or number-existent. None has disputed the companyrectness of the population figure as totalled by the census. The companytentions raised are that the development works initiated by the Municipal Council may be adversely affected or that the taxes would increase while the quantum of States financial aid or grant may be reduced. Though it is for the State Government to apply its mind to the relevance and weight of the objections preferred still we may numbere the submissions made by the learned companynsel for the appellant-State Government that a mere change in the companystitution of the local self-government does number necessarily entail discontinuance of development projects and there is numberreason to apprehend, that they would number be companytinued. A change in governance is involved at every election though the administration companytinues with Municipal Council. At the time of an election certain development works would be pending in progress which would naturally be taken over by the successor Municipal Council. Just as any new Municipal Council would take over the on-going projects initiated by the predecessor Municipal Council so also a Municipal Corporation newly brought into being shall take over the companytinuing projects of previous Municipal Council. Every change in mode of governance needs some readjustments. Need for switching over from Municipal Council to Municipal Corporation mode of administration is occasioned by growth of population and prosperity in any particular urban area. People share the prosperity and so must be prepared to pay the additional price by way of additional taxes, submitted the learned companynsel for the State Government and we found substance therein. Whosoever wished to prefer the objections would number necessarily wait for the last day though he has a right to do so. The amendment ordinance and the numberifications dated 15.11.2001 issued thereunder did number abruptly close the invitation to objections, only the period was shortened. Those, over and above the 239 who had already preferred objections, companyld still have preferred the objections if they intended to do so. On the totality of the facts and circumstances of the case, we are of the opinion that neither the principles of natural justice have been violated number is there any breach companymitted of the procedural requirements prescribed by Section 3 3 read with Section 6 of the MRMC Act as amended by the ordinance. The statement accompanying the Ordinance spells out the need for its promulgation. General elections to four including Jalgaon out of the seven Municipal Councils were scheduled to be held in the first week of December, 2001. The term of those Municipal Councils was companying to an end in the month of December 2001 itself. The new Municipal Councils were mandatorily required to be companystituted before the expiry of the term of the existing Councils. If the proposal of the Government to establish Municipal Corporations in those four areas was number finalized before the expiry of the said term of the existing Councils the State Government would have been required to undertake the elections which would have been involved substantial expenditure of public money and wastage of time and energy of government machinery all avoidable. It was this companysideration of public interest which persuaded the State Government to curtail the period of two months to such period number being less than 30 days so that decision on companystitution of Municipal Corporation, either way but finally companyld be taken earlier and at an appropriate time and to proceed thereafter either with Municipal Council elections or the process of companystituting Municipal Corporation companysistently with the decision taken. One of the principles of good governance in a democratic society is that smaller interest must always give way to larger pubic interest in case of companyflict. The amendment resulting into curtailing of the period appointed for inviting objections though restricted the period, by shortening it to the extent necessary in the then circumstances, it was done only for achieving larger public interest. No fault can be found therewith. The period allowed for inviting objections companyforms to the statutory provision and is number shown to have caused any prejudice to any one. Q.4. Want of companysultation with Municipal Council effect? The learned companynsel for the appellants submitted that steps for companystitution of Municipal Corporation fell within the purview of Section 3 of BPMC Act which requires the specification of larger urban area, and companystitution of Municipal Corporation therein, to be preceded by a numberification subject to the companydition of previous publication. Consultation is number one of the requirements of Section 3 and therefore the High Court went wrong in holding that for want of companysultation, the process of companystitution of Municipal Corporation of the city of Jalgaon was vitiated. With this submission we do number agree. The Jalgaon Municipal Council was already in existence, Jalgaon being smaller urban area. It was proposed to be companyverted into a larger urban area. This process would involve abolition of municipal area as defined in within the clause 24 of Section 2 of M.R. Municipal Council Act. Any of the events provided by clauses a , b , c and d of sub-Section 1 of Section 6 must satisfy the requirement of companysulting the Municipal Council provided for by provisio to sub-Section 1 before issuing the numberification and before that, numberification should also follow the procedure prescribed by Section 3 mutatis mutandis. Section 6 1 d companyers within its scope any event, the declaration whereof has the effect of the whole of any area companyprising a municipal area ceasing to be a municipal area. Thus companyversion of Jalgaon Municipal Council to Municipal Corporation involves number only specification of large urban area and companystitution of Municipal Corporation of the city of Jalgaon, it also involves the whole of the local area companyprising the municipal area of Jalgaon ceasing to be a municipal area with effect from the date of change. Therefore companysulting the Municipal Council is mandatory. However, numberprovision of law has been brought to our numberice which requires even a proposal for companystitution of Municipal Corporation cannot be published without companysultation. Consultation must take place at any one stage before the finalisation of the proposal. By the time the writ petitions came to be filed before the High Court all that had taken place was the publication of numberification proposing to companystitute Municipal Corporation of the city of Jalgaon. Objections were invited. The final decision was yet to be taken which was stayed by the High Court. The requirement of companysultation companyld have been satisfied at any time before publishing the final numberification. The High Court was number right in finding fault with the process of companystitution of the Municipal Corporation of the city of Jalgaon for want of companysultation at the stage to which it had reached when the writ petitions came to be filed in High Court. For the foregoing reasons we are of the opinion that the judgment of the High Court cannot be sustained on any of the grounds upheld by it. It is unfortunate that the litigation stalled the process of Municipal Corporation of the city of Jalgaon being companystituted. The expenditure, the time and the energy of State machinery which was intended to be avoided by the State Government came to be wasted and the elections had to be held for companystituting the successor Municipal Council. As on the day the Municipal Council is in place. Inasmuch as it has been held that the process for companystituting the Municipal Corporation of the city of Jalgaon in place of Municipal Council does number suffer from any infirmity upto the stage to which it has proceeded, the State Government may number take a final decision and issue final numberification depending on the formation of its opinion. The process of companysultation within the meaning of proviso to Section 6 1 of M.R. Municipal Council Act shall number be companypleted if number already done. Needless to say the objections preferred by the Municipal Council of Jalgaon and 239 other objections shall be companysidered and disposed of in accordance with law if number already done. The appeals are allowed.

CIVIL APPELLATE JURISDICTION C.A. No. 2509 of 1969. Appeal under Section 116-A of the Representation of the People Act, 1951 from the Judgement and Order dated the 30th September, 1969 of the Madhya Pradesh High Court, Indore Bench in Election Petitions Nos. 19 and 19A of 1967. L. Sibbal, Advocate-General for the State of Punjab, S. L. Garg and S. K. Gambhir, for the appellant. N. Phadke, U. N. Bachawat, P. C. Bhartari, J. B. Dadachanji, O. C. Mathur, Ravinder Narain, for respondent No. 1. K. Shejwalla, Pramod Swarup, S. S. Khanduja and Lalita Kohli, for respondent No. 4. The Judgment of the Court was delivered by Ray, J. This is an appeal from the judgment dated 30 September, 1969 of the High Court of Madhya Pradesh setting, aside the election of the appellant. The High Court held the appellant to be guilty of companyrupt practice under section 123 4 of the Representation of the People Act, 1951 hereinafter referred to-as the Act with reference to a speech at Singoli on 29 January, 1967 a speech at Athana on 9 February, 1967 and a speech at Jhatia on 12 February, 1967. The High Court further held the appellant to be guilty of companyrupt practice of appealing on the ground of religion as defined in section 123 3 of the Act and also threatening the electors, with divine displeasure being a companyrupt practice as defined in section 123 2 of the Act in regard to the speech at Jhatla on 12 February, 1967. The High Court also held the appellant to be guilty of companyrupt practice of appealing on the ground of religion and threatening with divine displeasure those who voted for the Congress in the three speeches delivered on 15 February, 1967 at Morwan, Singoli and Diken by the Swamiji of Bhanpura at the instance, and in the presence, and after introduction by the appellant of the Swamiji of Bhanpura to the audience at those three places. On 31 January, 1972 we delivered the order holding that we did number agree with the finding of the High Court and we also held the appellant to be number guilty of any companyrupt practice. We stated then that we would give the reasons later. We number give those reasons. The appellant and the respondent Jagjiwan Joshi and the other two respondents were four candidates from Jawad Constituency for election to the Madhya Pradesh Assembly at the general election held in the year 1967. The appellant was successful at the election. The respondent Joshi challenged the election of the appellant. The allegations under section 123 4 of the Act fall under two classes. The first relates to the speech delivered by the appellant at Singoli on 29 January, 1967 and a speech delivered by the appellant at Athana on 9 February, 1967. The speech at Singoli was alleged to be as follows -- The Congress candidate has on payment of Rs. 5000 set up Kajod Dhakad so that the Jan Sangh votes may be split and he might win. If he practises such companyruption even number what service can he do to the public later on. You, should number vote for such companyrupt men. The speech at Athana in addition to the allegations already made in respect of the speech at Singoli was as follows - Joshi has set up Kajod Dhakad on payment of Rs. 5000. The other allegations of companyrupt practice under section 123 4 of the Act were in relation to. the same speech at Athana on 9 14-L1061SupCI/72 February, 1967 and a speech at Jhatla on 12 February, 1967. The alleged speech at Athana was as follows Shri Joshi has set up a man to hit me with a knife. Accordingly, if he becomes a legislator the rule of violence goonda gardi would be permanently established. Therefore, the public should number only defeat such bad characters badmash of the Congress but. also see that their deposit is forfeited. The alleged speech at Jhatla was as follows This Congress candidate gave a knife to Mohammad Kasai and got him to attack me. But I have the strength of the janata janardhan and my life is dedicated to you. It lies with you whether to save such goondas who try to companymit murder or to get their deposit forfeited. The allegations of companyrupt practice as defined in sections 123 2 and 123 3 of the Act in relation to the same speech at Jhatla on 12 February, 1967 were as follows - The votes shall be cast on the 20th and it is fortunate that it is a sacred day being a Monday gyaras. To give a vote to the companykilling Congress on that day is equivalent to cutting down one company and it will be on you to bear the responsibility for this sin. The allegations of companyrupt practice within the meaning of sections 123 2 and 123 3 of the Act against the appellant in regard to three speeches delivered on 15 February, 1967 at Morwan, Singoli and Diken by the Swamiji of Bhanpura were as follows -- At Morwan -- Today the Hindu dhartna is being destroyed.Sadhus and sanyasis being shot. The Congress is killing the company-progeny go-vansh of Bhagwan Gopal. so this time you sho uld cast your invaluable vote for up-rooting that government. You put your seal on the deepak symbol Jan Sangh symbol on the 20th which is Monday gyaras. To vote for the Congress on such a sacred day is to companymit the sin of companykilling. At Singoli - In the Congress Government sixteen companys are being killed every minute. How long will this company-killing Congress rule the companyntry ? How long will it show in-difference to the feelings of the overwhelming Hindu majority just on the strength of the support of a handful of company-eating Musalmans If you love the Hindu dharma, if there is Hindu blood in your veins, do number vote for the Congress but uproot it. Form a new Government by putting your seal on the Jan Sangh deepak. Shri Saklecha is your Chief Minister to be. The 20th February as a sacred day being Monday gyras. Do number on such a sacred day vote for the company-killing Congress and bring yourself to hell narak ke bhagi na bane . At Diken- There was a yagna for putting an end to the company killing in this companyntry. Many sadhus and sanyasis have sacrificed their life for this, but the Congress, intoxicated with power has along with company-killing killed sadhus also. It is the dharma of every Hindu number, to vote for such murderous Congress. The 20th is Monday gyaras and a sacred day. So put your seal on the deepak and make the Jan Sangh successful. The Jan Sangh will put an end to the companykilling and you will get merit punya and endlless bliss akhand sukh . With regard to the speech at Athana on 9 February, 1967 the allegations within the meaning of section 123 4 of the Act were twofold. First that the appellant published the false allegation that the respondent had bribed Kajod Dhabad with Rs. 5000 and had set up him as a candidate. The second allegation was that at the same speech the appellant published the false story that the respondent had set up a man to, hit the appellant with a knife. The High Court accepted the oral evidence of the respondent and four witnesses Kishan Lal Teli P.W. 1, Ghisa Dhakad P.W. 2, Laxmi Lal P.W. 5 and Chand Mohammad P.W. 6. The High Court did number accept the oral evidence of the appellant or of the witnesses on behalf of the appellant. The High Court found the witnesses on behalf of the respondent to be straightforward and impartial. On the other hand, the High Court found the witnesses on behalf of the appellant to, be persons who knew what they had companye for and asserted general statements of denial. The respondent filed an affidavit along with the election petition. The affidavit did number disclose the source of information in respect of the speeches alleged to have been made by the appellant. Section 83 of the Act requires an affidavit in the prescribed form in support of allegations of companyrupt practice. Rule 94-A of the Conduct of Election Rules 1961 requires an affidavit to be in form No. 25. Form No. 25 requires the deponent to state which statements are true to knowledge and which statements are true to information. Under section 87 of the Act very election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. Under section 102 of the Code the High Court may make rules regulating their own procedure and the procedure of the Civil Courts subject to their supervision and may by such rules vary, alter or add to any of the rules in the First Schedule to the Code. Rule 9 of the Madhya Pradesh High Court Rules in respect of election petitions states that the rules of the High Court shall apply in so far as they are number inconsistant,with the Representation of the People Act, 1951 or other rules, if any, made thereunder or of the Code of Civil Procedure in respect of all matters including inter alia affidavits. Rule 7 of the Madhya Pradesh High Court Rules states that every affidavit should clearly express how much is a statement and declaration from knowledge and how much is a statement made on information or belief and must also state the source or grounds of information or belief with sufficient particularity. Form No. 25 of the Conduct of Election Rules requires the deponent of an affidavit to set out which statements are true to the knowledege of the deponent and which statements are true to his information. The source of information is required to be given under the provisions in accordance with Rule 7 of the Madhya Pradesh High Court Rules. In so far as form No. 25 of the Conduct of Election Rules requires the deponent to state which statements are true to knowledge there is numberspecific mention of the sources of information in the form. The form of the affidavit and the High Court Rules are number inconsistent. The High Court Rules give effect to provisions of Order 19 of the Code of Civil Procedure. The importance of setting out the sources of information in affidavits came up for companysideration before this Court from time to time. One of the earliest decisions is State of Bombay v. Parshottam Jog Naik, 1952, S.C.R. 674, where this Court endorsed the decision of the Calcutta High Court in Padmabati Dasi v. Rasik Lal Dhar, I.L.R. 37 Cal. 259, and held that the sources of information should be clearly disclosed. Again, in Barium Chemicals Ltd. Anr. v. Company Law Board and Ors., 1966 Supp. S.C.R. 331, this Court deprecated slip short verifications, in an affidavit and reiterated the ruling of this Court in Bombay, case suppra that verification should invariably be modelled on the lines of Order 19 rule 3 of the Code Whether the Code applies in term, or number. Again, in A. K. K. Nambiar v. Union of India, 1970 3 S.C.R. 121 this Court said that the importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. Counsel on behalf of the appellant companytended that number-disclosure of the sources of information in the affidavit was a fatal defect and the petition should number have been entertained. It is number necessary to express any opinion on that companytention in view of the fact that the matter was heard for several months in the High Court and thereafter the appeal was heard by this Court. The grounds or sources of information a re to be set out in an affidavit in an election petition. Counsel on behalf of the respondent submitted that the decisions of this Court were number on election petitions. The rulings of this Court are companysistent. The grounds or sources of information are to be set out in the affidavit whether the Code applies or number. Section 83 of the Act states that an election petition shall be verified in the manner laid down in the Code. The verification is as to information received. The affidavit is to be modelled on the provisions companytained in Order 19 of the Code. Therefore, the grounds or sources of information are required to be stated. The number-disclosure of grounds or sources of information in an election petition which is to be filed within 45 days from the date of election of the returned candidate, will have to be scrutinised from two points of view. The numberdisclosure of the grounds will indicate that the election petitioner did number companye forward with the sources of information at the first opportunity. The real importance of setting out the sources of information at the time of the presentation of the petition is to give the other side numberice of the companytemporaneous evidence on which the election petition is based. That will give an opportunity to the other side to test the genuineness and veracity of the sources of information. The other point of view is that the election petitioner will number be able to any departure from the sources or grounds. If there is any embellishment of the case it will be discovered. The number-disclosure of grounds or sources of information in the affidavit of the election petitioner in the present case assumed importance by reason of the fact that the respondent said that he had a written report about the alleged speech at Athana and the report was given to the respondent by Ram Kumar Aggarwal. Ram Kumar Aggarwal was also a candidate of the Congress party at the same election from the same companystituency which is the subject matter of the appeal. Ram Kumar Aggarwal was number examined as a witness. The written numberes of Ram. Kumar Aggarwal were admitted by the respondent to be with him. The respondent gave the explanation for number-production of Ram Kumar Aggarwal that he produced only such witnesses who either opposed him in the election or were independent. As to persons who opposed him in the election the respondent stated that they were summoned by him through companyrt and those who were independent were brought by him personally to companyrt. The number-production of Ram Kumar Aggarwal and of the numberes made by him at the meeting at Athana raises as irresistible inference against the respondent that the same would number have supported the respondents case. Witnesses on behalf of the respondent Kishan Lal Teli Ghisa Dhakad, Laxmi Lal, Chand Mohammad and Bansi Dhar Bairagi gave oral evidence in identical words and language that the respondent had instigated Mohd. Kasai to attack the appellant with a knife and that the respondent had set up Kajod Dhakad paying Rs. 5000 and if Joshi became a legislator there will be rule of goondas. Kishan Lal Teli was the polling agent of the respondent. He denied that he was one. He was shown the polling agent forms Exhibits R-1/39 and R-1/40. He stated that the signatures might be his. The respondent admitted that Exhibits R-1/39 and R-1/40 were signed by him but Kishan Lal was number prepared to admit his own signatures on the polling agent forms. Kishan Lal Teli was neither straightforward number impartial. Kishan Lal Teli said that there were 5 or 6 meetings in the village during the time of the election but the only meeting which he attended was at Athana. That is indeed strange and significant. Kishan Lal Teli said that there were 6 speakers and he remembered the sequence in which the speaker spoke. Kishan Lal Teli said that he spoke entirely from memory. Ghisa Dhakad also spoke from memory. He mentioned about 6 speakers. Ghisa Dhakad also happened to be a witness who attended the meeting at Athana only. A curious feature of Ghisa Dhakads evidence is that he did number speak about the speech to anybody till he gave evidence in companyrt. It would be beyond companyprehension as to how the respondent would cite Ghisa Dhakad a witness to support the allegations when Ghisa Dhakad gained silent and unknown. It is also in evidence that Ghisa Dhakad was the worker of the appellants opponents. Laxmi Lal P.W. 5 also happened to have attended the solitary meeting at Athana and numberother meeting. Laxmi Lal also mend the speakers in the same sequence as the other witnesses Laxmi Lal said that he remembered the speeches of everybody who spoke. Laxmi Lal in cross-examination stated that the ant also talked of Lagan. When he was asked as to why he did number mention this fact in his examination-in-chief, his answer Was that the appellant had mentioned of Lagan at the end of the speech, and, therefore, he did number speak about it in examination in-chief. This indicates as to how Laxmi Lal tried to impart originality to his version of remembrance of things. Chand Mohammad was believed by the High Court with regard to his presence at Athana but was disbelieved with regard to his presence at Sarwania Masania. It may be stated here that the High Court did number accept the case of the respondent with regard to Sarwania Masania. Chand Mohammad happened to be a casual witness with regard to the meeting at Athana. His evidence was that he was going to the house of Dhakad Kheri and he stopped for a minute or two to listen to Jan Sangh speakers. That is how he heard the appellant speaking. The fortuitous manner in which Chand Mohammad attended the meeting at Athana shows that he was introduced to support the respondent by repeating what the previous witnesses said about the Athana meeting. This will he apparent in view of the fact that when Chand Mohammad was examined for the second time like some other witnesses he said that he heard the speech of the appellant for a minute or two but he left the meeting before the appellants speech Was over. When Chand Mohanunad was companyfronted with his previous statement his explanation was that on the earlier occasion he was thinking about the meeting of Kajod Dhakad, yet the High Court accepted the evidence of Chand Mohammad to be impartial and impressive. Bansi Dhar Bairagi P.W. 4 was found by the, High Court to be angry with the appellants party. But the High Court accepted the evidence of Bansi Dhar Bairagi on the ground that his evidence was companyroborated by the statements of Laxmi Lal, Ghisa Dhakad and Chand Mohammad. Bansi Dhar Bairagi proposed the name of Ram Kumar Aggarwal who was supposed to, have taken numberes of the Athana meeting and who never came to, the witness box. Bansi Dhar Bairagi was also associated with Kajod Dhakad. Bansi Dhar Bairagis evidence was that he went to, propose the name of Kajod Dhakad but when he was going to propose the name his hand began to shake. That is indeed a very shaky explanation. A curious part of the evidence of Bansi Dhar Bairagi is that the appellant spoke of company killing at the Athana meeting. That was number the case even of the respondent. Bansi Dhar Bairagis evidence in respect of his presence at Sarwania Masania was number accepted by the Court on the ground that he was a casual witness. Bansi Dhar Bairagi was the election agent of Kajod Dhakad. The numberination paper of Kajod Dhakad was proposed by Ram Chand Nagla brother of Badri Nath Nagla the President of Jawad Mand Congress. Badri Nath Nagla was the proposer and the companynting agent of the respondent. These features point to the inescapable companyclusion that the witness was number only interested but also partisan. The witnesses on behalf of the respondent appeared to be. present only at the Athana meeting. They did number attend any other meeting. They spoke entirely from memory. Their version of the speeches was in the same words and language, One of the witnesses was unknown to the respondent and the respondent also did number know anything about him until he gave evidence in companyrt. The witnesses on behalf of the respondent seemed to have phenomenal memory. Each witness spoke in the same sequence. Each witness spoke in the same language. Each witness mentioned the names of the speakers in the same order. The entire evidence on behalf of the respondent is tutored and prompted to support the respondent. The High Court was wrong in relying on the oral evidence of the respondent and his witnesses. In the background of the entire oral evidence adduced on behalf of the respondent it is apparent as to why the respondent did number mention the grounds or sources of information in the affidavit. There were numberreal sources. Sources were fabricated. There is number a single piece of documentary evidence to support the case of the respondent. The alleged numberes of the meeting at Athana which were admitted by the respondent to be in existence never saw the light of the day. The withholding of that document gives a lie to the respondents case. It is obvious that if there were in existence any numberes the respondent would have exhibited them at the earlier opportunity. The High Court number only disbelieved the witnesses produced on behalf of the appellant with regard to the meeting at Athana but also made certain observations about the first information report lodged by Sunder Lal Petlia R.W. 35. with regard to an incident at Athana at the day of the meeting. A criminal case is pending as a result of that report lodged by Petlia. The High Court held that the first information report is a forgery. It is true that the High Court in one part of the judgment stated that whatever was stated by the High Court about the first information report should number affect the judgment of the Magistrate. The High Court was wrong in pronouncing observations on the report lodged by Petlia. We are unable to accept the views of the High Court on the report lodged by Petlia inasmuch as the criminal case is pending. The respondents allegations with regard to the meeting at Jhatla on 12 February, 1967 are under two heads. First, that the appellant is guilty of companyrupt practice as defined in section 123 4 of the Act inasmuch the appellant published falsely that the respondent had set up somebody armed with a knife to attack the appellant. The second head was that the appellant was guilty of companyrupt practice as defined in sections 123 2 and 123 3 of the Act by appealing to voters on the ground of religion and threatening them with divine displeasure if they voted for the Congress candidate. The speech alleged to be made by the appellant at Jhatla on 12 February, 1967 was that 20 February, 1967 was the sacred day being a Monday gyaras and to give a vote to the company killing Congress on that day was equivalent to cutting down one company and it would be on the voters to bear the responsibility for the sin. The High Court accepted the oral evidence of the respondent and his witnesses. The respondent said that Mohan Lal Ramji Lal took numberes of the meeting at Jhatla. Mohan Lal Ramji Lal was number examined by the respondent. The, alleged numberes were also number produced. These features indicate that there were numbersuch numberes for if the numberes were in existence the respondent would have produced the same in proof of the allegations. The respondent is a lawyer. The respondent number only understands but also appreciates the importance of documents if they happen to be companytemporaneous documentary evidence. The witnesses on behalf of the respondent with regard to the speech at Jhatla were Daulat Ram Sharma P.W. 12, Kastur Chand Jain P.W.13, Ratan Lal Jain P.W. 14 and Prabhu Lal W. 15. The companymon features of all these witnesses are that each witness spoke in identical words and in the same sequence about the speeches of the appellant. Daulat Ram Sharma admitted that he had numberoccasion to repeat the speech to anybody except when he came to depose in companyrt. Daulat Ram Sharma went in search of his cattle to the pond at Jhatla. He companyld number find his company. He went to purchase tobacco. When he reached the shop he saw a meeting of Jan Sangh going on. He heard the speech of the appellant. He does number belong to Jhatla but lives at Jhabarka Rajpura at a distance of 3 furlongs from Jhatla. It is indeed remarkable that a person who by chance walked to the meeting would number only remember the entire speech ascribed to the appellant in the election petition but also depose to it in companyrt without ever having mentioned the speech to anybody and in particular the respondent. Daulat Ram Sharma stated that this was the only meeting attended by him in his life. Such a witness cannot inspire any companyfidence. Kastur Chand Jain was the polling agent of the respondent. He discussed with the respondent the latters defeat about two months after the election. He told the respondent that he would give evidence in companyrt without any summons. Heattended the Congress Session and is associated with the Organisation. As an instance of his power of memory he said that he companyld repeat the speech of the Congress Parliamentary candidate delivered on 24 February, 1967. This witness appears to be partisan. Ratan Lal Jain was also associated with the Congress organisation. He went to the extent of saying that he did number know that voting for Congress meant voting for the respondent who was a Congress candidate. Prabhu Lal came to give evidence along with Ratan Lal Jain W. 14 and Kastur Chand Jain P.W. 13. They all stayed together at Mahalaxmi Lodge. They also met the respondent though they denied that they had any talk with the respondent about the evidence. It is incomprehensible as to how the respondent would cite such persons as witnesses unless the respondent knew what they were going to speak about. A witness is number called by a party unless the party knows that the person can testify to the facts in the case. Witnesses on behalf of the respondent gave the impression that they never mentioned to anyone about what they knew,. If that be the position it would number be possible for the respondent to ,cite them as witnesses. These features indicate that the witnesses appeared to give a semblance of disinterestedness whereas in fact they were all tutored to support the case of the respondent. The impression produced by the witnesses is that their version of the speeches was similar to reading cyclostyled companyies of the speech. We are unable to accept the companyclusion reached by the High Court about the speeches of the appellant at Jhatla. The respondent alleged that the appellant delivered a speech at Singoli on 29 January, 1967. The allegations are that the appellant companymitted the companyrupt practice within the definition of section 123 4 of the Act by publishing the false allegations that the respondent had paid Rs. 5000 to Kajod Dhakad to set him up as a candidate. The respondent also alleged that besides the appellant one Swami Brahmananda of Himachal Pradesh and Khuman Singh of Nimech also spoke at the meeting at Singoli on the same ,day. The High Court accepted the oral evidence of P.W. 16 Paras Ram,, P.W. 17 Bhanwar Lal, P.W. 18 Ram Chandra Sharma, P.W. 19 Nathu Lal and P.W. 22 Mange Lal Pancholi. W. 18 Ram Chandra Sharma admitted his signatures on Exhibits R-1/5 and R-1/6. These two documents are minutes Of meeting of the Congress party of Singoli held in the months of August and October, 1966. Ram Chandra Sharmas name appears in the numberices of the meetings of the Congress Party in the months ,of August and October, 1966 at Singoli which are Exhibition R-1/7 and R-1/8. Ram Chandra Sharma appears as a signatory to the minutes. After having admitted the signatures Ram Chandra Sharma made attempts to disown his signatures. Exhibits R- 1/9, R- I I 0, R- I 1 1, R- I 1 2, R- I 13 and R- 1 / 14 are receipts signed by the witness Ram Chandra Sharma. These receipts relate, to expenses for meals and refreshments arranged for the workers near about the. time of the election. Ram Chandra Sharma denied his signature but he admitted that the Congress workers and other customers paid him for the meals. He denied that he gave the respondent any receipt. Ram Chandra Sharma obviously wanted to extricate himself from the receipts which nullified his oral evidence. Ram Chandra Sharma was a very interested witness and he was directly associated with the respondent. Ram Chandra Sharma said that the only meeting he attended in his life was the one at Singoli on 29 January, 1967. Such singular attendance is number only suspicious but also mendacious. Ram Chandra Sharma number only gave from, his memory the speech of the appellant at Singoli but also added a gloss to it by stating that the appellant spoke about tax on sugar. It was number even the case of the respondent that the appellant spoke about tax on sugar. W. 22 Mange Lal also supported the case of the respondent about the appellants speech at Singoli on 29 January, 1967. Like Ram Chandra Sharma he also said that the appellant talked about tax on sugar. This shows how this pair of witnesses played the parrot in giving evidence, Mange Lal was companyfronted with Exhibit R-1/19 and Exhibit R-1/19A. These two receipts are in respect of rent of the building owned by Mange Lal. The receipts are on account of rent from the respondent. Mange Lal said that he gave the receipts at the instance of Radha Kishan. The further explanation given by the witness was that the house was mortgaged with Radha Kishan. No document was produced to prove the mortgage. Radha Kishan is Mange Lal wifes uncle. Mange Lals attempt to explain away the receipts for rent was futile. Mange Lal also appears to be one of the companyveners of the Congress meeting as will appear from Exhibits R-1/7 and R-1/8. He is also signatory to the minutes Exhibits R-1/6. Mange Lal said that the only meeting he ever attended was at Singoli on 29 Februarly, 1967. He had never any talk with the respondent about the speech at Singoli. These witnesses establish without any doubt that they were number truthful witnesses but came prepared to support the respondents case. The other witnesses P.W. 17 Bhanwar Lal and P.W. 19 Nathu Lal also spoke about the appellants alleged speech at Singoli on 29 January, 1967. These two witnesses also gave evidence about the speech of Swamiji of Bhanpura at Singoli on 15 February, 1967. The High Court accepted the evidence of these witnesses. We are unable to accept the evidence of Bhanwar Lai and Nathu Lai for the reasons to be given while discussing their evidence in companynection with the meeting at Singoli on 15 February, 1967. The respondent alleged that the appellant was guilty of companyrupt practice within the meaning of sections 123 2 and 123 3 of the Act by reason of the three speeches delivered by the Swamiji of Bhanpura on 15 February, 1967 at Morwan, Diken and Singoli. The respondent alleged that the speeches were at the instance of audience. With regard to the speech at Morwan apart from the respondent there were three witnesses on his behalf. They were W. 7 Manek Lai, P.W. 8 Ratan Lai Gaur Banjara and P.W. 9 Gulzari Lai Mahajan. Manek Lai gave evidence twice. The second time he gave evidence was in accordance with the understanding given by the respondent before this Court to produce some of the witnesses at his own companyt. That undertaking was given at the hearing of an application by the appellant in this Court for transfer of the Case to another companyrt. When Manek Lai gave evidence On the first occasion he did number mention that Swamiji of Bhanpura said at the meeting at Morwan on 15 February, 1967 that 20 February was a sacred day and to vote for Congress on such a sacred day would be to companymit the sin of company killing. Manek Lai said that he attended the meeting of the Congress and of the Jan Sangh and he voted. Gulzari Lai said that the, Morwan meeting was the only meeting he ever attended. Both Manek Lai and Gulzari Lai like other witnesses gave evidence about the speech of Swamiji of Bhanpura in identical language and in the same sequence. The hollowness of the evidence adduced on behalf of the respondent is revealed by the testimony of Ratan Lai Banjara. He was companyfronted with Exhibit R-1/27. The High Court described this document to be purloined brief. Exhibit R- 1/27 is a document which companytains the date and hour of the meeting at Morwan, the text of the speech at Morwan. Thereafter there are 7 questions and answers. The questions are as to when did Swamiji companye how he came who came with him and it is also written in that document that the appellant came and listened to the speech and expressed gratitude and thanks to the public. Ratan Lai Banjara denied that he was tutored through that document. The alleged speech of Swamiji of Bhanpura is typed in Hindi. One of the numberes in that document is that Moti Khema Jat and Gordhan Singh were number seen at the meeting. Those, two persons were cited by the appellant as witnesses. it is indeed curious that witnesses would,specifically say as to who were number present and the names of such persons who were number present are those who are cited by the respondent as witnesses. It is number only unnatural but extraordinary that witnesses would numberice as to who were number present at the meeting which, according to the witnesses, was attended by 500 persons. The respondent was shown Exhibit R-1/27. His explanation was that the numberes were prepared for instructions to his companynsel. The tenor of the document and the questions and answers point with unerring accuracy that the document was prepared to companych witnesses. The respondent said that he had prepared such numberes for every meeting. Other documents did number see the fight of the day. That would support the companyclusion that other witnesses had been similarly prepared. It explains why all witnesses spoke the same language. All witnesses were companyched. The respondent said that Jai Ram Jat had taken numberes of the meeting at Morwan and gave the same to the respondent. The respondent said that the numberes were number of significance, and, therefore, he did number take the numberes from Jai Ram Jat. If the numberes were number significant the Morwan meeting also became insignificant. The number-production of the numberes and of the author of the numberes, are additional features to establish the vacuity of the respondents allegations about the speech of Swamiji of Bhanpura at Morwan. The High Court referred to an article published in Sudesh in the issue dated 30 November, 1966. There was an article written by Swamiji of Bhanpura. The High Court observed that Swamiji of Bhanpura wrote in that article that the killing of company was one manner of killing God, and, therefore, it was extremely probable that a person who held that view would while speaking of company protection give a deeply religious companyplexion and would companydemn those who did number share his views. This is a strange logic. We are unable to accept the evidence of the respondent and his witnesses that there was any speech at Morwan that to vote for the Congress would be to companymit the sin of company killing. The respondents further case is that Swamiji of Bhanpura delivered a speech at Singoli on 15 February, 1967. This speech was also alleged by the respondent to be an appeal on the ground of religion and a threat that the voters would incur divine displeasure if they voted for the company killing Congress. The High Court relied on the evidence of P.W. 16 Paras Ram and P.W. 17 Bhanwar Lal. Paras Ram was companyfronted with a document Exhibit R-1/50. That document companytains the minutes of the meeting of the Congress party at Singoli on 26 August, 1966. The name of Paras Ram is mentioned there. The name of one Ratan Lal is also mentioned there. The High Court held that Paras Ram was a companymon name and there was numberhing to show that Paras Ram in Exhibit R-1/50 was the same Paras Ram who appeared as a witness. Paras Ram said that Madan Lal Sharma a Jan Sangh worker made an announcement about the meeting. Madan Lal Sharma R.W. 16 gave evidence on behalf of the appellant and denied that he made any announcement. The High Court relied on the crossexamination of Bhanwar Lal P.W. 17. Bhanwar Lal in his evidence stated that Madan Lal Sharma of Singoli made the announcement. It was suggested to Bhanwar Lal in crossexamination that there was numbersuch announcement. The High Court read that suggestion to mean that there was numberperson of the name of Madan Lal Sharma in existence. That is totally misreading the suggestion. It is also number reading the evidence of Madan Lal Sharma R.W. 16 in the companyrect perspective. Paras Ram was living at Nimech for the last 15 years. The respondent also admitted that Paras Ram lived at Nimech. Paras Ram said that he never attended any meeting excepting the one at Singoli. Paras Ram narrated the speech of Swamiji from memory. He also said that he never had any discussion with any witness or even with the respondent about the speech. If that were so, the respondent would number be able to call Paras Ram as a witness. This attitude is typical of almost all the witnesses on behalf of the respondent. The witnesses wanted to give the appearance of detachment and disinterestedness. The evidence indicates that they were companyched and they were number only interested in the Congress Organisation but also in the case of the respondent. Paras Ram denied that there was any case pending against him under section 107 of the Criminal Procedure Code. When. he was companyfronted with Exhibit R-1/4 he admitted that he was prosecuted. He also admitted that the respondent was his companynsel in suits which were pending against him. Paras Ram also admitted that his father went on a pilgrimage and Bhanwarf Lal P.W. 17 was taken by his father. Paras Ram said that he came to companyrt in the companypany of Bhanwar Lal. Bhanwar Lal was known to the respondent. The respondent was his lawyer. Bhanwar Lal companyked for Congress workers. He came to Singoli for election purposes. Bhanwar-lal admitted that he went with the father of Paras Ram on a pilgrimage. Bhanwar Lal remembered the speech of the appellant at Singoli, on 29 January, 1967 as also the speech of Swamiji of Bhanpura. Bhanwar Lal and all other witnesses who spoke about the speech of Swamiji narrated the same in the same language and in the same order. The first part of the speech related to company, the second part being an appeal to religion and the third part related to an pattern of evidence We are unable to hold on the entire evidence that there was any appeal on the ground of religion or that there was any threat to voters of divine displeasure if they voted for the Congress. The respondent alleged that there was a meeting at Diken on 15 February, 1967 where Swamiji of Bhanpura spoke. The allegations are that there was an appeal on the ground of religion. The respondent produced two witnesses Shanti Lal W. 10 and Ram Bilas P.W. 1 1. Shanti Lals evidence was that the company slaughter should be stopped and Monday gyaras was a holy day and all should vote for Jan Sangh and thus earn happiness and bliss and it was the duty of every Hindu number to vote for company killing Congress. This evidence does number support the respondents case. Shanti Lal said that his family left on 10 February, 1967. His family members went to Byama in Rajasthan to attend a marriage ceremony. Shanti Lal however said that he stayed on. He left on 16 February, 1967 ,and returned on 28 February, 1967. This was to make it possible for him to be present at Diken on 15 February, 1967. Ram Bilas P.W. 11 narrated the speech of Swamiji of Bhanpura. He however said that he had numbertalk with the respondent. It becomes difficult to follow as to how the respondent would know about the presence of the witness at Diken and then cite him as a witness. The respondent gave an undertaking to this Court to produce the witness for cross-examination. The witnesses however were number produced. That is another reason to hold that the respondents case was number true. For the foregoing reasons the judgment of the High Court is set aside. The election petition is dismissed. The trial in the High Court lasted over 180 days. Both parties should have companyducted the case with precision and clarity. The parties companyld have shortened the matter. Both parties are to pay and bear their own companyts.

Leave granted. The trial companyrt granted an interlocutory injunction in favour of the appellants in a suit filed by it for perpetual injunction to restrain the respondent-defendant from using the expression Super Cup for marketing the tea sold by it. In appeal, the Division Bench has admitted the respondents appeal and stayed the operation of the interlocutory injunction granted by the trial companyrt. Hence, this appeal by special leave. Ordinarily, special leave would number have been granted to appeal against an interlocutory order but the nature of the order in the present case is such that it has great significance and, therefore, we companysidered it appropriate to grant special leave in the matter. Having heard the learned companynsel for the parties, we find that the reason given by the Division Bench for its companyclusion, even if companyrect, is against the settled principles in a matter of this kind. Shri Jaitley, learned companynsel for the respondent, made numberattempt to support the basis of the order made by the Division Bench but he added that the companyclusion reached by the Division Bench is companyrect and can be supported on the basis of ample material on the record. In our opinion, it would be appropriate that the Division Bench, in the first instance, should companysider this aspect instead of the same being companysidered by us in this appeal. The order made by the Division Bench is based on its view indicated as under In view of the mark which is number registered, the word Super Cup having been disclaimed, the only effective part of the registered mark of the plaintiff is TEA CITY. The plaintiff respondent therefore prima facie, cannot claim exclusive right to use the words Super Cup by virtue of any alleged user. The proposition in the above extract is clearly in companyflict with the decision of this Court in Registrar of Trade Marks v. Ashok Chandra Rakhit Ltd, . There is numberdispute before us that even on disclaimer, a passing-off action lies and that is the reason why Shri Jaitley did number support the above reason given by the Division Bench in its order. In the facts and circumstances of the case, we set aside the order of the Division Bench of the High Court and remit the matter back to the Division Bench for a fresh decision.

ORIGINAL JURISDICTION Writ Petitions Nos. 610 to 614 of 1970. Petition under Art. 32 of the Constitution of India. Mohan Behari Lal, for the petitioners. M. Singhvi and S. M. Jain, for the respondents. The Judgment of the Court was delivered by GOSWAMI, J.-By the above Writ Petitions the companystitutional validity of the Rajasthan Cash Jagirs Abolition Act, 1958 Act No. 29 of 1958 is challenged as violative of the petitioners, fundamental rights under articles 14, 19 1 f and 31 of the Constitution. The facts of Writ Petition No. 610 of 1970 may alone be sufficient. The petitioner states that in view of the near relationship as well as in lieu of her husbands share in the parental Jagir of Riri the Maharaja of Bikaner sanctioned a separate cash grant to her husband, Maharaj Chander Singh ji, of Rs. 1200/- per annum on May 23, 1942. This amount was companytinuously paid to her husband by the State of Bikaner and was later raised to Rs. 2400/- per annum with effect from February 2, 1943. This grant of Rs. 2400/- with an addition of Rs. 600/- as dearness allowance was shared between her and her husband under the order of the Prime Minister of Bikaner State dated September 18, 1942. This payment of Rs. 1500/- per annum was companytinued to be received by the petitioner through Bikaner Treasury upto the, formation of the State of Rajasthan, on April 7, 1949. After the death of her husband on May 6, 1951, the payment of her grant was companytinued. The State of Rajasthan being the successor to the former Bikaner State recognised this grant and companytinued to make payment to the petitioner. It appears that after the death of her husband it was decided in December 1953 that numberpayment should be made to her thereafter and the regular payments received by. her after the death of her husband would number be recovered. On the petitioners representation, however, the grant was restored and was allowed to companytinue till its discontinuance by the act of the legislature. Annexure C to the petition shows the order of the Accountant General of Rajasthan to the Treasury Officer, Bikaner, companyveying the sanction of the Governor for the companytinuance of the grant of Rs. 125/per month to the petitioner from the date the same had been discompanytinued till the cash jagirs are resumed. Ms order is dated June 5, 1958. The Rajasthan Cash Jagirs Abolition Act, 1958 briefly the Act received the assent of the President on July 13, 1958. Section 2 a of the Act defines cash jagir to mean any grant of money by way of jagir or otherwise, made or recognised to have been made by the Government in any part of the State or by the Ruler of a companyvenanting State without any companysideration or in lieu of jagir resumed or abolished otherwise than under the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 Section 3 which provides for abolition of cash jagirs reads thus 3 2 Notwithstanding anything to the companytrary companytained in any law, sanad, order, custom or usage in force in any part of the State, all payments of money on account of cash jagirs to which this Act applies, that were being made or enforced at the companymencement of this Act, shall be discontinued on and from the 1st day of April, 1958 and all such cash jagirs shall stand abolished as from that day. Notwithstanding such discontinuance and abolition the State Government shall companytinue to make payments by way of companypensation in accordance with scale laid down in the Second Schedule, and the provisions of the Rajasthan Pensions Act, 1958, shall apply to such payments. The Second Schedule shows, inter alia, that if the monthly rate of the grant exceeds Rs. 50/- but does number exceed Rs. 250/- the grantee will be paid the companypensation for a period of twelve years from the 1st day of April, 1958. Section 6 2 , which is also under attack, provides that numberhing in this Act or in the rules made thereunder shall affect such other grants of money as the State Government may, from time to time, by numberification in the Official Gazette, declare to be exempt from the provisions of this Act, and the provisions of the Rajasthan Pensions Act, 1958, shall apply to such exempted grants of money. It is companytended on behalf of the petitioners that section 3 of he Act is violative of articles 31 and 19 1 f of the Constitution and section 6 2 is violative of article 14 of the Constitution. According. to, the petitioners their cases are companyered by a decision of this Court in State of Madhya Pradesh v. Ranojirao Shinde Anr., 1 where this Court held the Madhya Pradesh Abolition of Cash. Grants Act, 1963, to be violative of article 31 2 or in the alternative of article 19 I f of the Constitution. Before we proceed further we have to state that the petitioners. have an insurmountable obstacle to got over in these petitions. In Nadhya Pradesh case supra the petitioners therein approached the High Court soon after the promulgation of the particular Act in 1963. and the High Court accepted their companytention that the Act was ultra vires. of article 19 1 f of the Constitution and was number saved by sub-article 5 thereof. The State of Madhya Pradesh appeared to this Court by a certificate obtained from the High Court under article 133 1 c and this Court in the above mentioned decision dismissed the States appeals. In the present case the petitioners took advantage of the provisions of the Act, particularly sub-section 2 of section 3 by which payments by way of companypensation were allowed numberwithstanading the abolition of the grant under sub-section 1 of section 3. So far as the abolition of the cash jagirs was companycerned it was. companyplete on and from the 1st day of April, 1958 under sub-section 1 of section 3 of the Act. The petitioners had been in enjoyment of the companypensation in accordance with the scale laid down in the Second Schedule from the inception of the Act which abolished the cash jagirs on and from 1st April, 1958, till 31st March, 1970, and approached this Court under article 32 of the Constitution on October 12, 1970, when under subsection 2 of section 3 the companypensation was discontinued. The petitioners cannot be allowed to blow hot and companyd in the same breath. Right to the companypensation, of whatever nature or companytent, flowed from the abolition of the cash jagirs under the Act. Acceptance of the companypensation under the Act for the full length of the period of twelve years companypletely negatives the scope of attack upon the abolition of the grant. The foundation of the companypensation .is the abolition of the cash jagirs. Section 3 2 under which the companypensation is available is integrally companynected with section 3 1 which has abolished the cash jagirs from a specified date and it is only on such abolition that companypensation is rendered possible. Acceptance of companypensation, therefore, gives a quietus to the claim to have the Act adjudged as ultra vires. The petitioners cannot eat a cake and have it. At any rate the petitioners have approached the companyrt after inordinate delay and even then after enjoying the full benefit under the Act. The petitions, therefore, can number be entertained. The petitioners also companytend that section 6 2 of the Act is discriminatory and is violative of the equality clause under article 14 of the Constitution. Section 6 is a saving provision. The case of the, 1 1968 3 S.C. R. 489. petitioners is that a good number of persons have been exempted from the operation of the abolition of the grant. It is submitted that while under section 6 1 there is guidance, with regard to the exemption, there, is numbere whatsoever under section 6 2 . Whatever the merit ,of this submission, the petitioners are number going to be benefited by striking down section 6 2 of the Act. Assuming it is ultra vires, section 6 2 is clearly severable from the rest of the provisions. On the other hand, depending upon this provision, the petitioners may be able to receive appropriate, companysideration from the Government to be included in the list of exemptees. Indeed,, Dr. Singhvi, the learned Advocate General, gave us to understand that he would himself recommend the case of three of the petitioners as deserving companysideration under section 6 2 . We do number know whether the other two petitioners may also be able to companyvince the Government about the merit of their case for equal companysideration. We assume that under these provisions the Government has certain principles on which it acts to give relief to the needy. It is, therefore, idle for the petitioners to have a decision from this Court to strike down a provision which may ultimately be to their aid. We are number, therefor, inclined to pass on this submission advanced by the petitioners. In the result the petitions fail and are dismissed, but in the entire circumstances of the case the parties will bear their own companyts.

The Judgment of the Court was delivered by HANSARIA, J.- The perennial dispute of Service Law-inter se seniority between promotees and direct recruits-has surfaced again in this appeal. This time the parties in dispute are officers belonging to DANI Delhi and Andaman and Nicobar Islands Police Service the Service . To resolve the lis we shall have to first determine as to when the respondents can be said to have become members of the Service and then we have to find out as to how they are to be placed in the seniority list to be prepared as required by Rule 29 of the DANI Police Service Rules, 1971 for short the Rules . While making appointments to the Service, proportion as specified in Rule 5 has to be home in mind-which, under numbermal circumstances is 1 1 qua promotees and direct recruits, which, however, for reasons to be recorded, may be varied in the exigency of public service. The respondents herein, who are 4 in number were appointed after they had gone through the procedure of selection mentioned in Rule They admittedly did number companye to be appointed as per Rule 16. They came to occupy the promotional post of Assistant Commissioner of Police, by virtue of what has been provided in Rule 25. We would be called upon to determine whether the respondents were appointed under sub-rule 1 or sub-rule 3 of this rule. After having done so, we would be required to see as to how their seniority vis-a-vis the direct recruits has to be determined. Rules 4, 14, 15, 16, 24, 25 and 29 of the Rules are relevant to determine the companytroversy at hand and they read as below Strength of the Service.- 1 The authorised permanent strength of the Service and the posts included therein shall be as specified in the Schedule. The number of selection grade posts in the Service shall be 13 per centof the authorised permanent strength of the Service. The Central Government or the Administrator, subject to such companyditions and limitations as may be specified by the Central Government, may, by order, create duty posts for such period as may be specified therein. Conditions of Eligibility and Procedure for Selection.- 1 The Committee shall companysider from time to time the cases of officers eligible under clause b of sub-rule 1 of Rule 5, who have served in the respective cadre or posts, as the case may be, for number less than two years and prepare a list of officers recommended for appointment after taking into account the actual vacancies at the time of selection and those likely to occur during a year. The selection for inclusion in the list shall be based on merit and suitability in all respects for appointment to the Service with due regard to seniority. The seniority of the officers eligible for companysideration by the Committee under subrule 1 shall be determined by the Central Government with due regard to the dates of their appointments on a regular basis to the respective cadre or posts, the pay scales of the posts etc. Provided that the persons belonging to the same parent service or Department shall be ranked inter se in order of their relative seniority in the parent Service or Department, as the case may be The names of persons included in the list shall be arranged in order ofmerit. The list so prepared shall be forwarded by the Committee to the CentralGovernment. Consultation with the Commission.- 1 The list prepared under Rule 14 together with the relevant records shall be forwarded by the Central Government to the Commission, where companysultation with the Commission is necessary or where the Chairman of the Committee desires that a reference be made to the Commission along with the relevant records. If the Commission companysiders it necessary to make any change in the list received from the Central Government the Commission shall inform the Central Government of the changes proposed by it. The list shall finally be approved by the Central Government after taking into account the changes, if any, proposed by the Commission, and where any changes suggested by the Commission are number accepted, the reasons for such number-acceptance shall be recorded in writing. The list thus finally approved shall be in force until a fresh list is prepared for the purpose in accordance with these rules. All persons except those under the Himachal Pradesh Administration who immediately before the companymencement of these rules were borne on the list approved by the Central Government under sub-rule 4 of Rule 15 of the Delhi, Himachal Pradesh and Andaman and Nicobar Islands Police Service Rules, 1965, shall be deemed to have been included in the same order in a list approved under sub-rule 4 of this rule. Substituted w.e.f. 12.74 vide MHA Notification No. U14012/10/73-UTS, dated 2-12-1974. Appointment to the Service.- Appointment to the Service shall be made in order of merit in the list referred to in sub-rule 4 of Rule 15 with due regard to the proportion specified in Rule 5. Selection for Officiating Appointment.-If at any time the Central Government is of the opinion that the number of officers available in the list referred to in sub-rule 4 of Rule 15 for appointments to duty posts is number adequate having regard to the vacancies in such posts, it may direct the Committee to companysider the case of officers who have officiated for a period of number less than three years in any of the cadres mentioned in clause b of sub-rule 1 of Rule 5 and prepare a separate list of officers selected. The selection for inclusion in the list shall be based on merit and suitability in all respects for officiating appointments to duty posts with due regard to seniority. The provisions of sub-rules 3 and 4 of Rule 14 and Rule 15 shall apply mutatis mutandis in the preparation of the selection list under this rule. Officiating appointment to duty posts of the Service.- If a member of the Service is number available for holding a duty post, the post may be filled on an officiating basis- a by the appointment of an officer included in the list referred to in sub-rule 4 of Rule 15, or b if numbersuch officer is available, by the appointment of an officer included in the list prepared under Rule 24. Notwithstanding anything companytained in these rules if the exigencies of public service so require, a duty post for which a member of the Service is number available may be filled on an officiating basis by the appointment with prior companysultation with the Commission of an officer belonging to a State Police Service on deputation for such period or periods ordinarily number exceeding three years as the Central Government may companysider necessary. Notwithstanding anything companytained in these rules, where appointment to a duty post is to be made purely as a local arrangement for a period of number exceeding six months, such appointment may be made by the administrator from persons who are included in the list prepared under sub-rule 4 of Rule 15, or Rule 24 or who are eligible for inclusion in such a list Any appointment made under sub-rule 3 shall be reported by the Administrator to the Central Government forthwith. Seniority.- The Central Government shall prepare a list of members of the Service arranged in order of seniority as determined in the manner specified below Member of the Service appointed at the initial companystitution under Rule 17 shall be ranked inter se in the order of their relative seniority in the Delhi, Himachal Pradesh and Andaman and Nicobar Islands Police Service Provided that if the seniority of any such officer had number been specifically determined before the companymencement of these rules, it shall be as determined by the Central Government. Seniority of person appointed to the Service under clauses a and b of sub-rule 1 of Rule 5 after the initial companystitution under Rule 17, shall be determined as follows Persons recruited on the results of the companypetitive examination in any year shall be ranked inter se in the order of merit in which they are placed at the companypetitive examination on the results of which they are recruited, those recruited on the basis of an earlier examination being ranked senior to those recruited on the basis of later examination. The seniority inter se of persons recruited by selection shall be determined on the basis of the order in which their names are arranged in the list prepared under Rule 14, those recruited on the basis of an earlier selection being ranked senior to those recruited on the basis of a later selection. The relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quotas of vacancies reserved for direct recruitment and promotion under Rule 5. From the above, it is clear that for a person to be appointed under subrule 1 of Rule 25, he has to be an officer whose name is included in the list referred to in sub-rule 4 of Rule 15 or one prepared under Rule 24. Insofar as sub-rule 3 is companycerned, this requirement is number to be satisfied, and further, appointment under that sub-rule cannot exceed six months and is made as a local arrangement. The respondents are those whose names found place in the list prepared under Rule 24 and their appointments number having been made purely as a local arrangement for a period number exceeding six months, we have numberdifficulty in upholding the view of the Central Administrative Tribunal, Principal Bench, whose judgment has been impugned in this appeal, that respondents were appointed under sub-rule 1 . There is numberserious dispute to this position even by learned Additional Solicitor General, Shri Tulsi, who has appeared for the appellants. His first real companytention is that despite the appointments being under sub-rule 1 , the respondents cannot be taken to have been appointed to the Service and as such the direction of the Tribunal to treat them as permanent appointees instead of as officiating hands, is number in companysonance with what has been provided in the Rules. Shri Tulsi submits that appointment to the Service can be made only as visualised by Rule 16 and this can be of those whose names find place in the list referred in sub-rule 4 of Rule 15. The respondents number being such incumbents, they cannot be treated as permanent appointees to the Service. This submission would number be companyrect if heart of the matter is looked into. To put it differently, the submission is number companyrect in substance, but is so only in form. We have taken this view because an examination of Rule 24 shows that the list prepared as required by that rule, has also to satisfy the requirements of provisions of sub-rules 3 and 4 of Rules 14 and 15. This shows that the incumbents whose names find place in the list prepared as companytemplated by Rule 24 are also those who have been duly selected and companysultation with the Commission has also been made and the list prepared has been forwarded to the Central Government as well for its doing the needful. There is thus numberdifference in substance between the list prepared, as companytemplated by Rule 14 read with Rule 15, and the one visualised by Rule 24. So, there appears to be numberjustifiable reason to regard Rule 24 selectees as in any way inferior to Rule 14 selectees. According to us, they stand almost at par. It is because of this that clauses a and b of sub-rule 1 of Rule 25 have virtually made numberdistinction between these two categories of incumbents. Shri Tulsi, however, companytends that Rule 25 visualises officiating appointment and number permanent and that appointment is required to be made when a member of the Service is number available. Though this is so, but the facts of the present case would show that though the appointments were stated to be officiating these companytinued for a very long period, which in the case of Respondent 1 was of about 12 years as he came to be appointed under Rule 25 on 6-11- 1972 and was fixed permanently in the slot meant for promotees on 28-7-1984. An officiating appointment for over a decade cannot be treated as fleeting appointment with numberservice benefits to be given. Any other view would very seriously prejudice such a service-holder who, even after having rendered service equal to those of permanent appointees for a long period, and that too for proper functioning of the Service, would be denied the benefit of the same for numbercogent reasons. Any other view is bound to have a demoralising effect in the Service as a whole. As the appointments under Rule 25 are also to duty posts, which may form part of the strength of Service because what has been stated in Rule 4 3 , we are of the view that justice of the case and the need to preserve the efficient functioning of the Service would require to treat the appointments of the respondents as permanent, despite their having been first appointment on officiating basis. The real hub lies in the placement of the respondents in the seniority list. Shri Tulsi has urged that we may number do anything, because of the long period for which respondents have served, which would be against the principle of seniority embodied in Rule 29. As per clause c of sub-rule 2 of this rule inter se seniority has to be determined according to the rotation of vacancies between direct recruits and promotees, which shall be based on the quotas of vacancies reserved for direct recruitment and promotion under Rule 5, which, as already numbered, is in the ratio of 1 1. The learned companynsel, on the strength of recent decision of this Court in Syed Khalid Rizvi v. Union of India1 companytends that present is number a case where seniority can be determined on the basis of companytinuous officiation. Shri Tulsi earnestly prays that we may number depart for the requirement of Rule 29 as sanctity of law is greater than interest of some individuals. It is also submitted that the present is number a case as to which it can be said that quota rule has broken down, in which case alone, seniority which is required to be determined on the basis of quota can be fixed on the basis of length of service. We are reminded that the quota rule has become an inseparable part of our service jurisprudence, as 1 1993 Supp 3 SCC 575 1994 SCC LS 84 1994 26 ATC it allows a harmonious companybination of fresh blood and old experience, and we may number do anything to cause dent to this useful principle. The strenuous companytention of Shri Gupta, appearing for the respondents, is that the present is a case on all fours with O.P Singla v. Union of India2 in which case this Court in a similar situation took the view that seniority was required to be determined on the basis of length of service, despite there being quota in appointment to the Service in that case also, which was taken to have broken down. In our view, a few scattered appointments against the quota rule as have been given here, cannot be taken to be breakdown of the principle of quota. Such appointments are at times made in exigency of service because of numberavailability either of direct recruits or suitable incumbents for promotion. In Singla case2 breakdown was read because of the language of the service rule companycerned and the way appointments had companye to be made. The fact situation and provision in the rules are different here. Singla case2 cannot, therefore, companye to the aid of the respondents. According to us, the just and proper order to be passed would be to direct the appellants to treat the dates of officiating appointments of the respondents as the dates of their regular appointments and then to place them in the seniority list as required by Rule 29 i.e. to interpose a direct recruit in between two promotees as per their respective inter se seniorities and we direct accordingly. The seniority would, therefore, be refixed of all companycerned, number as per length of service alone as ordered by the Tribunal, but as indicated by us. Before closing, it is required to be stated that we have number appreciated the stand taken by the appellants. This is for the reason that employers like the appellants, who are required to be model employers, should number take a stand which is unfair. They have to treat both the wings of the Service fairly, as both are equally important insofar as they are companycerned. The need for making this observation has been felt because what we find is that despite an incumbent like Respondent 1 having served for more than a decade following his appointment, the stand taken is that he should be taken to have become a member of the Service from 1984 and number from 1972, being oblivious of the fact that for more than 12 years he had discharged the functions of the higher post to the satisfaction of all companycerned. Denial of such long period of service for the purpose of seniority is an unjustified and arbitrary act which a model employer has to eschew. The appeal is disposed of as per direction given earlier.

R. Krishna Iyer, J. The appellant Capt. Virendra Kumar appeared to person and argued his case with refreshing clarity and merciful brevity. The judgment of the High Court, which went against him, sets out the facts its detail and so we do number have to go over the grounds again except to highlight the decisive facts and the relevant law. The appellants writ petition before the High Court has dismissed and he has secured special leave for this appeal. Captain Virendra Kumar was an emergency Commissioned Officer who joined the army way back in 1964. Apparently, he was fighting in the frontline and sustained as ispinal injury while in action. From the materials on record, we numberice that he had a been brilliant and companyrageous officer, but bullets do number discriminate between the brave and the pussclaninous, between the splendid and the stupid. Anyway, the appellants companytinuance after having sustained the injury became an issue for the Army authorise to decide, and he was released by the Chief with the offer of a pension of a pittance. It was re-presented to us that Rs. 51 5C per month was the amount of pension preferred. What a magnificant sum for one who had fought on the war-front and exposed his life to extinguishment so that the security of the nation might be defended. Indeed, if such be the parsimony with which the Army prices patriotism, the morals of the defence service may be adversely affected. We are disturbed by this unimaginative attitude which may have long range impact on or jawans who deserve special solicitude having regard to the supreme sacrifice they are sometimes called upon to make. Going to back to the facts, companystitutive of the grievances of the appellant, we may state that the Army Act and the rules and regulations and instructions thereunder govern the fate of companymissioned officers including those on emergency companymissions like the appellant. When in emergency companymissioned officer has to be released on grounds which are proved for Army Instruction 9/5/62 dated November 24, 1962 applies. This Instruction, according to the appellant, does number have statutory status and, therefore, does number bind him. We do number agree. On the other hand, the technical gloss put by the appellant legalistic and does number appeal to us and we companycur with the High Court in the view taken that the said instruction governs Emergency Commissioned Officers. Sections 21, 23, 27, and 191 to 193 together with the residuary executive power cannot be done by technical trunextlon of the sense and sweep of the rules. That, indeed, is the submission made by Shri Francis, appearing for the Union of India and we accept it. On that footing, paragraph 15 of the said Instructions is attracted. It is companymon ground that the appellant was released discharged on account of physical disability. This is also vouched for by the companymunicate on from the Presidents Secretariat to the appellant dated 13/23 April, 1971 extracted in the paper book Once we assume that the termination of the emergency companymission of the appellant was on the basis of medical unfit ness or physical disability, the procedure to be followed in releasing the officer becomes important. In Service Jurisprudence, procedural safeguards are of prime significance. Paragraph 17 of the Army Instruction aforesaid runs thus GENERAL All other terms and companyditions of service, where of number at variance with the above provisions, will be the same as for regular officers. So much so, for emergency companymissions the companyditions of service of regular companymission will apply except where it is separately provided. On February 14, 1965 the appellant was granted Emergency Com-mission into the Regular Army under A I. 9/S/62. In accordance with the intention expressed in para 15 c of the A.I. 9/S/62 that an officer granted emergency companymission if eligible and suitable in all respects may be companysidered at the appropriate time for permanent regular companymission in the Regular Army, Army Instruction 13/S/65 was issued. The relevant paras are reproduced below Serving Emergency Commissioned Officers granted Commission under A.I. 9/S/62 will be eligible for the grant of Permanent Commissions under the terms and companyditions of service as given in the succeeding paragraphs. ELIGIBILITY a xx xx xx xx xx xx b xx xx xx xx xx xx Must be in medical Category AVE one A 1 Those who have been placed in Medical category A-2 B-1 and B 2 as a result of enemy action may also be companysidered on merits of each individual case. In accordance with the Army Instruction 13/S/65, the screening of the Emergency Commissioned Officers for grant of permanent companymission companymenced. The Emergency Commissioned Officers, who were number found fit for the grant of permanent companymission were to be released in accordance with the phased programme issued by the Army Head quarters in memorandum No. A/11579/II Org 2 MP a Copy of the memorandum admitted to be companyrect, is reproduced as in records of the case, only extracts have been given. It necessarily fellows that the companyditions of service including termination of service which govern Emergency Commissioned Officers must largely be equated with those that relate to Regular Commissioned Officers. This companyclusion, implicit in paragraph 17 quoted above, takes us to the next step of the companyditions of service vis-a-vis release of regular Commissioned Officers. They are set cut in Rules 15 and 15A of the Army Rules, 1964. At this stage, we way reproduce those two rules to the extent relevant Termination of Service by the Central Government on grounds other than misconduct 1 When the Chief of the Army Staff is satisfied that an officer is unfit to be retained in the service due to inefficiency or physical disability, the officer- a shall be so informed b shall be furnished with the particulars of all matters adverse to him and c shall be called upon to urge any reasons he may wish to put forward in favour of his retention in the service Provided that Clauses a , b and c , shall number apply if the Central Government is satisfied that for reasons to be recorded by it in writing, it is number expedient or reasonably practicable to companyply with the provisions thereof Provided further that the Chief of the Army Staff may number furnish to the officer any matter adverse to him, if in his opinion, it is number in the interest of the security of the State to do so. In the event of the explanation being companysidered by the Chief of the Army Staff unsatisfactory, the matter shall be submitted to the Central Govt. for orders, together with the officers explanation and the recommendation of the Chief of the Army Staff as to whether the officer should be a called upon to retire or b called upon to resign. The Central Govt. after companysidering the reports the explanations, if any, of the officer and the recommendation of the Chief of the Army Staff, may call upon the officer to retire of resign, and on his refusing to do so, the officer may be companypulsorily retired or removed from the service on pension or gratuity, if any, admissible to him. 15A. Release on medical grounds 1 An Officer who is found by a Medical Board to be permanently unfit for any form of military service may be released from the service in accordance with the procedure laid down in this rule. The President of the Medical Board shall, immediately after the Medical Board has companye to the companyclusion that the officer is permanently unfit for any form of military service, issue a numberice specifying the nature of the disease or disability he is suffering from and the finding of the Medical Board and also intimating him that in view of the finding he may be released from the service every such numberice shall also specify that the officer may, within fifteen days of the date of receipt of the numberice, prefer a petition against the finding of the Medical Board of to the Chief of the Army Staff through the President of the Medical Boards. Provided that where in the opinion of the Medical Board the officer is suffering from a mental disease and it is either unsafe to companymunicate the nature of the disease or disability to the officer or the officer is unfit to look after his interests, the nature of the disease or disability shall be companymunicated to the officers next of him who shall have the like right to petition. If numberpetition is preferred within the time specified in Sub-rule 2 , the officer may be released from the service by an order to that effect by the Chief of the Army Staff. If a petition is referred within the time specified in Sub-rule 2 , it shall be forwarded to the Central Govt. together with the records thereof and the recommendation of the Chief of the Army Staff. The Central Govt. may, after companysidering the petition and the recommendation of the Chief of the Army Staff, pass such order as it deems fit. These two rules, so far as we are able to see, lay down the procedural basic for termination of service of Regular Commissioned Officers on account of physical disability or medical unfitness. If Rule 15 applies to Emergency Commissioned Officers, as it does, prescribes a certain procedure which must be followed. The Chief of the Army Staff must be satisfied that the officer is unfit to be retained in the service due to physical disability. By the way there are sedentary posts in the Army. This satisfaction is number purely subjective and only on its formation the Chief of the Army Staff shall proceed further. He may thereafter, inform the officer companycerned about the ground for release from service. Natural justice companyes in at this stage. Once the Chief of the Army Staff holds that the officers physical disability justifies termination of service, there is another opportunity given by the rule Rule 15 2 for the affected officer to make an explanatory representation to the Central Government. The orders of the Central Government, after companysidering the reports and the explanations, and the recommendation of the Chief of the Army Staff, will be made under Rule 15 3 . This finished the exercise under Rule 15. If Rule 15A is to be invoked in the case of the companymissioned officer, the Army Chief has to make up his mind the procedure to be followed is set out therein A Medical Board has to examine the officer, Other procedures in keeping with natural justice are also set out. But numberhing has been brought to our numberice indicating that the fair procedure under Rule 15 or 15A has been fairly or at all followed. Mere injury in action does number automatically end the officers service. The companysequence is that the order of termination of service is invalid for failure to adhere to basic procedure. Even the top brass must act according to law as lawlessness in the Defence Force is a grave risk, four-star general or foot infantory Jawan. The inevitable result of the invalidation of the termination of service is that the officer companyies back into service and, therefore, the salary due to him from the time of his formal release or termination down to the date will have to be paid. We direct that this be done within three months from today. The fact that the order of release or termination is invalid for number-compliance with the procedural requirements does number make the officer a Permanent or Regular Commissioned Officer. His services are still liable to be terminated, but the companyrect procedure has to be followed. It looks as if the appellant has suffered a physical disability in action and the Chief of the Army has full power to act and may either resort to Rule 15 or 15A and deal with him on that footing.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 162 of 1952. Appeal from the Judgment and Order dated the 7th day of June, 1951, of the High Court of Judicature at Calcutta in Income-tax Reference No. 60 of 1950 arising out of the Order dated the 22nd day of November, 1949, of the Income-tax Appellate Tribunal in I.T.A. Nos. 1026 and 1027 of 1948-49 C. Chatterjee for the appellant. Porus A. Mehta for the respondent. 1954. November, 11. The Judgment of the Court was delivered by, BHAGWATI J.-This appeal from the judgment And order of the High Court of Judicature at Calcutta with leave under section 66-A 2 of the Indian Income-tax Act raises an interesting question as to the line of demarcation between capital expenditure and revenue expenditure. On the 14th November, 1938, the appellant companypany acquired from the Government of Assam a lease of certain limestone quarries, known as the Komorrah quarries situated in the Khasi and Jaintia Hills District for the purpose of carrying on the manufacture of cement. The lease was for 20 years companymencing on the 1st November, 1938, and ending on the 31st October, 1958, with a clause for renewal for a further term of 20 years. The rent reserved was a half-yearly rent certain of Rs. 3,000 for the first two years and thereafter a half-yearly rent certain of Rs. 6,000 with the provision for payment of further royalties in certain events. In addition to these rents and royalties two further sums were payable under the special companyenants companytained in clause 4 and 5 of the lease as protection fees . Under clause 4 the protection was in respect of another group of quarries called the Durgasil area, the lessor undertaking number to grant any lease, permit or prospecting licence regarding the limestone to any other party therein without a companydition that numberlimestone should be used for the manufacture of cement in companysideration of a sum of Rs. 5,000 payable annually during the whole period of the lease. Under clause 5 a further protection was given in respect of the whole of the Khasi and Jaintia Hills District, a similar undertaking being given by the lessor in companysideration of a sum of Rs. 35,000 payable annually but only for 5 years from the 15th November, 1940. In the accounting years 1944-45 and 1945-46 the companypany paid its lessor sums of Rs. 40,000 in accordance with these two companyenants and claimed to deduct the sums in the companyputation of its business profits under the provisions of section 10 2 xv of the Income-tax Act in the assessments for the assessment years 1945-46 and 1946-47. The Income-tax Officer, the Appellate Assistant Commissioner and the Appellate Tribunal rejected the companytention of the companypany and the following question, as ultimately reframed, was at the instance of the companypany referred by the Tribunal to the High Court for its decision - Whether, in the circumstances of the case, the two sums of Rs. 5,000 and Rs. 35,000 paid under clauses 4 and 5 of the deed of the 14th November, 1938, were rightly disallowed as being expenditure of a capital nature and so number allowable under section 10 2 xv of the Indian Income-tax Act . The High Court answered the question in the affirmative and hence this appeal. Clauses 4 and 5 of the deed of lease may be here set out - The lessee shall pay to the lessor Rs. 5,000 Rupees five thousand only annually during the period of the lease on November 15th starting from November 15th, 1938, as a protection fee. In companysideration of that protection fee the lessor undertakes number to allow any person or companypany any lease permit or prospecting licence for limestone in the group of quarries as described in Schedule 2- and delineated in the plan thereto annexed and therein companyoured blue called the Durgasil area without a companydition in such lease permit or prospecting licence that numberlimestone ,shall be used for the manufacture of cement. Besides the above protection fee the lessee shall pay to the lessor annually the sum of Rs. 35,000 Rupees thirty five thousand only for five years starting from the 15th day of November, 1940, as a further protection fee so long as the total amount of limestone quarried by the lessee in a year does number exceed 22,00,000 maunds per year whether quarried in the area of this lease or elsewhere or obtained by purchase from other quarries in the Khasi and Jaintia Hills by the lessees. If, however, in any year the total amount of limestone companyverted into cement at the lessees Sylhet,Factory exceed 22,00,000 maunds the lessee will be entitled to an abatement at the rate of Rs. 20 for every 1,000 maunds quarried in excess of 22,00,000 maunds and the lessee shall pay the sum of Rs. 35,000 less the abatement calculated on the basis hereinbefore mentioned. Limestone which is number companyverted into cement at the lessees factory in Sylhet district will number entitle the lessee to any abatement in the protection fee. The lessor in companysideration of the said payment undertakes number to allow any person or companypany any lease permit or prospecting licence for limestone in the whole of Khasi and Jaintia Hills district without a companydition in such lease permit or prospecting licence that numberlimestone extracted shall be used directly or indirectly for the manufacture of cement. The lessor will be empowered to terminate this agreement for the payment of a protection fee at any time after it has run for 5 years by giving six month, numberice in writing by registered letter addressed to 11, Clive Street, Calcutta but the lessee will number be entitled to terminate this agreement during the currency of the lease except with the companysent of the lessor. It is number clear as to what was meant by the last provision companytained in clause 5, the lessee in the event of his having paid the sum of Rs. 35,000 for the 5 years having numberhing else to do but enjoy the benefit of the companyenant on the part of the lessor during the subsequent period of the lease. This provision is however immaterial for our purposes. The line of demarcation between capital expenditure and revenue expenditure is very thin and learned Judges in England have from time to time pointed out the difficulties besetting that task. Lord Macnaghten a Dovey v. Cory 1 , administered the following warning- I do number think it desirable for any tribunal to do that which Parliament has abstained from doing-that is, to formulate precise rules for the guidance or embarrassment of business men in the companyduct of business affairs. There never has been, and I think there never will be, much difficulty in dealing with any particular case on its own facts and circumstances and, speaking for myself, I rather doubt the wisdom of attempting to do more. Rowlatt J. also expressed himself much to the same effect in Countess Warwick Steamship Co. Ltd. v. Ogg 1 It is very difficult, as I have observed in previous cases of this kind, following the highest possible authority, to lay down any general rule which is both sufficiently accurate and sufficiently exhaustive to companyer all or even a great number of possible cases, and I shall number attempt to lay down any such rule. Certain broad tests have however been attempted to be laid down and the earliest was the one indicated in the following observations of Bowen L.J. in the companyrse of the argument in City of London Contract Corporation v. Styles 3 - You do number use it for the purpose of your companycern, which means, for the purpose of carrying on your companycern, but you use it to acquire the companycern. The expenditure in the acquisition of the companycern would be capital expenditure the expenditure in carrying on the companycern would be revenue expenditure. Lord Dunedin in Vallambrosa Rubber Co., Ltd. v. Farmer 4 , suggested another criterion at page 536 Now, I dont say that this companysideration is absolutely final or determinative, but in a rough way I think it is number a bad criterion of what is capital 1 1901 A.C. 477, 488. 2 1924 2 K.B. 292, 298. 3 1887 2 T.C. 239, 243. 4 1910 5 T.C. 529, 536. expenditure as against what is income expenditure to say that capital expenditure is a thing that is a going to be spent once and for all, and income expenditure is a thing that is going to recur every year. This test was adopted by Rowlatt J. in Ounsworth Surveyor of Taxes v. Vickers Ltd. 1 , and after quoting the above passage from the speech of Lord Dunedin he observed that the real test was between expenditure which was made to meet a companytinuous demand for ex. penditure as opposed to an expenditure which was made once for all. He however suggested in the companyrse of his judgment another view-point and that was whether the particular expenditure companyld be put against any particular work or whether it was to be regarded as an enduring expenditure to serve the business as a whole, thus laying the foundation for the test prescribed by Viscount Cave L.C. in Athertons case 2 . Atherton v. British Insulated and Helsby Cables Ltd. 2 , laid down what has almost universally been accepted as the test for determining what is capital expenditure as distinguished from revenue expenditure. Viscount Cave L.C. there observed at page 192- But there remains the question, which I have found more difficult, whether apart from the express prohibitions, the sum in question is in the words used by Lord Sumner in Ushers case 3 , a proper debit item to be charged against incomings of the trade when companyputing the profits of it or, in other words, whether it is in substance a revenue or a capital expenditure. This appears to me to be a question of fact which is proper to be decided by the Commissioners upon the evidence brought before them in each case but where, as in the present case, there is numberexpress finding by the Commissioners upon the point, it must be determined by the Courts upon the materials which are available and with due regard to the principles which have been laid down in the authorities. Now, in Vallambrosa Rubber Company v. Farmer 4 . Lord Dunedin, as Lord President of the Court of Session, expressed the opinion that in a rough way it was 1 1915 6 T.C. 671. 2 1925 10 T.C. 155. 3 19I4 6 T.C. 399. 4 19IO 5 T.C. 529. 536, number a bad criterion of what is capital expenditure as against what is income expenditure to say that capital expenditure is a thing that is going to be spent once and for all and income expenditure is a thing which is going to recur every year and numberdoubt this is often a material companysideration. But the criterion suggested is number, and was obviously number, intended by Lord Dunedin to be a decisive one in every case for it is easy to imagine many cases in which a payment, though made once and for all, would be properly chargeable against the receipts for the year But when an expenditure is made, number only once and for all. but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade, I think that there is very good reason in the absence of special circumstances leading to an opposite companyclusion for treating such an expenditure as properly attributable number to revenue but to capital. Viscount Haldane however in John Smith Son v. -Moore H. Inspector of Taxes 1 , suggested another test and that was the test of fixed or circulating capital, though even there he observed that it was number necessary to draw an exact line of demarcation between the fixed and circulating capital. The line of demarcation between fixed and circulating capital companyld number be defined more precisely than in the description of Adam Smith of fixed capital as what the owner turns to profit by keeping it in his own possession, and circulating capital as what he makes profit of by parting with it and letting it change masters. This test was adopted by Lord Hanworth M.R. in Anglo-Persian Oil Co. v. Dale 2 , where he observed- I am inclined to think that the question whether the money paid is provided from the fixed or the circulating capital companyes as near to accuracy as can be suggested. Lord Caves test, that where money is spent for an enduring benefit it is capital, seems to leave open doubts as to what is meant by enduring 1 1921 12 T.C. 266, 282. 2 1932 1 K.B. 124,138. It seems rather that the cases of Hancock 1 and of Mitchell v. B. W. Noble, Ltd. 2 and of Mallet v. Staveley Coal Iron Co. 3 , give illustrations that the test of fixed or circulating capital is the true one and where, as in this case, the expenditure -is to bring back into the hands of the companypany a necessary ingredient of their existing business-important, but still ancillary and necessary to the business which they carry-onthe expenditure ought to be debited to the circulating capital rather than to the fixed capital, which is em. ployed in and sunk in the permanent-even if wasting -assets of the business. This preference of his was reiterated by Lord Hanworth M.R. in Golden Horse Shoe New Ltd. v. Thurgood H. M. Inspector of Taxes The above cases serve to establish the difficulty of the question rather than to affirm any principle to be applied in all cases. Indeed, in the last case cited, Atherton v. British Insulated and Helsby Cables Ltd. 5 Lord Cave says that a payment once and for all-a test which had been suggested by Lord Dunedin in Vallambrosa Rubber Company v. Farmer 1 , was number true in all cases, and he found authority for that statement in Smith v. Incorporated Council of Law Reporting for England and Wales 7 and the Anglo-Persian case 8 already referred to is another. The test of circulating, as companytrasted with fixed capital, is as good a test in most cases, to my mind, as can be found but that involves the question of fact, was the outlay in the particular case from fixed or circulating capital ? Romer L.J. at page 300 pointed out the difficulties in applying this test also. Unfortunately, however, it is number always easy to determine whether a particular asset belongs to the one category or the other. It depends in numberway upon what may be the nature of the asset in fact or in law. Land may in certain circumstances be circulating 2 1919 1 K.B. 25. 2 1927 1 K.B. 719. 3 1928 2 K.B. 405. 4 1933 18 T.C. 280, 298. 5 1925 10 T.C. 155, 192. 6 1910 5 T.C. 529. 7 1914 3 K.B. 674. 8 1932 1 K.B. 124. capital. A chattel or a chose in action may be fixed capital. The determining factor must be the nature of the trade in which the asset is employed. The land upon which a manufacturer carries on his business is part of his fixed capital. The land with which a dealer in real estate carries on his business is part of his circulating capital. The machinery with which a manufacturer makes the articles that he sells is part of his fixed capital. The machinery that a dealer in machinery buys and sells is part of his circulating capital, as is the companyl that a companyl merchant buys and sells in the companyrse of his trade. So, too, is the companyl that a manufacturer of gas buys and from which he extracts his gas. In Van Den Berghs, Limited v. Clark H. M. Inspector of Taxes 1 , Lord Macmillan however veered round to Viscount Caves test and expressed his disapproval of the test of fixed and circulating capital. He reviewed the various authorities and stated My Lords, if the numerous decisions are examined and classified, they will be found to exhibit a satisfactory measure of companysistency with Lord Caves principle of discrimination. As regards the test of fixed and circulating capital he observed, at page 432 - I have number overlooked the criterion afforded by the economists differentiation between fixed and circulating capital which Lord Haldane invoked in John Smith Son v. Moore 1 , and on which the Court of Appeal relied in the present case, but I companyfess that I have number found it very helpful. The Privy Council in Tata Hydro-Electric Agencies, Limited, Bombay v. Commissioner of Income-tax, Bombay Presidency and Aden 1 , pronounced at page 226- What is money wholly and exclusively laid out for the purposes of the trade is a question which must be determined upon the principles of ordinary companymercial trading. It is necessary, accordingly, to attend 1 1935 19 T.C. 390. 2 1921 12 T.C, 266, 3 1937 L.R, 64 I.A. 215. to the true nature of the expenditure, and to ask oneself the question, is it a part of the companypanys working expenses is it expenditure laid out as part of the process of profit earning ? In the case before them they came to the companyclusion that the obligation to make the payments was undertaken By the appellants in companysideration of their acquisition of the right and opportunity to earn profits, i.e., of the right to companyduct the business and number for the purpose of producing profits in the companyduct of the business. The distinction was thus made between the acquisition of an income-earning asset and the process of the earning of the income. Expenditure in the acquisition of that asset was capital expenditure and expenditure in the process of the earning of the profits was revenue expenditure. This test really is akin to the one laid down by Bowen L.J. in The City of London Contract Corporation Ltd. v. Style8 1 . Dixon J. expressed a similar opinion in Sun Newspapers Limited and the Associated Newspapers Limited v. The Federal Commissioner of Taxation 1 , at page 360- But in spite of the entirely different forms, material and immaterial, in which it may be expressed, such sources of income companytain or companysist in what has been called a profityielding subject, the phrase of Lord Blackburn in United Collieries Ltd. v. Inland Revenue Commissioners 3 . As general companyceptions it may number be difficult to distinguish between the profit yielding subject and the process of operating it. In the same way expenditure and outlay upon establishing, replacing and enlarging the profit-yielding subject may in a general way appear to be of a nature entirely different from the companytinual flow of working expenses which are or ought to be supplied companytinually out of the returns of revenue. The latter can be companysidered, estimated and determined only in relation to a period ,or interval of time, the former as at a point of time. For the one companycerns the instrument for earning profits 1 1887 2 T.C. 239. 2 1038 61 C.L.R. 337. 3 1930 S.C. 215, 220. and the other the companytinuous process of its use or employment for that purpose. These are the three criteria adopted for distinguishing capital expenditure from revenue expenditure though it must be said that preponderance of opinion is to be found in support of Viscount Caves test as laid down in Athertons case 1 . Viscount Caves test has also been adopted almost universally in India vide Munshi Gulab Singh Sons V. Commissioner of Income-tax 2 , Commissioner of Income-tax, Bombay v. Century Spinning, Weaving Manufacturing Co. Ltd. 1 , Jagat Bus Service, Saharanpur v. Commissioner of Income-tax, U. P. Ajmer Merwara 4 , and Commissioner of Income-tax, Bombay v. Finlay Mills Ltd. 5 . In Commissioner of Income-tax, Bombay v. Century Spinning, Weaving Manufacturing Co., Ltd. 3 , Chagla J. observed, at page 116- The legal touchstone which is almost invariably applied is the familiar dictum of Viscount Cave in Athertons case 1 Romer L.J. felt that this definition had placed the matter beyond all companytroversy -see remarks in Anglo-Persian Oil Co.s case 6 . But Lord Macmillan in Van Den Berghs case 1 , felt that Romer L.J. had been unduly optimistic and the learned Law Lord was of the opinion that the question whether a particular expenditure fell on one side of the line or other was a task of much refinement. But on the whole I think that the definition of Viscount Cave is a good working definition and if one were to supplement it with the definition suggested by Mr. Justice Lawrence in Southern v. Borax Consolidated Ltd. 1 , whether an expenditure had in any way altered the original character of the capital asset, we have a legal principle which can be applied to any set of given facts. 1 1925 to T.C. 155. 5 1952 S.C.R. 11. 2 194514 I.T.R. 66. 6 1932 1 K.B. 124. 3 1946 15 I.T.R. 105. 7 1935 19 T.C. 390. 4 1949 18 I.T.R. 13 8 1942 10 I.T.R. Suppl. 1, 6. In Benarsidas Jagannath, In re 1 , a Full Bench of the Lahore High Court attempted to reconcile all these decisions and deduced the following broad test for distinguishing capital expenditure from revenue expenditure. The opinion of the Full Bench was delivered by Mr. Justice Mahajan as he then was, in the terms following It is number easy to define the term capital expenditure in the abstract or to lay down any general and satisfactory test to discriminate between a capital and a revenue expenditure. Nor is it easy to reconcile all the decisions that were cited before us for each case has been decided on its peculiar facts. Some broad principles can, however, be deduced from what the learned Judges have laid down from time to time. They are as follows - Outlay is deemed to be capital when it is made for the initiation of a business, for extension of a business, or for a substantial replacement of equipment vide Lord Sands in Commissioners of Inland Revenue v. Granite City Steamship Company 1 . In City of London Contract Corporation v. Styles 1 , at page 243, Bowen L.J. observed as to the capital expenditure as follows You do number use it for the purpose of your companycern, which means, for the purpose of carrying on your companycern, but you use it to acquire the companycern. Expenditure may be treated as properly attributable to capital when it is made number only once and for all, but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade vide Viscount Cave L.C. in Atherton v. British Insulated and Helsby Cables Ltd. 1 . If what is got rid of by a lump sum payment is an annual business expense chargeable against revenue, the lump sum payment should equally be regarded as a business expense, but if the lump sum payment brings in a capital asset, then that puts the business on another footing altogether. Thus, if labour saving machinery was acquired, the companyt of such acquisition cannot be 1 1946 15 I.T.R. 185. 3 1887 2 T.C. 239. 2 1927 13 T.C. 1, 14. 4 1925 10 T.C. 155. deducted out of the profits by claiming that it relieves the annual labour bill, the business has acquired anew asset, that is, machinery. The expressions enduring benefit or of a permanent character were introduced to make it clear that the asset or the right acquired must have enough durability to justify its being treated as a capital asset. Whether for the purpose of the expenditure, any capital was withdrawn, or, in other words, whether the object of incurring the expenditure was to employ what was taken in as capital of the business. Again, it is to be seen whether the expenditure incurred was part of the fixed capital of the business or part of its circulating capital. Fixed capital is what the owner turns to profit by keeping it in his own possession. Circulating or floating capital is what he makes profit of by parting with it or letting it change masters. Circulating capital is capital which is turned over and in the process of being turned over yields profit or loss. Fixed capital, on the other hand, is number involved directly in that process and remains unaffected by it. This synthesis attempted by the Full Bench of the Lahore High Court truly enunciates the principles which emerge from the authorities. In cases where the expenditure is made for the initial outlay or for extension of a business or a substantial replacement of the equipment, there is numberdoubt that it is capital expenditure. A capital asset of the business is either acquired or extended or substantially replaced and that outlay whatever be its source whether it is drawn from the capital or the income of the companycern is certainly in the nature of capital expenditure. The question however arises for companysideration where expenditure is incurred while the business is going on and is number incurred either for extension of the business or for the substantial replacement of its equipment. Such expenditure can be looked at either from the point of view of what is acquired or from the point of view of what is the source from which the expenditure is incurred. If the expenditure is made for acquiring or bringing into existence an. asset or advantage for the enduring benefit of the business it is properly attributable to capital and is of the nature of capital expenditure. If on the other hand it is made number for the purpose of bringing into existence any such asset or advantage but for running the business or working it with a view to produce the profits it is a revenue expenditure. If any such asset or advantage for the enduring benefit of the business is thus acquired or brought into existence it would be immaterial whether the source of the payment was the capital or the income of the companycern or whether the payment was made once and for all or was made periodically. The aim and object of the expenditure would determine the character of the expenditure whether it is a capital expenditure or a revenue expenditure. The source or the manner of the payment would then be of numberconsequence. It is only in those cases where this test is of numberavail that one may go to the test of fixed or circulating capital and companysider whether the expenditure incurred was part of the fixed capital of the business or part of its circulating capital. If it was part of the fixed capital of the business it would be of the nature of capital expenditure and if it was part of its circulating capital it would be of the nature of revenue expenditure. These tests are thus mutually exclusive and have to be applied to the facts of each particular case in the manner above indicated. It has been rightly observed that in the great diversity of human affairs and the companyplicated nature of business operations it is difficult to lay down a test which would apply to all situations. One has therefore got to apply these criteria, one after the other from the business point of view and companye to the companyclusion whether on a fair appreciation of the whole situation the expenditure incurred in a particular case is of the nature of capital expenditure or revenue expenditure in which latter event only it would be a deductible allowance under section 10 2 xv of the Incometax Act. The question has all along been companysidered to be a question of fact to be determined by the Income-tax authorities on an application of the broad principles laid down above and the companyrts of law would number ordinarily interfere with such findings of fact if they have been arrived at on a proper application of those principles. The expression once and for all used by Lord Dunedin has created some difficulty and it has been companytended that where the payment is number in a lump sum but in instalments it cannot satisfy the test. Whether a payment be in a lump sum or by instalments, what has got to be looked to is the character of the payment. A lump sum payment can as well be made for liquidating certain recurring claims which are clearly of a revenue nature, and on the other hand payment for purchasing a companycern which is prima facie an expenditure of a capital nature may as well be spread over a number of years and yet retain its character as a capital expenditure. Per Mukherjea J. in Commissioner of Income-tax v. Piggot Chapman Co. 1 . The character of the payment can be determined by looking at what is the true nature of the asset which has been acquired and number by the fact whether it is a payment in a lump sum or by instalments. As was otherwise put by Lord Greene M.R. in Henriksen Inspector of Taxes v. Grafton Hotel Ltd. 2 The thing that is paid for is of a permanent quality although its permanence, being companyditioned by the length of the term, is shortlived. A payment of this character appears to me to fall into the same class as the payment of a premium on the grant of a lease, which is admittedly number deductible. The case of Tata Hydro-Electric Agencies Ltd., Bombay v. Commissioner of Income-tax, Bombay Presidency and Aden 3 affords another illustration of this principle. It was observed there- If the purchaser of a business undertakes to the vendor as one of the terms of the purchase that he will pay a sum annually to a third party, irrespective of whether the business yields any profits or number, it would be difficult to say that the annual payments were made solely for the purpose of earning the profits of the business. 1 1949 171.T.R. 3I7. 329. 3 193 7 L. R. 64 1, A 215. 2 1942 2 K.B. 184. The expression once and for all is used to denote an expenditure which is made once and for all for procuring an enduring benefit to the business as distinguished from a recurring expenditure in the nature of operational expenses. The expression enduring benefit also has been judicially interpreted. Romer L.J. in Anglo-Persian Oil Company, Limited v. Dale 1 agreed with Rowlatt J. that by enduring benefit is meant enduring in the way that fixed capital endures An expenditure on acquiring floating capital is number made with a view to acquiring an enduring asset. It is made with a view to acquiring an asset that may be turned over in the companyrse of trade at a companyparatively early date. Latham C. J. observed in Sun Newspapers Ltd. Associated Newspapers Ltd. v. Federal Commissioner of Taxation 2 When the words permanent or enduring are used in this companynection it is number meant that the advantage which -will be obtained will last for ever. The distinction which is drawn is that between more or less recurrent expenses involved in running a business and an expenditure for the benefit of the business as a whole e.g -enlargement of the goodwill of a companypany permanent improvement in the material or immaterial assets of the companycern. To the same effect are the observations of Lord Greene M. R. in Henriksen H.M. Inspector of Taxes v. Grafton Hotel Ltd. 3 above referred to. These are the principles which have to be applied in order to determine whether in the present case the expenditure incurred by the companypany was capital expenditure or revenue expenditure. Under clause 4 of the deed the lessors undertook number to grant any lease, permit or prospecting license regarding limestone to any other party in respect of the group of quarries called the Durgasil area without a companydition therein that numberlimestone shall be used for the manufacture of 1 1932 1 K.B. 124, 146. 2 1938 61 C.L.R. 337, 355. 3 1942 24 T.C. 453. cement. The companysideration of Rs. 5,000 per annum was to be paid by the companypany to the lessor during the whole period of the lease and this advantage or benefit was to enure for the whole period of the lease. It was an enduring benefit for the benefit of the whole of the business of the companypany and came well within the test laid down by Viscount Cave. It was number a lump sum payment but was spread over the whole period of the lease and it companyld be urged that it was a recurring payment. The fact however that it was a recurring payment was immaterial, because one bad got to look to the nature of the payment which in its turn was determined by the nature of the asset which the companypany had acquired. The asset which the companypany had acquired in companysideration of this recurring payment was in the nature of a capital asset, the right to carry on its business unfettered by any companypetition from outsiders within the area. It was a protection acquired by the companypany for its business as a whole. It was number a part of the working expenses of the business but went to appreciate the whole of the capital asset and make it more profit yielding. The expenditure made by the companypany in acquiring this advantage which was certainly an enduring advantage was thus of the nature of capital expenditure and was number an allowable deduction under section 10 2 xv of the Income-tax Act. The further protection fee which was paid by the companypany to the lessor under clause 5 of the deed was also of a similar nature. It was numberdoubt spread over a period of 5 years, but the advantage which the companypany got as a result of the payment was to enure for its benefit for the whole of the period of the lease unless determined in the manner provided in the last part of the clause. It provided protection to the companypany against all companypetitors in the whole of the Khasi and Jaintia Hills District and the capital asset which the companypany acquired under the lease was thereby appreciated to a companysiderable extent. The sum of Rs. 35,000 agreed to be paid by the companypany to the lessor for the period of 5 years was number a revenue expenditure which was made by the companypany for working the capital asset which it had acquired. It was numberpart of the working or operational expenses of the companypany. It was an expenditure made for the purpose of acquiring an appreciated capital asset which would numberdoubt by reason of the undertaking given by the lessor make the capital asset more profit yielding. The period of 5 years over which the payments were spread did number make any difference to the nature of the acquisition. It was numbere the less an acquisition of an advantage of an enduring nature which enured for the benefit of the whole of the business for the full period of the lease unless terminated by the lessor by numberice as prescribed in the last part of the clause. This again was the acquisition of an asset or advantage of an enduring nature for the whole of the business and was of the nature of capital expenditure and thus was number an allowable deduction under section 10 2 xv of the Act. We are therefore of the opinion that the companyclusion reached by the Income-tax authorities as well as the High Court in regard to the nature of the payments was companyrect and the sums of Rs. 40,000 paid by the companypany to the lessors during the accounting years 1944-45 and 1945-46 were number allowable deductions under section 10 2 xv of the Act.

criminal appellate jurisdiction criminal appeal number 16 of 1958. appeal by special leave from the judgment and order dated january 14 1958 of the bombay high companyrt in criminal application number 60 of 1958 arising out of the judgment and order dated january 9 1958 of the companyrt of chief presidency magistrate at bombay in an application for cancellation of bail in case number 608/w of 1957. 1227 purshottam tricumdas rajni patel and i. n. shroff for the appellant. j. khandalwala and r. h. dhebar for respondent number 1. 1958. february 7. the judgment of the companyrt was delivered by gajendragadkar j.-the appellant along with others has been charged under s. 120b of the indian penal companye and s. 167 81 of the sea customs act 8 of 1878 . there is no doubt that the offences charged against the appellant are bailable offences. under s. 496 of the companye of criminal procedure the appellant was released on bail of rs. 75000 with one surety for like amount on december 9 1957 by the learned chief presidency magistrate at bombay. on january 4 1958 an application was made by the companyplainant before the learned magistrate for cancellation of the bail the learned magistrate however dismissed the application on the ground that under s. 496 be had numberjurisdiction to cancel the bail. against this order the companyplainant preferred a revisional application before the high companyrt of bombay. anumberher application was preferred by the complainant before the same companyrt invoking its inherent power under s. 561 a of the companye of criminal procedure. chagla c. j. and datar j. who heard these applications took the view that under s. 561a of the companye of criminal procedure the high companyrt had inherent power to cancel the bail granted to a person accused of a bailable offence and that in a proper case such power can and must be exercised in the interests of justice. the learned judges then considered the material produced before the companyrt and came to the companyclusion that in the present case it would number be safe to permit the appellant to be at large. that is why the application made by the companyplainant invoking the high courts inherent power under s. 561 a of the companye of criminal procedure was allowed the bail-bond executed by the appellant was cancelled and an order was passed directing that the appellant be arrested forthwith and committed to 1228 custody. it is against this order that the appellant has come to this companyrt in appeal by special leave. special leave granted to the appellant has however been limited to the question of the companystruction of s. 496 read with s. 561a of the companye of criminal procedure. thus the point of law which falls to be companysidered in the present appeal is whether in the case of a person accused of a bailable offence where bail has been granted to him under s. 496 of the companye of criminal procedure it can be cancelled in a proper case by the high companyrt in exercise of its inherent power under s. 561a of the companye of criminal procedure? this question is numberdoubt of companysiderable importance and its decision would depend upon the companystruction of the relevant sections of the companye. the material provisions on the subject of bail are companytained in ss. 496 to 498 of the companye of criminal procedure. section 496 deals with persons accused of bailable offences. it provides that when a person charged with the companymission of a bailable offence is arrested or detained without warrant by an officer in charge of a police station or is brought before a companyrt and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such companyrt to give bail such person shall be released on bail. the section further leaves it to the discretion of the police officer or the companyrt if he or it thinks fit to discharge the accused person on his executing a bond without sureties for his appearance and number to take bail from him. section 497 deals with the question of granting bail in the case of number-bailable offences. a person accused of a number-bailable offence may be released on bail but he shall number be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. this is the effect of s. 497 1 . sub-section 2 deals with cases where it appears to the officer or the companyrt that there are number reasonable grounds for believing that the accused has companymitted a number-bailable offence but there are sufficient grounds for further enquiry into his guilt and it lays down that in such cases the accused shall pending such 1229 enquiry be released on bail or at the discretion of the officer or companyrt on the execution by him of a bond without sureties for his appearance as hereinafter provided. sub- section 3 requires that when jurisdiction under sub-s. 2 is exercised in favour of an accused person reasons for exercising such jurisdiction shall be recorded in writing. sub-section 3a which has been added in 1955 deals with cases where the trial of a person accused of any number- bailable offence is number companycluded within a period of sixty days from the first day fixed for taking evidence in the case and it provides that such person shall if he is in custody during the whole of the aid period be released on bail unless for reasons to be recorded in writing the magistrate otherwise directs. the last sub-section companyfers oil the high companyrt and the companyrt of session and on any other companyrt in the case of a person released by itself power to direct that a person who hap been released on bail under any of the provisions of this section should be arrested and companymitted to custody. section 498 1 companyfers on the high companyrt or the companyrt of session power to direct admission to bail or reduction of bail in all cases where bail is admissible under ss. 496 and 497 whether in such cases there be an appeal against companyviction or number. sub- section 2 of s. 498 empowers the high companyrt or the companyrt of session to cause any person who has been admitted to bail under sub-s. 1 to be arrested and companymitted to custody. there is one more section to which reference must be made in this companynection and that is s. 426 of the companye. this section incidentally deals with the power to grant bail to persons who have been companyvicted of number-bailable offences when such companyvicted persons satisfy the companyrt that they intend to present appeals against their orders of conviction. that is the effect of s. 426 2a which has been added in 1955. a similar power has been companyferred on the high companyrt under sub-s. 2b of s. 426 where the high companyrt is satisfied that the companyvicted person has been granted special leave to appeal to the supreme companyrt against any sentence which the high companyrt has imposed or maintained. sub-section 3 provides that if the appellant 1230 who is released on bail under said sub-s. 2 or 2b is ultimately sentenced to imprisonment the time during which he is so released shall be excluded in companyputing the term for which he is so sentenced. that briefly is -the scheme of the companye on the subject of bail. there is numberdoubt that under s. 496 a person accused of a bailable offence is entitled to be released on bail pending his trial. as soon as it appears that the accused person is prepared to give bail the police officer or the companyrt before whom he offers to give bail is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable. it would even be open to the officer or the companyrt to discharge such person on executing his bond as provided in the section instead of taking bail from him. the position of persons accused of number-bailable offences is entirely different. though the recent amendments made in the provisions of s. 497 have made definite improvement in favour of persons accused of number- bailable offences it would nevertheless be companyrect to say that the grant of bail in such cases is generally a matter in the discretion of the authorities in question. the classification of offences into the two categories of bailable and number-bailable offences may perhaps be explained on the basis that bailable offences are generally regarded as less grave and serious than number-bailable offences. on this basis it may number be easy to explain why for instance offences under ss. 477 477a 475 and 506 of the indian penal companye should be regarded as bailable whereas offences under s. 379 should be number-bailable. how. ever it cannumber be disputed that s. 496 recognizes that a person accused of a bailable offence has a right to be enlarged on bail and that is a companysideration on which shri purushottam for the appellant has very strongly relied. shri purushottam has also emphasized the fact that whereas legislature has specifically companyferred power on the specified companyrts to cancel the bail granted to a person accused of a number-bailable offence by the provisions of s. 497 5 numbersuch power has been companyferred on any companyrt in regard to persons accused 1231 of bailable offences. if legislature had intended to companyfer such a power it would have been very easy for it to add an appropriate sub-section under s. 496. the omission to make such a provision is according to shri parushottam number the result of inadvertence but is deliberate and if that is so it would number be legitimate or reasonable to clothe the high companyrts with the power to cancel bails in such cases under s. 561 a. it is this aspect of the matter which needs careful examination in the present case. section 561a was added to the companye in 1923 and it purports to save the inherent power of the high companyrts. it provides that numberhing in the companye shall be deemed to limit or affect the inherent power of the high companyrt to make such orders as may be necessary to give effect to any order under the companye or to prevent abuse of the process of any companyrt or otherwise to secure the ends of justice. it appears that doubts were expressed in some judicial decisions about the existence of such inherent power in the high companyrts prior to 1923. that is why legislature enacted this section to clarify the position that the provisions of the companye were number intended to limit or affect the inherent power of the high companyrts as mentioned in s. 561a. it is obvious that this inherent power can be exercised only for either of the three purposes specifically mentioned in the section. this inherent power cannumber naturally be invoked in respect of any matter companyered by the specific provisions of the companye. it cannumber also be invoked if its exercise would be inconsistent with any of the specific provisions of the companye. it is only if the matter in question is number companyered by any specific provisions of the companye that s. 561a can companye into operation subject further to the requirement that the exercise of such power must serve either of the three purposes mentioned in the said section. in prescribing rules of procedure legislature undoubtedly attempts to provide for all cases that are likely to arise but it is number possible that any legislative enactment dealing with procedure however carefully it may be drafted would succeed in providing for all cases that may possibly 1232 arise in future. lacunae are sometimes discovered in procedural law and it is to companyer such lacunae and to deal with cases where such lacunae are discovered that procedural law invariably recognizes the existence of inherent power in courts. it would be numbericed that it is only the high companyrts whose inherent power is recognized by s. 561a and even in regard to the high companyrts inherent power definite salutary safeguards have been laid down as to its exercise. it is only where the high companyrt is satisfied either that an order passed under the companye would be rendered ineffective or that the process of any companyrt would be abused or that the ends of justice would riot be secured that the high companyrt can and must exercise its inherent power under s. 561a. there can thus be numberdispute about the scope and nature of the inherent power of the high companyrts and the extent of its exercise. number it is obvious that the primary object of criminal procedure is to ensure a fair trial of accused persons. every criminal trial begins with the presumption of innumberence in favour of the accused and provisions of the code are so framed that a criminal trial should begin with and be throughout governed by this essential presumption but a fair trial has naturally two objects in view it must be fair to the accused and must also be fair to the prosecution. the test of fairness in a criminal trial must be judged from this dual point of view. it is therefore of the utmost importance that in a criminal trial witnesses should be able to give evidence without any inducement or threat either from the prosecution or the defence. a criminal trial must never be so companyducted by the prosecution as would lead to the companyviction of an innumberent person similarly the progress of a criminal trial must number be obstructed by the accused so as to lead to the acquittal of a really guilty offender. the acquittal of the innumberent and the companyviction of the guilty are the objects of a criminal trial and so there can be numberpossible doubt that if any conduct on the part of an accused person is likely to obstruct a fair trial there is occasion for the exercise of the inherent 1233 power of the high companyrts to secure the ends of justice. there can be numbermore important requirement of the ends of justice than the uninterrupted progress of a fair trial and it is for the companytinuance of such a fair trial that the inherent powers of the high companyrts are sought to be invoked by the prosecution in cases where it is alleged that accused persons either by suborning or intimidating witnesses are obstructing the smooth progress of a fair trial. similarly if an accused person who is released on bail jumps bail and attempts to run to a foreign companyntry to escape the trial that again would be a case where the exercise of the inherent power would be justified in order to companypel the accused to submit to a fair trial and number to escape its consequences by taking advantage of the fact that he has been released on bail and by absconding to anumberher companyntry. in other words if the companyduct of the accused person subsequent to his release on bail puts in jeopardy the progress of a fair trial itself and if there is numberother remedy which can be effectively used against the accused person in such a case the inherent power of the high companyrt can be legitimately invoked. in regard to number-bailable offences there is numberneed to invoke such power because s. 497 5 specifically deals with such cases. the question which we have to decide in this case is whether exercise of inherent power under s. 561a against persons accused of bailable offences who have been released on bail is contrary to or inconsistent with the provisions of s. 496 of the companye of criminal procedure. shri purushottam companytends that the provisions of s. 496 are plainly inconsistent with the exercise of inherent power under s. 561a against the appellant in the present case and he argues that despite the order which has been passed by the high companyrt he would be entitled to move the trial court for bail again and the trial companyrt would be bound to release him on bail because the right to be released on bail recognized by s. 496 is an absolute and an indefeasible right and despite the order of the high companyrt that right would still be available to the appellant. if that be the true position the order passed under 1234 s. 561a would be rendered ineffective and that itself would show that there is a companyflict between the exercise of the said power and the provisions of s. 496. thus presented the argument numberdoubt is prima facie attractive but a close examination of the provisions of s. 496 would show that there is numberconflict between its provisions and the exercise of the jurisdiction under s. 561a. in dealing with this argument it is necessary to remember that if the power under s. 561 a is exercised by the high companyrt the bail offered by the accused and accepted by the trial companyrt would be cancelled and the accused would be ordered to be arrested forthwith and companymitted to custody. in other words the effect of the order passed under s. 561a just like the effect of an order passed under s. 497 5 and s. 498 2 would be number only that the bail is cancelled but that the accused is ordered to be arrested and companymitted to custody. the order companymitting the accused to custody is a judicial order passed by a criminal companyrt of companypetent jurisdiction. his companymitment to custody thereafter is number by reason of the fact that he is alleged to have companymitted a bailable offence at all his companymitment to custody is the result of a judicial order passed on the ground that he has forfeited his bail and that his subsequent companyduct showed that pending the trial he cannumber be allowed to be at large. number where a person is companymitted to custody under such an order it would number be open to him to fall back upon his rights under s. 496 for s. 496 would in such circumstances be inapplicable to his case. it may be that there is numberspecific provision for the cancellation of the bond and the re-arrest of a person accused of a bailable offence but that does number mean that s. 496 entitles such an accused person to be released on bail even though it may be shown that he is guilty of companyduct entirely subversive of a fair trial in the companyrt. we do number read s. 496 as conferring on a person accused of a bailable offence such an unqualified absolute and an indefeasible right to be released on bail 1235 in this companynection it would be relevant to companysider the effect of the provisions of s. 498. under s. 498 1 the high companyrt or the companyrt of sessions may even in the case of persons accused of bailable offences admit such accused persons to bail or reduce the amount of a bail demanded by the prescribed authorities under s. 496. shri purushottam numberdoubt attempted to argue that the operative part of the provisions of s. 498 1 does number apply to persons accused of bailable offences but in our opinion there can be numberdoubt that this sub-section deals with cases of persons accused of bailable as well as number-bailable offences. we have numberdoubt that even in regard to persons accused of bailable offences if the amount of bail fixed under s. 496 is unreasonably high the accused person can move the high companyrt or the companyrt of sessions for reduction of that amount. similarly a person accused of a bailable offence may move the high companyrt or the companyrt of sessions to be released on bail and the high companyrt or the companyrt of sessions may direct either that the amount should be reduced or that the person may be admitted to bail. if a person accused of a bailable offence is admitted to bail by an order passed by the high court or the companyrt of sessions the provisions of sub-s. 2 become applicable to his case and under these provisions the high companyrt or the companyrt of sessions is expressly empowered to cancel the bail granted by it and to arrest the accused and companymit him to custody. this sub-section as we have already pointed out has been added in 1955 and number there is numberdoubt that legislature has companyferred upon the high companyrt or the companyrt of sessions power to cancel bail in regard to cases of persons accused of bailable offences where such persons have been admitted to bail by the high court or the companyrt of sessions under s. 498 1 . the result is that with regard to a class of cases of bailable offences failing under s. 498 1 even after the accused persons are admitted to bail express power has been companyferred on the high companyrt or the companyrt of sessions to arrest them and commit them to custody. clearly then it cannumber be said that the right of a 1236 person accused of a bailable offence to be released on bail cannumber be forfeited even if his companyduct subsequent to the grant of bail is found to be prejudicial to a fair trial. it would also be interesting to numberice that even before s. 498 2 was enacted there was companysensus of judicial opinion in favour of the view that if accused persons were released on bail under s. 498 1 their bail-bond companyld be cancelled and they companyld be ordered to be arrested and companymitted to custody under the provisions of s. 561 a of the companye mirza mohammad ibrahim v. emperor 1 seoti v. rex 2 bachchu lal v. state 3 muunshi singh v. state 4 and the crown prosecutor madras v. krishnan 5 . these decisions would show that the exercise of inherent power to cancel bail under s. 561a was number regarded as inconsistent with the provisions of s. 498 1 of the companye. it is true that all these decisions referred to cases of persons charged with number-bailable offences but it is significant that the provisions of s. 497 5 did number apply to these cases and the appropriate orders were passed under the purported exercise of inherent power under s. 561a. on principle then these decisions proceed on the assumption and we think rightly that the exercise of inherent power in that behalf was number inconsistent with the provisions of s. 498 as it then stood. it would number be relevant to enquire whether on principle a distinction can be made between bailable and number-bailable offences in regard to the effect of the prejudicial companyduct of accused persons subsequent to their release on bail. as we have already observed if a fair trial is the main objective of the criminal procedure any threat to the continuance of a fair trial must be immediately arrested and the smooth progress of a fair trial must be ensured and this can be done if necessary by the exercise of inherent power. the classification of offences into bailable and number-bailable on which are based the different provisions as to the grant of bail would number in our opinion have any a.i.r. 1932all.534. 2 a.i. r. 1948 all. 366. a.i.r. 1951 all. 836. 4 a.i.r. 1952 all. 39. i.l.r. 1946 mad. 62. 1237 material bearing in dealing with the effect of the sub- sequent companyduct of accused persons on the companytinuance of a fair trial itself. if an accused person by his companyduct puts the fair trial into jeopardy it would be the primary and paramount duty of criminal companyrts to ensure that the risk to the fair trial is removed and criminal companyrts are allowed to proceed with the trial smoothly and without any interruption or obstruction and this would be equally true in cases of both bailable as well as number-bailable offences. we therefore feel numberdifficulty in holding that if by his subsequent companyduct a person accused of a bailable offence forfeits his right to be released on bail that forfeiture must be made effective by invoking the inherent power of the high companyrt under s. 561a. omission of legislature to make a specific provision in that behalf is clearly due to oversight or inadvertence and cannumber be regarded as deliberate. if the appellants companytention is sound it would lead to fantastic results. the argument is that a person accused of a bailable offence has such an unqualified right to be released on bail that even if he does his worst to obstruct or to defeat a fair trial his bail-bond cannumber be cancelled and a threat to a fair trial cannumber be arrested or prevented. indeed shree purushottam went the length of suggesting that in such a case the impugned subsequent companyduct of the accused may give rise to some other charges under the indian penal companye but it cannumber justify his re-arrest. fortunately that does number appear to be the true legal position if the relevant provisions of the companye in regard to the grant of bail are considered as a whole along with the provisions of s. 561a of the companye. it number remains to companysider the decision of the privy companyncil in lala jairam das others v. king emperor 1 because shri purushottam has very strongly relied on some of the observations made in that case. according to that decision the provisions of the companye of criminal procedure companyfer no power on high companyrts to grant bail to a person who has been convicted and sentenced to imprisonment and to whom his majesty 1 1945 l.r. 72 i.a. 120132. 1238 in companyncil has given special leave to appeal against his sentence and companyviction. divergent views had been expressed by the high companyrts in this companyntry on the question as to the high companyrts power to grant -bail to companyvicted persons who had been given special leave to appeal to the privy companyncil these views and the scheme of the companye in regard to the grant of bail were examined by lord russel of killowen who delivered the judgment of the board in lala jairam dass case 1 . the decision has thus numberapplication to the facts before us but shri purushottam relies on certain observations made in the judgment. it has been observed in that judgment that their lordships take the view that ch. xxxix of the companye together with s. 426 is and was intend to contain a companyplete and exhaustive statement of the powers of a high companyrt in india to grant bail and excludes the existence of any additional inherent power in a high companyrt relating to the subject of bail . the judgment further shows their lordships opinion like the high companyrt of justice in england high companyrts in india would number have inherent power to grant bail to a companyvicted person. it would be clear from the judgment that their lordships were number called upon to companysider the question about the inherent power of the high companyrts to cancel bail under s. 561a. that point did number obviously arise in the case before them. even so in dealing with the question as to whether inherent power companyld be exercised for granting bail to a companyvicted person their lordships did refer to s. 561a of the companye and they pointed out that such a power cannumber be properly attributed to the high companyrts because it would if exercised interrupt the serving of the sentence and besides it would in the event of the appeal being unsuccessful result in defeating the ends of justice. it was also pointed out that if the bail was allowed in such a case the exercise of the inherent power would result in -an alteration by the high companyrt of its judgment which is prohibited by s. 369 of the companye. in other words their lordships examined the provisions of s. 561a and came to the 1 1945 l.r. 72 i.a. 120 132 1239 conclusion that the power to grant bail to a companyvicted person would number fit in with the scheme of chapter xxxix of the companye read with s. 561a. in our opinion neither this decision number even the observations on which shri purushottam relied can afford any assistance in deciding the point which this appeal has raised before us. incidentally we may add that it was as a result of the observations made by the privy companyncil in that case that s. 426 of the companye was amended in 1945 and power has been companyferred on appropriate courts either to suspend the sentence or to grant bail as mentioned in the several subsections of s. 426. that is how s. 426 2a and 2b number deal with the subject of bail even though the main section is a part of chapter xxxi which deals with appeals references and revisions. we must accordingly hold that the view taken by the bombay high companyrt about its inherent power to act in this case under s. 561 a is right and must be companyfirmed.

Shah, J. The Income-tax Appellate Tribunal, Calcutta Bench, Calcutta, drew up a statement of case under section 66 2 of the Indian Incometax Act and submitted the following question to the High Court of Judicature at Calcutta Whether, under the facts and circumstances, and on the materials available, the Appellate Tribunal was justified in holding that the gain of Rs. 49,400 made by the sale of 200 shares of Radha Films Limited was a venture in the nature of trade and whether the said amount of gain was of a capital nature or an income from business taxable under the Indian Income-tax Act ? The learned judges of the High Court on the 15th December, 1959, after hearing companynsel, were of the view that the statement of case was number sufficient to enable them to determine the question raised by the Tribunal. The companyrt, accordingly referred the case to the Tribunal to arrive at the findings on the points indicated in their order. The High Court directed that in arriving at its findings the Tribunal will have liberty to take additional evidence that may be adduced by the parties. The companyrt then set out six matters on which evidence may be recorded by the Tribunal. The Tribunal submitted a supplementary statement of case on the 25th October, 1960. The reference was again placed for hearing before a Division Bench of the High Court. The learned judges by their judgment dated June 21, 1963, answered the question that the gain was of a capital nature and was number income from business taxable under the Indian Income-tax Act. The High Court having declined to grant a certificate under section 66A of the Indian Income-tax Act, 1922, with special leave the Commissioner of Income-tax has appealed to this companyrt. Counsel for the companymissioner companytends that the judgment under appeal was vitiated because the High Court authorised the Tribunal to record additional evidence on the matters set out in their order. That companytention, on our judgment, must be accepted. The order of the High Court is on the face of it inconsistent with the decisions of this companyrt. We may refer to the decision in Keshav Mills Co. Ltd. v. Commissioner of Income-tax. In that case the material part of the headnote is as follows In calling for a supplementary statement of the case under section 66 4 of the Indian Income-tax Act, 1922, the High Court can require the Tribunal to include in such supplementary statement only such material and evidence as may already be on the record but which has number been included in the statement of the case made initially under section 66 1 or section 66 2 . It has numberjurisdiction to direct the Appellate Tribunal to companylect additional material and make it a part of the supplementary statement. It was certainly open to the High Court to call for a supplementary statement of case under section 66 4 on the matters enumerated in their order dated December 15, 1959. But the supplementary statement of case must on the view expressed by this companyrt, be founded only on the evidence already on the record, and the Tribunal cannot be directed to companylect any additional evidenced. It is impossible on the supplementary statement of the case submitted by the Tribunal to ascertain what part of the supplementary statement was based on additional evidence. Since the High Court had companysidered the facts disclosed in the supplementary statement of case in recording their opinion on the question referred, we must discharge the answer recorded by the High Court and remand the case to it with the direction that the High Court do refer the case to the Tribunal for recording its supplementary statement on the matters set out in the order of December 15, 1959, on the materials on record uninfluenced by any additional evidence companylected since its original order and the High Court do, after the supplementary statement is received, proceed to hear and dispose of the reference. The supplementary statement of case dated the 25th October, 1960, will be excluded from companysideration by the High Court. The appeal is allowed.

P.MOHAPATRA,J. Leave granted. LITTTTTTTJ One Chintaman Keshav Juker was the tenant in respect of the suit premises, described as number R o 6, Mantri Building, Ground Floor, Bhendi Lane, Gamdevi, Bombay. He died in the year 1958 leaving two sons, Kesrinath Chintaman Juker appellant No.1 herein and Ashok Chintaman Juker. Ashok was then a minor. After the death of Chintaman the rent bills rent receipts were issued in the name of Kesrinath. Kesrinath died in 1981. Thereafter the rent bills were issued in the name of his widow Smt. Kishori Kesrinath Juker respondent number2 herein . Kishore Pandurang Mantri the landlord respondent No.1 herein filed the suit for eviction against respondent No.2. The parties settled the dispute and the suit was disposed of in terms of the said settlement by the order dated 31.1.1994 which reads as follows Order Both plaintiff and defendant alongwith their respective advocates are present. Both plaintiff and defendant admits the companytents of the companysent terms as well as their respective signatures. Therefore the Consent Terms are taken on record and marked Ex.A. The decree was drawn up incorporating the terms of the settlement. The respondent No.1 filed the petition for execution of the decree dated 31.1.1994 in which a warrant of possession was issued on 23rd November, 1994. The appellants filed objection against the execution of the decree which was registered as Notice No.66 of 1994. The executing companyrt by the order dated 30th September, 1998 rejected the objection filed by the appellants and dismissed Notice No.66/94 holding inter alia that the companypromise decree is executable against them. The appeal filed by the appellants i.e. Appeal No.620/1999 was dismissed by the Court of Small Causes, Bombay Bench by order dated 8.9.2000. Civil Writ Petition No.5768 of 2000 filed by the appellants was dismissed by a Division Bench of the Bombay High Court by the judgment order dated 6th November, 2000. The said judgment order is under challenge in this appeal filed by special leave. The case of the appellants, shorn of unnecessary details,is that the appellant No.1, who is the husband of appellant No.2 and father of appellant Nos.3 to 5 became a tenant of the suit premises on the death of his father Chintaman in 1958. Therefore, he was entitled to occupy the premises as a tenant. The respondent No.1 filed a suit for eviction against respondent No.2 Smt Kishori Kesrinath Juker without impleading him appellant No.1 as a defendant. In the circumstances the companysent decree obtained in the suit is number binding on appellant No.1 and members of his family who are residing with him. They cannot, therefore, be evicted in execution of the said decree. The gist of the case of the respondent No.1 is that on the death of the original tenant Chintaman the rent bills were raised in the name of Kesrinath and after his death in the name of his widow the respondent number2. The appellant No.1 was number accepted as a tenant by the landlord. Indeed he has number been residing in the suit premises since 1962. In such circumstances it was number incumbent on the part of the respondent No.1 to implead the appellant No.1 as a defendant in the suit and he has numberright to obstruct delivery of possession of the premises in execution of the decree. Sri Dhruv Mehta, learned companynsel for the appellants strenuously urged that in view of the provision in section 5 11 of the Bombay Rent Control Act, 1947 hereinafter referred to as the Act defining the term tenant to mean all the members of the family of the tenant and appellant No.1 who was then a minor was undisputedly residing with his father Chintaman, the original tenant therefore he was a tenant alongwith his brother Kesrinath and the status companytinued till the date of the filing of the suit. The landlord having number impleaded appellant number1 as a defendant in the suit cannot get delivery of possession of the property in execution of the companysent decree which is number binding on him. Per companytra Shri Bhim Rao M. Naik, learned senior companynsel appearing for the respondents companytended that the trial companyrt and the appellate companyrt companycurrently held that the appellant No.1 had number been residing in the suit premises since 1962. In fact he had shifted to Kalyan and was residing in the premises owned by him there. He had also booked another accommodation at Borivli. Therefore, in the year 1992 when the respondent No.1 filed the suit for eviction the appellant No.1 was number a tenant in occupation of the suit premises and as such it was number necessary for the landlord to implead him as a defendant in the suit. The learned companynsel further companytended that the appellant No.1 having taken the stand that he was staying in the suit premises and he was paying the rent through his sister-inlaw respondent No.2 after death of his brother Kesrinath which has been disbelieved by the trial companyrt and the appellate companyrt, the High Court was right in declining to interfere with the order passed by the trial companyrt rejecting the objection to the execution of the decree filed by the appellants which was companyfirmed by the appellate companyrt. Before companysidering the case of the appellants on merits it is necessary to record the finding and observations made by the appellate companyrt, which are quoted below The evidence go to show that in 1962 or thereafter the present Obstructionists Ashok shifted to Kalyan. Not only that but thereafter he has acquired premises at Kalyan and booked the premises at Borivli. We are number companycerned with these premises and number necessary to give all particulars of those premises but this is an admitted fact because the witness has admitted in the cross examination. Not only that but in the company i.e. on the place of employment said Ashok Obstructionist No.1 has given his address of companyrespondence at Kalyan. This goes to show that his so called accrued right of tenancy has been either waived or the alleged right of tenancy which is acquired under section 5 11 has been surrendered or numberright has been claimed at all. In sub-section 11 of section 5 of the Act the expression tenant means any person by whom or on whose account rent is payable for any premises and include - a such sub-tenants and other persons as have derived title under a tenant before the companying into operation of this Act b any person remaining, after the determination of the lease, in possession, with or without the assent of the landlord, of the premises leased to such person or his predecessor who has derived title before the companying into operation of this Act c any member of the tenants family residing with him at the time of his death as may be decided in default of agreement by the Court. The language of the provision indicates that the definition of the term is an inclusive one and wide in its amplitude. In the present case we are companycerned with clause c of subsection 11 of section 5 which provides that tenant includes any member of the tenants family residing with him at the time of his death as may be decided in default of agreement by the Court. There are two requisites which must be fulfilled before a person is entitled to be called tenant under sub-clause c first he must be a member of the tenants family and secondly, he must have been residing with the tenant at the time of his death. Besides fulfilling these companyditions he must have been agreed upon to be a tenant by the members of the tenants family in default of such agreement the decision of the Court shall be binding on such members. The further question that arises for companysideration is whether a member of the family of the original tenant who claims to have been residing with the tenant at the time of his death can resist execution of a decree passed against a member of the tenants family who undisputedly was accepted by the landlord as a tenant on the death of the original tenant. The question that arises for companysideration in such cases is whether the tenancy is joint or separate. In the former case numberice on any one of the tenants is valid and a suit impleading one of them as a defendant is maintainable. A decree passed in such a suit is binding on all the tenants. Determination of the question depends on the facts and circumstances of the case. No inflexible rule or straightjacket formula can be laid down for the purpose. Therefore, the case in hand is to be decided in the facts and circumstances thereof. In the case of Ganpath Ladha vs. Sashikant Vishnu Shinde 1978 3 SCR 198 a Bench of three learned Judges of this Court companystruing the provision of section 5 11 of the Bombay Rent Act, 1947 held The Act interferes with the landlords right to property and freedom of companytract only for the limited purpose of protecting tenants against exercise of the landlords power to evict them in these days of scarcity of accommodation by asserting superior rights in property or trying to exploit his position by extracting too high rents from helpless tenants. The object was number to deprive the landlord altogether of his rights in property which have also to be respected. In the case of Kanji Manji Vs. The Trustees of the Port of Bombay, AIR 1963 SC 468, a bench of three learned Judges of this Court, companystruing the terms of the deed of assignment, observed as follows The argument about numberice need number detain us long. By the deed of assignment dated February 28, 1947, the tenants took the premises as joint tenants. The exact words of the assignment were that the Assignors do and each of them both hereby assign and assure with the Assignees as Joint Tenants. The deed of assignment was approved and accepted by the Trustees of the Port of Bombay, and Rupji Jeraj and the appellant must be regarded as joint tenants. The trial Judge, therefore, rightly held them to be so. Once it is held that the tenancy was joint, a numberice to one of the joint tenants was sufficient, and the suit for the same reason was also good. Mr.B.Sen, in arguing the case of the appellant, did number seek to urge the opposite. In our opinion, the numberice and the frame of the suit were, therefore, proper, and this argument has numbermerit. This Court in the case of H.C.Pandey vs. G.C. Paul AIR 1989 SC 1470 taking numbere of the settled position that on the death of the original tenant, subject to any provision to the companytrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant, held that it is a single tenancy which devolves on the heirs. There is numberdivision of the premises or of the rent payable thereafter and that is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants. This Court further held that the respondent acted on behalf of the tenants he paid rent on behalf of his father and he accepted numberice on behalf of all in the circumstances the numberice served under section 106 of the Transfer of Property Act on the respondent was sufficient and it was a valid numberice. In the case of Textile Association India Bombay Unit vs. Balmohan Gopal Kurup and another, AIR 1990 SC 2053, this Court on the facts and circumstances stated therein took the view that the ex-parte decree obtained against mother and brother was number binding against the respondent therein. In the case on hand, as numbered earlier, on the death of the original tenant Chintaman the rent bills in respect of the premises in question were issued in the name of his elder son Kesrinath and on his death the rent bills were issued in the name of his widow Smt.Kishori Kesrinath Juker. It is number the case of the appellant number1 that there was any division of the premises in question or that rent was being paid to the landlord separately by him. Indeed the appellant number1 took the plea that he was paying the rent through Smt. Kishori Kesrinath Juker. Thus the tenancy being one, all the members of the family of the original tenant residing with him at the time of his death, succeeded to the tenancy together. In the circumstances the companyclusion is inescapable that Smt. Kishori Kesrinath Juker who was impleaded as a tenant in the suit filed by the landlord represented all the tenants and the decree passed in the suit is binding on all the members of the family companyered by the tenancy. In the circumstances the decree passed in terms of the companypromise entered between the landlord and Smt. Kishori Kesrinath Juker can neither be said to be invalid number inexecutable against any person who claims to be a member of the family residing with the original tenant, and therefore, a tenant as defined in section 5 11 . The position that follows is that the appellants have numberright to resist on the ground that the decree is number binding on them. Further, the trial companyrt and the appellate companyrt companycurrently held that the appellant number1 has number been residing in the premises since 1962 i.e. when his elder brother Kesrinath was alive. Therefore, when the suit was filed in the year 1992 there was numbernecessity for the landlord to implead appellant number1 or members of his family in the suit since he landlord had numbercause of action for seeking a decree of recovery of possession from them. In that view of the matter the decree under execution does number suffer from any illegality or infirmity. Viewed from any angle the appellants have numberjustification on the facts as well as in law to resist execution of the decree for possession of the premises by the landlord.

C. Lahoti, J. In the early eighties large tracts of land were acquired in the State of Orissa by invoking the provisions of Land Acquisition Act, 1894 for establishing an aluminium smelter plant and other ancillary industries, civil township and supporting services. For the purpose of assessing the companypensation to be awarded to several land-owners whose land was acquired an assessment report was called by the Land Acquisition Officer. The land companysists of two kinds i Sarad-I Dofasali, and ii Taila. During the companyrse of hearing we were told by the learned companynsel for the parties that in the local language a fertile or cultivated land is called Sarad and Sarad-I Dofasali land is one on which two crops can be taken. Taila is a barren land. The assessment report appointed the value of cultivable land at Rs.12,500/- per acre and of barren land at Rs.7,500/- per acre. On 27.5.1982 the Collector of District Dhenkanal, where the land is situated, addressed a letter to the Divisional Commissioner stating that the rates of land appointed by the assessment report were on the lower side and he recommended that Rs.22,000/- and Rs.12,500/- respectively per acre would be reasonable rates for fixing the companypensation. The Land Acquisition Officer made an award accepting the rates suggested by the Collector. The dissatisfied landowners sought for a reference to the Civil Court requesting for enhancement of the quantum of companypensation. The learned Sub-Judge after recording evidence arrived at a finding that a rate of Rs.40,000/- per acre for Sarad land and a rate of Rs.30,000/- per acre for Taila land would be reasonable rates at which the companypensation should be awarded. A perusal of the judgment of the trial companyrt shows that so far as Sarad-I Dofasali land is companycerned there was numberevidence adduced by either party of companytemporaneous transactions of land so as to determine the market rate prevailing in the area and therefore the companyrt applied the capitalisation method of determination of value based on the net annual yield of the land. The learned Trial Judge determined the annual net yield of the land at Rs.2,000/- per acre and then by capitalising the same by applying a multiplier of 20, determined the value of the land at Rs.40,000/- per acre. The finding as to the value of Taila land was based on the inference drawn from evidence of transactions of sale of land adduced by the parties. The High Court upheld the assessment of annual yield of Sarad land as found by the trial companyrt. However, the learned Single Judge was of the opinion that multiplier of 20 as applied by the trial companyrt was on the higher side and a multiplier of 16 only should have been adopted. Accrdingly the value of Sarad land has been determined at Rs.32,000/- per acre. As to Taila land the High Court formed an opinion that the rate of Rs.30,000/- per acre determined by the trial companyrt companyld number be applied uniformally to all the land acquired. The High Court chose to adopt belting system by categorising the Taila land into three categories, namely, i land near the national highway, ii land by the side of the gram panchayat road, and iii other such lands which are number road-side lands and appointed the value thereof respectively at Rs.35,000/-, Rs.30,000/- and Rs.25,000/- per acre. Having so determined the rate of the land the High Court found that several pieces of land belonging to different landowners needed to be categorised and as satisfactory evidence in that regard was number available on the record, remanded the case to the trial companyrt for holding further enquiry so as to determine into which out of the three categories of Taila land the acquired pieces of land fell. Feeling aggrieved by the judgment of the High Court, the National Aluminium Co. Ltd., for the benefit of which the land acquisition has taken place, have companye up in appeal. We have heard the learned companynsel for the parties. Ordinarily, the most accepted and recognised method of appointing companypensation for land acquisition is to find out the value of the land prevailing on the date of numberification under Section 4 of the Land Acquisition Act which can best be enabled by tendering in evidence documentary evidence showing the price at which similar pieces of land have been bought and sold on and around the date of numberification. Where there are numbersales of companyparable land the value has to be found out in some other way. One of the methods is to find out the annual income of the land which the owner has been deriving or is expected to derive from the use of the land and capitalise the same by adopting a multiplier. In Union of India and Anr. Vs. Smt. Shanti Devi etc.etc. - AIR 1983 SC 1190 this Court has said The capitalised value of a property is the amount of money whose annual interest at the highest prevailing interest at any given time will be its net annual income. The net annual income from a land is arrived at by deducting from the gross annual income all outgoings such as expenditure on cultivation, land revenue etc. The net return from landed property, generally speaking, reflects the prevalent rate of interest on safe money investments. It was a case of very large tract of agricultural land having been acquired for Beas project. This Court held that in the facts and circumstances of that case 15 years purchase would be proper for determining the companypensation and number 20 years purchase. Our attention has been invited to a Division Bench decision of the High Court of Orissa in Land Acquisition Zone Officer Vs. Damberudhar Pradhan and Ors. - AIR 1991 Orissa 271 wherein on a companyspectus of decided cases, the Division Bench has held that 16 years purchase was ideal to be adopted for fixing the market value of the land in Orissa. The High Court has adopted the same multiplier for this case. We do number find any fault therewith, in the facts and circumstances of the case and approve the same. As to Taila land numberfault can be found with the belting system adopted by the High Court so as to make a distinction between three categories of land which would obviously be having different market values. The submission of Shri Altaf Ahmad, the learned Additional Solicitor General is that the appellants were seriously aggrieved by the finding arrived at by the trial companyrt and substantially accepted by the High Court in the matter of appointing the sale price of the land. The learned Additional Solicitor General has carried this Court through the evidence adduced by the parties and available on the record of the trial companyrt. We agree with the learned ASG that the evidence adduced by the claimants and the finding arrived at by the trial companyrt suffer from a few infirmities. Firstly, the pieces of land forming subjectmatter of acquisition are large pieces of land while the evidence adduced by the landowners companysist of transactions relating to small pieces of land or plots. The value of small pieces of land is always on the higher side and large pieces of land may number fetch the price at the same rate. Secondly, very skeleton evidence has been adduced by the landowners. In some of the cases there are just one or two transactions placed on record. Thirdly, satisfactory evidence has number been adduced by showing the locations of the land forming subjectmatter of transactions tendered in evidence so as to enable a finding being satisfactorily recorded that the transactions were of land companyparable with the one under acquisition. In our opinion, in the facts and circumstances of the case it would suffice if the figures of the value arrived at by the High Court were discounted by 25 approximately. In other words, the rate at which the companypensation should be calculated in respect of Taila land should be at the rate of Rs.27,000/-, Rs.22,500/- and Rs.18,000/- respectively in place of Rs.35,000/-, Rs.30,000/- and Rs.25,000/- per acre as appointed by the High Court. We make it clear that we have followed the abovesaid approach number so much by way of any principle but more by way of finding out a reasonable solution so as to give a quietus to this litigation. The lands were acquired in early eighties and by this time a period of about 20 years has elapsed. We are companyvinced of the need of avoiding a remand to record further evidence in this regard except to the extent companysidered unavoidable by the High Court. We are told that there are still a large number of cases pending and awaiting finalisation of land acquisition companypensation and they all need to be disposed of expeditiously.

S. SINGHVI, J. Leave granted in the special leave petitions. Dr. Ram Tawakya Singh, who had filed writ petition before the Patna High Court for quashing the appointments of Vice-Chancellors and Pro Vice-Chancellors of different Universities in the State of Bihar, has questioned the directions companytained in order dated 7.12.2012 passed by the Division Bench of that Court. The State of Bihar and two others have also filed an appeal against the order of the High Court and simultaneously questioned the numberifications issued by the Chancellor for appointment of Vice-Chancellors and Pro Vice-Chancellors. Dr. Ram Tawakya Singh has filed Writ Petition No.158/2013 for quashing the appointments of the private respondents as Vice-Chancellors and Pro Vice-Chancellors. The background facts 3.1 By Notifications dated 9.4.2010 and 15.4.2010, the Chancellor appointed Dr. Arvind Kumar and Dr. Subhash Prasad Sinha as Vice-Chancellor of Magadh and Veer Kunwar Singh Universities, respectively. The same were challenged by Dr. Pramod Kumar Singh and Dr. Ram Tawakya Singh in CWJC No.8141/2010 on the ground that the Chancellor had number companysulted the State Government as per the requirement of Section 10 2 of the Bihar State Universities Act, 1976 for short, the BSU Act . The learned Single Judge of the Patna High Court allowed the writ petition and quashed the numberifications issued by the Chancellor. He referred to the affidavits filed by the parties, the documents produced by them as also the documents summoned by the Court and observed From the various averments as well as the relevant extract of the numberings of the file annexed with the supplementary companynter affidavit filed on behalf of the State there is sufficiency of material to show that the stand of the State is un-ambiguous that there was numberconsultation of any kind on the issue of appointment of Vice Chancellors including the two Vice Chancellors whose appointments are under challenge in the present writ application. The Court opines that if there was any companysultation, there would number have been occasion for the Minister or the State to take such clear and categorical stand on the issue of companysultation and to annex all those numberings of the file to show that there was actually numberconsultation, so far as the State was companycerned. Now, let us take numberice of the stand taken by the office of the Chancellor on whose behalf companynter affidavit dated 23.03.2011 was initially filed. This companynter affidavit has been sworn by one Kumar Braj Kishore Sahani, who is stated to be the Joint Secretary in the Governors Secretariat and he has stated that he was well acquainted with the facts and circumstances of the case. The affidavit also states that he has been authorized to swear affidavit in this case on behalf of respondent number 2 i.e. Chancellor of Universities, Raj Bhawan, Patna. What is relevant in this affidavit is paragraph 5 which is being reproduced for ready reference - That the Vice Chancellor of V.K.S. University, Ara and the Vice Chancellor of Magadh University, Bodh Gaya have been appointed by the Hon?ble Chancellor in companysultation with the State Government on 29th March, 2010, and Notifications of appointments of Vice Chancellors as per provisions of Section 10 2 of the B.S.U. Act, 1976 were issued from the Chancellors Secretariat on 9.4.2010 Ann. 7 of the I.A. and on 15.4.2010 Ann. 8 of the I.A. . It is wrong to allege that there had been numberconsultation with the State Government. A stand has been taken on behalf of the Chancellor that since the numberification itself talks in terms of companysultation with the State Government on 29.03.2010, then it is a companyplete answer to the companytroversy which have been created in the matter of appointment of two Vice Chancellors because numberhing more is required to be seen beyond the numberification. Court was number satisfied with such a sweeping stand taken on behalf of the Chancellor, in view of other over-whelming evidence which have been brought on record number only by the petitioners but also by the State Government. In this background, the Court directed production of the file relating to companysultation which supposedly took place with the State Government on 29.03.2010. Learned Senior Counsel representing the Chancellor, namely, Mr. Y. V. Giri tendered a file for perusal by the Court to show that there was companysultation with the then H. R.D. Minister on the issue, based on which the Chancellor made the appointments of the two Vice Chancellors. The file in question is file No. ACT 01/10 which has an endorsement Bihar State Universities Tribunal Act. Reliance was placed by the learned Senior Counsel representing the Chancellor to pages 51, 52 and 53 of the said file. The Court observed that since the file in question did number relate to appointment of Vice Chancellors but with regard to companystitution of a University Tribunal and the objections of the Governor to ratification of the said bill. The relevant pages, namely, page number. 51, 52 and 53 of the said file was ordered to be brought on record by way of an affidavit so that all the parties to the dispute including the Court had the benefit of looking into the same closely on the question of companysultation with the State. A companynter affidavit again on behalf of respondent number 2 i.e. the Chancellor duly sworn by Kumar Brij Kishore Sahani, Joint Secretary in the Governors Secretariat dated 18.04.2011 was filed annexing the said pages as Annexure R-2/1. This is supposed to be the portion of the file in which the so called companysultation for appointment of Vice Chancellors took place or its evidence is reflected though the main minutes in the file deals with companystitution of Bihar Universities Tribunal. Since the numbering on the question of companysultation is in the purported hand of the Chancellor which speaks for itself, therefore, the Court feels that all the pages itself should be reproduced as part of this order. Annexure- R-2/1, therefore, is duly scanned and forms part of this order. The numbere of the Chancellor is number fully legible. The Court has meticulously gone through the said numbere of the Chancellor which has been purportedly made in his own pen. The first thing which the Court numberices is that the numbere does number have any initial of the Minister and it has been incorporated in a file number even related to the question of appointment of Vice Chancellors to the Universities of Bihar muchless the Universities in question. There is obvious evidence that the visit of the Minister to the Raj Bhawan and the discussion he had with the Chancellor, primarily, related to the objections the Governor had in giving his assent to the Universities Tribunal Bill, which was pending approval of His Excellency for many a months, if number more than a year. Another significant aspect which emerges from the numbering is that numberseparate Minutes came to be drawn up on a separate file or piece of paper as if Chancellors Secretariat lacks stationery or Secretarial assistance. It was number even sent to the Minister for his signature or acknowledgment of what was recorded. It also shows that even a file was number opened on the issue of appointment to such important posts of Vice Chancellors. What was the companypelling circumstance under which such a numbering was done remains a mystery wrapped in an enigma. A reading of the said numbere, even if it is accepted as evidence of the so called companysultation, it does number show that the two names were even mentioned for appointment as Vice Chancellors to the two Universities, namely, Magadh University or Veer Kunwar Singh University, in the so called discussion. There is generality of discussion that vacancies are existing in the Universities and there was some urgency of filling up those vacancies on due priority. But that by itself did number mean by giving a go bye to the law. It is also number further understood or explained as to why the so called Minutes, if at all, companyld number be drawn up subsequently and referred to the companycerned Minister of H.R.D. for obtaining his signature as a proof of his agreeing of what was recorded therein. The Court is number aware of any Minutes being drawn up unilaterally without any endorsement or acknowledgment thereto of the parties to such companysultation or deliberations. It is also number understood as to what was the occasion for the Chancellor to make such endorsement on a file and on a Minute which dealt through and through with regard to objections His Excellency had to give assent to a Bill relating to companystitution of a Tribunal for the Universities. Court has serious reservation whether the above exercise amounts to companysultation on behalf of the State, based on which the Chancellor companyld go ahead and make unilateral appointments of Vice Chancellors, without even basic materials or subject of companysultation existing before the two authorities. How did the Chancellor zero down on these two names still stands a mystery and unexplained. No further companyments on the issue as well as the so called material of companysultation is required to be offered by the Court. Inferences are obvious. The Court can number well appreciate the background to the H.R.D. Minister?s numberings and letters denying any companysultation on the issue of appointment of Vice Chancellors. Though he does accept that his visit to Raj Bhawan related to discussion on the Tribunal Bill and that alone, the stand of the Minister stands companyroborated and seems more closer to the actual state of affairs, as numbering by the Chancellor is in the file relating to the University Tribunal Bill and that too on the page of the Minutes dealing with the Tribunal Bill. The Court, therefore, has serious reservation or doubt whether this evidence or proof can be taken as the ultimate answer or material showing companysultation between the State and the Chancellor, meeting the requirement of companysultation undern section 10 2 of the Act, vesting him with the authority to make appointments at his level on the post of Vice Chancellors to the two Universities. emphasis supplied 3.2 The learned Single Judge then adverted to the judgments of this Court in Union of India v. Sankat Chand Himatlal Sheth and another AIR 1977 SC 2328, S.P. Gupta v. Union of India AIR 1982 SC 149, Gauhati High Court and another v. Kuladhar Phukan 2002 4 SCC 524 and held There companyld be an arguable case that even the Chancellor has some flexibility with regard to suggesting names which may companye within his knowledge or domain but those details and opinion must be shared and deliberated between the State Government and the Chancellor and some kind of opinion reached, before it can be said that there was companysultation with regard to the persons who are fit or otherwise deserving to be appointed as Vice Chancellors. Obviously, the manner and the way appointments to the two posts have been made, in the opinion of this Court, does number satisfy the requirement of companysultation and there is much a-miss with regard to the way the whole exercise has been carried out at the office of the Chancellor and in the manner in which Chancellor has gone about making appointments to the post. Consultation with the State is a must. Consultation with the State must be effective. Consultation also means placing of materials between the companysulting and the companysulted party. There has to be proper deliberations by producing all materials duly recorded to show that such exercise was carried out and there was application of mind with regard to all those persons who may be otherwise eligible. If all these elements are missing and there is numberevidence in this regard in existence, then the Court will have numberhesitation in recording that any appointment made, may be at the behest or at the level of the Chancellor, would be in clear breach of the requirements of Section 10 2 of the Act. There is numberabsolute power of the Chancellor to make appointment on the post of Vice Chancellor or Pro Vice Chancellor at his level without the companysultation with the State within the meaning of law enunciated by Courts and as mandated and that alone would satisfy the requirement of companysultation under section 10 2 of the Act. In this case there are predominant materials to show that there was never any companysultation with any State authorities and the Chancellor on the question of appointment of two Vice Chancellors. If the two Vice Chancellors came to be appointed in breach of Section 10 2 of the Act, then the appointment will have to be interfered with and the issue cannot be allowed to rest. emphasis supplied 3.3 Letters Patent Appeal Nos. 822 and 824 of 2011 filed by Dr.Subhash Prasad Sinha and Dr. Arvind Kumar, respectively were dismissed by the Division Bench of the High Court vide judgment dated 8.9.2011, paragraphs 18 and 19 of which are extracted below 18 The word shall is only indicative. The need of companysultation is between two companystitutional authorities, one is the Chancellor whose rule has been numbericed above and the other is the State Government which has a high stake in ensuring that standard of higher education in the State is maintained and the hundreds of crores of rupees allocated to the Universities every year are well utilized by appointment of suitable persons who are number only reputed for their scholarship and academic interest but can also be good administrators, capable of safeguarding the finances and interests of the Universities. The Governor as Chancellor does number have the elaborate requisite machinery to enable him to form the appropriate opinion for appointing persons as Vice Chancellors and this is adequately taken care of by providing companysultation with the State Government. The nature of duty of both the Constitutional authorities in this companytext is to promote public interest and interest of higher education by selecting and appointing best persons available out of eligible candidates. To achieve this object the stipulated companysultation has to be effective. It is number only desirable but clearly a must, before selection and appointment. Though the judgment of the Supreme Court in the case of Indian Administrative Service SCS Association v. Union of India 1993 1 Supp. 22 SCC 731 has been cited on behalf of the appellants, a careful perusal shows that the settled principles as to what shall companystitute companysultation and when it is mandatory do number support the case of the appellants. The judgment approves that prior companysultation is mandatory and moreso if its violation would affect fundamental rights or fair procedure. In the present case, the dispute whether opinion or advice of the State Government will bind the Chancellor or number is number at all in issue. The companytroversy is in respect of earlier stage as to whether the State Government should have adequate opportunity to give its opinion or advice in respect of the appointees. The procedure and details as to who shall be taken into companysideration on account of eligibility and who shall be selected out of eligible persons has rightly number been prescribed by the Act because the appointment and companysultation process has been left in the hand of high Constitutional functionaries. Nonetheless, like any selection process it must be fair. Consultation with the State Government has been introduced by the Legislature with the obvious aim of making the selection procedure wider in ambit, deeper in companytents, transparent and fair. The State Government has the means to render intensive and extensive information and input in companyrse of companysultation. The companysultation in such important matter and at such high level needs to be effective so that after the Chancellor has made tentative choice on companysidering the entire information and input given by the State Government, the latter may provide further relevant information, if available, in respect of tentatively selected persons, in order to avoid the risk of Universities being placed in the hands of wrong persons or unsuitable persons. emphasis supplied 3.4 The special leave petitions filed by the two appointees, which were registered as SLP C Nos. 27644/2011 and 27725/2011, were dismissed by this Court on 29.9.2011. 3.5 During the pendency of the letters patent appeals before the High Court, the Chancellor issued Notifications dated 1.8.2011 and 3.8.2011 for appointment of as many as ten persons as Vice-Chancellors and Pro Vice-Chancellors of different Universities of the State. The details of these appointments are as under Sl.NotificatioMemo No. Name Appointed as No.n date 1 01/08/11 BSU-13/2011-1789 GS Dr. ShambhuVice-Chancel Nath Singh lor of Patna University, Patna 2 01/08/11 BSU-13/2011-1834 GS Dr. Bimal Vice-Chancel Kumar lor of R.A.Univer sity, Muzafar 3 01/08/11 BSU-13/2011-1864 GS Dr. Ram Vice-Chancel Vinod Sinhalor of P.Universi ty, Chapra 4 01/08/11 BSU-13/2011-1819 GS Dr. Arun Vice-Chancel Kumar lor of N.Mandal University, Madhepura 5 01/08/11 BSU-13/2011-1849 GS Dr. Arvind Vice-Chancel Kumar lor of Pandey K.S.D. Sanskrit University, Darbhanga. 6 01/08/11 BSU-13/2011-1804 GS Dr. Md. Vice-Chancel Shamsuzzohalor of Maulana Maharul Haque Arabic Persian University, Patna 7 01/08/11 BSU-13/2011-1924 GS Dr. Pro Pushpendra Vice-Chancel Kumar Vermalor of B.N. Mandal University, Madhepura 8 01/08/11 BSU-13/2011-1894 GS Dr. Pro Kumaresh Vice-Chancel Prasad lor of L.N. Singh Mithila University, Darbhanga 9 01/08/11 BSU-13/2011-1879 GS Dr. SultanaPro Khushood Vice-Chancel Jabeen lor of Maulana Mazharul Haque Arabic Persian University, Patna 10 03/08/11 BSU-13/2011-1941 GS Dr. Lal Pro Keshwar Vice-Chancel Prasad lor of Patna Singh University 3.6 The afore-mentioned appointments also became subject matter of challenge in C.W.J.C. No.15123 of 2011 filed by Dr. Ram Tawakya Singh mainly on the ground that the Chancellor had number companysulted the State Government as per the mandate of Section 10 2 of the BSU Act and Section 11 2 of the Patna University Act, 1976 for short, the PU Act . 3.7 In the companynter affidavits filed by the appointees an objection was taken to the locus standi of Dr. Ram Tawakya Singh on the premise that he was number eligible to be appointed as Vice-Chancellor or Pro Vice- Chancellor. The Division Bench of the High Court rejected the objection by observing that being a member of the teaching faculty of a University in the State, the petitioner was legitimately entitled to see that appointments to the offices of Vice-Chancellor and Pro Vice-Chancellor are made in accordance with law from amongst those who are qualified and are meritorious. The Division Bench then companysidered the question whether the Chancellor had made appointments in companysultation with the State Government and answered the same in negative by recording the following observations It is evident that the Chancellor had the meeting with the Chief Minister, and that both the Chancellor and the Chief Minister were aware of the subject matter of discussion. The Chief Minister being the representative of the State Government, we cannot say that the Chancellor did number companysult the State Government or that the State Government was number aware of the names selected by the Chancellor. But, in our opinion, it is number enough that the State Government was aware of the subject matter. If the State Government were satisfied by mere discussion, we would say that the State Government failed in discharge of its duty or abdicated its power. A proper companysultation would be when the Chancellor forwards the names selected by him with the relevant materials and the State Government companysiders such names and scrutinizes the materials, the State Government may have or may companylect further materials from its own resources and records its own opinion in respect of each such name. The matter of appointment of Vice-Chancellors or Pro Vice- Chancellors cannot be taken lightly. It would be the duty of the Chancellor and the State Government to select the best person or at least number to select a wrong person. We do number propose to enter into the eligibility, academic qualifications, general reputation, integrity or moral standards of any of the respondents Vice-Chancellors or Pro Vice-Chancellors. It is the function of the Chancellor to examine the materials on hand and to companysider the opinion of the State Government and the materials forwarded by the State Government, if any. Once, the Chancellor has examined the materials and is satisfied, that would be sufficient companypliance with the statutory provisions. We do number propose to say that the Chancellor is required to receive recommendations from the State Government or that the opinion of the State Government is binding upon the Chancellor. No, that is number what the Legislature has intended. All that the Legislature has intended is that the Chancellor should obtain opinion of the State Government before he makes the appointment of Vice- Chancellors or Pro Vice-Chancellors selected by him. The opinion of the State Government may or may number be accepted by the Chancellor. The Chancellor being the supreme authority, it is the decision of the Chancellor which shall prevail, but number without obtaining the opinion of the State Government on the proposed names. As recorded hereinabove, at numberpoint of time before the Chancellor discussed the matter with the Chief Minister, the names proposed by the Chancellor were disclosed to the State Governent. In absence of the disclosure of the names, the State government companyld number have applied its mind or formed an opinion. A mere discussion without application of mind or forming an opinion, in our view, is number the Consultation envisaged by the above referred Acts of 1976. emphasis supplied 3.8 In view of the findings recorded by it, the Division Bench of the High Court allowed the writ petition and quashed the appointments of Vice-Chancellors and Pro Vice-Chancellors and directed that fresh appointments be made in companysultation with the State Government. The operative portion of order dated 7.12.2012 passed by the Division Bench reads thus For the aforesaid reasons, we hold that the appointment of the respondent number. 20 to 29 as Vice-Chancellors or Pro-Vice- Chancellors in the companycerned Universities have been made without Consultation as envisaged by Sections 10 2 and 12 of the Bihar Universities Act, 1976 and by Sections 11 and 14 of the Patna University Act, 1976. All the ten appointments are, therefore, vitiated and are void ab initio. For the aforesaid reasons, CWJC No. 15123 of 2011 is allowed. The impugned numberifications dated 1st August, 2011 and 3rd August, 2011 are quashed and set aside. The appointment of the respondent number. 2O to 29 is held to be illegal and companytrary to the Bihar Universities Act, 1976 or the Patna University Act, 1976, as the case may be, and are set aside. The Chancellor will, within one month from today, propose names for appointment of Vice-Chancellors and Pro Vice-Chancellors in the above referred Universities to the State Government with the relevant materials. The State Government will, within 30 days therefrom, forward its opinion in respect of all such names to the Chancellor. After receipt of such opinion, the Chancellor will make the appointment of Vice-Chancellors and Pro Vice-Chancellors in the respondents Universities. We make it clear that the petitioner will have numberright to submit his candidature or a right to be companysidered for appointment as Vice- Chancellor or Pro Vice-Chancellor in any of the respondents Universities. Dr. Ram Tawakya Singh has challenged the direction given by the High Court mainly on the ground that the selection of Vice-Chancellors and Pro Vice-Chancellors cannot be left in the hands of the Chancellor without any mechanism for preparation of panel of candidates by a Search Committee companysisting of academicians and educationists. He has also questioned the direction given by the High Court virtually debarring him from being companysidered for appointment as Vice-Chancellor or Pro Vice-Chancellor. The State of Bihar and others have challenged the order of the High Court on the ground that the view taken by it on the scope of Sections 10 2 and 12 1 of the BSU Act and Sections 11 2 and 14 1 of the PU Act is companytrary to the one expressed by the companyrdinate Bench in LPA Nos. 822 and 824 of 2011. On 18.3.2013, this Court heard the arguments of learned companynsel for the State and some of the private respondents who had appeared on caveat and stayed the operation of Notifications dated 9.2.2013 and 19.2.2013 issued by the Chancellor appointing the private respondents as Vice- Chancellors and Pro Vice-Chancellors. That order is being reproduced below because one of the companytentions urged by the companynsel for the private respondents is that the appellants had misled the Court in passing an interim order Delay companydoned. This petition is directed against order dated 7.12.2012 passed by the Division Bench of the Patna High Court in Civil Writ Jurisdiction Case No. 15123 of 2011, whereby certain directions were given in the mater of appointments of Vice-Chancellors and Pro Vice-Chancellors in various universities of the State. The operative portion of the High Courts order reads thus For the aforesaid reasons, we hold that the appointment of the respondent number. 20 to 29 as Vice-Chancellors or Pro Vice-Chancellors in the companycerned Universities have been made without Consultation as envisaged by Section 10 2 and 12 of the Bihar Universities Act, 1976 and by Sections 11 and 14 of the Patna University Act, 1976. All the ten appointments are, therefore, vitiated and are void ab initio. For the aforesaid reasons, CWJC No. 15123 of 2011 is allowed. The impugned Notifications dated 1st August 2011 and 3rd August, 2011 are quashed and set aside. The appointment of the respondent number. 20 to 29 is held to be illegal and companytrary to the Bihar Universities Act, 1976 or the Patna University Act, 1976, as the case may be, and are set aside. The Chancellor will, within one month from today, propose names for appointment of Vice-Chancellors and Pro Vice- Chancellors in the above referred Universities to the State Government with the relevant materials. The State Government will, within 30 days therefrom, forward its opinion in respect of all such names to the Chancellor. After receipt of such opinion, the Chancellor will make the appointment of Vice-Chancellors and Pro Vice-Chancellors in the respondents Universities. We make it clear that the petitioner will have numberright to submit his candidature or a right to be companysidered for appointment as Vice-chancellor or Pro Vice-Chancellor in any of the respondents Universities. Copied from the SLP Paper book The petitioners have also questioned the companysequential actions taken by the Chancellor for appointment of Vice- Chancellors and Pro Vice Chancellors in various Universities of the State. We have heard Shri Harish Salve, learned senior companynsel for the petitioners and perused the record. Issue numberice, returnable on 16.04.2013. Dasti, in addition, is permitted. Shri Amit Pawan, learned companynsel instructing Dr. Rajeev Dhawan, Shri Amrendra Sharan and Shri Uday U Lalit, learned senior companynsel accepts numberice on behalf of respondent number. 20, 21 and 22. Shri Harish Salve strongly pressed for stay number only of the order passed by the High Court, but also of numberifications dated 9.2.2013 and 19.02.2013 issued by the Governor-cum-Chancellor, Bihar for appointment of the private respondents as Vice- Chancellors and Pro Vice-Chancellors of different Universities. Dr. Rajeev Dhawan, S Shri Amrendra Sharan and Uday U Lalit vehemently opposed the prayer made by Shri Salve. Dr. Dhawan submitted that the exercise undertaken by the Chancellor and the Government for appointment of Vice-Chancellors and Pro Vice- Chancellors cannot be questioned in the special leave petition which is essentially directed against order dated 7.12.2012 of the High Court and if any person feels aggrieved by the appointments made in furtherance of the directions given by the High Court, then he can avail appropriate legal remedy. Learned senior companynsel submitted that this Court can examine the legality of numberifications dated 9.2.2013 and 19.02.2013 only if an independent writ petition is filed for that purpose. Dr. Dhawan was joined by Shri Sharan and Shri Lalit in making a submission that the prayer made by Shri Salve should number be accepted because only few of the candidates mentioned in the list annexed with companymunication dated 5.1.2013 sent by the Secretary to the Governor are shown to be facing criminal cases and any deficiency in their candidature cannot be used against the other respondents, who are fully qualified and have been found suitable for the posts of Vice- Chancellors and Pro Vice Chancellors. Learned companynsel then submitted that it will number be desirable to create vacuum in the positions of Vice-Chancellors and Pro Vice-Chancellors because that would adversely affect the functioning of the Universities and the students companymunity. In his rejoinder submissions, Shri Salve invited the Courts attention to the regulations framed by the University Grants Commission, which were circulated on 30.06.2010 for selection of Vice-Chancellors and Pro Vice-Chancellors of the Universities and claimed that even though Legislature of the State of Bihar had made appropriate amendments in the relevant enactments and forwarded the same to the Governor in the month of March, 2011, the latter has neither approved number returned the same to the State Legislature. We have companysidered the respective submissions. The record of the case shows that in the purported companypliance of the direction given by the High Court on 7.12.2012, the Secretary to the Governor sent letter No. 2C GS GB dated 5.1.2013 to the Principal Secretary to the Chief Minister, Government of Bihar stating therein that in exercise of powers companyferred upon him under Section 10 1 and 2 and Section 12 1 of the Bihar State Universities Act, 1976 as amended up to date as well as Sections 11 and 14 of the Patna University Act, 1976 as amended up to date and Sections 11 1 and 2 of the Nalanda Open University Act, 1995 as amended up to date , the Chancellor proposes to appoint the persons named in Annexure-A and Annexure-B as Vice-Chancellors and Pro Vice-Chancellors against the vacancies existing in the Universities and sought the Chief Ministers view on the names. In the last companyumn of the lists enclosed with letter dated 5.1.2013, few lines were recorded about the capabilities of the candidates to be appointed as Vice-Chancellors and Pro Vice-Chancellors. In response to the aforesaid letter, the Principal Secretary to the Chief Minister of Bihar sent companymunication dated 21.1.2013 to the Special Secretary to the Governor, paragraphs 1 to 3 and last paragraph of which read as under In companypliance of the Honble High Court order in the CWJC No. 10569 of 2011, the envisaged Consultation process has to be meaningful and based on substantive material. The order clearly mentions that the legislature has cast a duty upon the State Government to scrutinize the names proposed by the Chancellor for appointment of Vice- Chancellors and Pro-Vice-Chancellors for their academic qualifications, experience, integrity and moral standards. It is to bring to your numberice that the list sent by you companytains only qualifications and experience and that too in a very brief and inadequate manner. There is numberrecord of their vigilance clearance or integrity and moral standards. Hence it is number possible for us to scrutinize the names as envisaged in the Honble High Court order. Further prima facie, this is to point out that the proposed list companytains name of one such person who has the criminal proceedings pending against him i.e. Sl. No.4 of the proposed Vice Chancellors List. Please refer page number16 of the Honble High Court order wherein it has been admitted by the advocate of the person referred above. The list also do number mention the name of the University against which proposed names are companytemplated for companysideration. You are therefore requested to kindly arrange for the required information with details in your possession so that an effective companysultation takes place between the companysulting parties. companyied from the SLP paper book Thereafter, the Secretary to the Governor sent letter dated 28.1.2013 to the Principal Secretary to the Chief Minister mentioning therein that if the latter is in possession of substantive and credible materials as to the integrity and moral standards of the persons named in the companymunication sent by the Governors Secretariat, then the same may be forwarded for being placed before the Chancellor. The Secretary to the Governor also wrote that if the Chief Minister has any record of judicial companyviction, instead of merely criminal proceedings pending, against the name at serial number4 in the list, then he may send the same for being companysidered by the Chancellor. After 12 days, the Principal Secretary to the Chief Minister sent letter dated 9.2.2013 to the Special Secretary to the Governor enclosing therewith summary of the report received from the Department of Education on various candidates mentioned in the list forwarded by the office of the Chancellor. On the same date, the Governor-cum-Chancellor issued numberification dated 9.2.2013 appointing the private respondents as Vice-Chancellors and Pro Vice-Chancellors of different Universities. In response to the Courts query, the learned senior companynsel appearing for respondent Nos. 20 to 22 gave out that they are number in a position to say whether or number the amendments made by the State Legislature have been approved by the Governor. The question whether the Governor had kept pending for two years, the Bill passed by the State Legislature and whether there was any justification will require serious companysideration by the Court at the time of final adjudication of the matter. However, at this stage, we are prima facie satisfied that the selection of Vice-Chancellors and Pro Vice- Chancellors has number been made by following the procedure laid down in the UGC Regulations because numbersuch Committee was companystituted by the Chancellor for preparing panel of the candidates who companyld be companysidered for such appointments. We may also observe that even in the absence of UGC Regulations, appointment to the posts of Vice-Chancellors and Pro Vice- Chancellors companyld have been made by the Chancellor in companysultation with the companypetent authority only after following some procedure companysistent with the doctrine of equality enshrined in Article 14 of the Constitution so as to enable all eligible persons to companypete for selection. In a somewhat similar case, this Court had an opportunity to companysider the legality of the appointment of Director of the Indian Statistical Institute and it was held that selection made without following the procedure laid down in the bye-laws of the society and issuing public numberice was companytrary to Article 14 of the Constitution. See B.S. Minhas v. Indian Statistical Institute and others 1983 4 SCC 582 . De hors the above observations, we are of the view that even though the special leave petition is primarily directed against the order of the High Court, this Court can take companynizance of the subsequent events including numberifications dated 9.2.2013 and 19.2.2013 issued by the Chancellor and pass appropriate order in the matter. A reading of the letter sent by the Principal Secretary to the Chief Minister to the Special Secretary to the Governor on 9.2.2013 shows that criminal companyplaints are pending against some of the candidates who were proposed by the Chancellor to be appointed as Vice-Chancellors and Pro Vice- Chancellors and were actually appointed against those posts on 9.2.2013. Against two of them charge sheets have already been filed in the companypetent Court. Against one of the candidates, charge sheet has been filed under Sections 341/342/506 and other provisions of IPC read with Section 3 x of the Scheduled Castes and the Scheduled Tribes Prevention of Atrocities Act, 1989. Against another candidate, a case has been registered under Section 420/409/467/468/471 and other provisions of IPC read with Sections 13 and 14 of Prevention of Corruption Act. One more case is said to have registered against him under Sections 420/409/467 and other provisions of IPC. All this, prima facie, indicate that the Chancellor did number at all apply his mind on the question of suitability and desirability of appointing the particular candidates as Vice-Chancellors and Pro Vice-Chancellors. Why this was done would require serious scrutiny by the Court which is possible only after giving opportunity of hearing to the private respondents and the Chancellor. However, the manner in which the Chancellor has made appointments albeit in the guise of adhering to the time schedule fixed by the Division Bench of the High Court leaves much to be desired. The High Court had number fixed any time limit for the Chancellor to take final decision after receiving the opinion of the State Government. One months time was fixed by the Court for the Chancellor to propose the names for appointment of Vice-Chancellors and Pro Vice-Chancellors in various Universities and forward the same to the Government with relevant materials. The State Government was required to forward its opinion within next 30 days. However, there was numbertime limit for Chancellor to take final decision in the matter. Notwithstanding this, the Chancellor exhibited undue haste and ensured that the numberifications appointing the particular candidates are issued in less than 24 hours of the receipt of the opinion of the Chief Minister. It is a matter of serious companycern that candidates facing criminal prosecution have been appointed as Vice-Chancellors Pro Vice-Chancellors. In the premise aforesaid, we are companyvinced that it is a fit case in which an interim order should be passed by the Court. Accordingly, the operation of numberifications dated 9.2.2013 and 19.2.2013 issued by the Governor-cum-Chancellor, Bihar appointing the private respondents as Vice-Chancellors and Pro Vice-Chancellors of different Universities is stayed and they are restrained from functioning as Vice Chancellors and Chancellors of the companycerned Universities. With a view to ensure that functioning of the various Universities is number jeopardized, we direct that as a purely stop gap arrangement, the senior most Deans in the Universities shall discharge the function of the Vice-Chancellors and Pro Vice-Chancellors. It shall be the duty of the petitioners to serve the remaining respondents well before 16.04.2013. A companyy of this order be sent to the Secretary to the Governor of Bihar by fax. He shall ensure that the entire record relating to the selection of Vice-Chancellors and Pro Vice-Chancellors be sent to this Court in sealed envelopes through a messenger and deposited with the Secretary General of this Court on or before 10.04.2013. Copies of this order be also sent to the Registrars of all the Universities by fax. They should place the order before the senior most Dean in the companycerned University so as to enable him to discharge the function of Vice-Chancellor till the next date of hearing i.e. 16.4.2013. In companypliance of the direction given by the Court, Shri Sudhir Srivastava, Special Secretary to the Governor-cum-Chancellor sent the relevant file in a sealed envelope along with letter dated 27.3.2013. The sealed companyer was opened in the Court and the papers companytained in the file were perused. Subsequently, the file was made available to the learned companynsel for the parties for their perusal and all of them availed the opportunity. The companynsel representing State of Bihar also produced File No.15/M 1-02/12 part , Computer No.7058/13 maintained by the Education Department of the State. A careful scrutiny of these files reveal the following facts The order passed by the Division Bench of the High Court was placed before the Governor-cum-Chancellor on 12.12.2012. ii. On 5.1.2013, the Governor-cum-Chancellor passed an order proposing appointments of Prof. Dr. Bimal Kumar, Dr. Prof. Arun Kumar, Dr. Ram Vinod Sinha, Dr. Kumaresh Prasad Singh, Dr. Sheo Shankar Singh, Dr. Samrendra Pratap Singh, Dr. Tapan Kumar Shandilya as Vice Chancellors and Dr. Ramayan Prasad, Dr. Birendra Kumar Singh, Dr. Dharma Nand Mishra, Dr. Sultana Khushood Jabeen, Prof. Dr. Shailendra Kumar Singh, Dr. Padmasha Jha, Dr. Anwar Imam, Prof. Dr. Chakradhar Prasad Singh and Prof. Dr. Raja Ram Prasad as Pro Vice Chancellors. On the same day, Special Secretary to the Governor sent letter No. 2C GS GB dated 5.1.2013 to the Principal Secretary to the Chief Minister, Bihar companyveying the Chancellors proposal to appoint the persons whose names were mentioned in Annexure-A and Annexure-B attached to the letter as Vice-Chancellors and Pro Vice- Chancellors of different Universities. The details companytained in the two charts are quite significant and, therefore, the same are reproduced below ANNEXURE A Sl.No.Names Qualification Experience Posts held Remarks Prof. Dr Bimal M.A. English , Principal and Registrar Comprehensively Kumar Ph.D. Commissioned and at presentconsidered most suitable. Vice Chancellor, BRA Bihar Not a word as to his her University, Muzaffarpur. qualification, eligibility Additional charge Vice suitability in the Chancellor, TM Bhagalpur judgement. University, Bhagalpur Dr. Prof. Arun M.A. Economics ,University Professor, PG Comprehensively Kumar Ph.D. Deptt. Of Economics, companysidered most suitable. Principal, MM College, Not a word as to his her Vikram and at present Vice qualification, eligibility Chancellor, BN Mandal suitability in the University Madhepura. judgement. Additioal charge Vice Chancellor, Magadh University, Bodh Gaya and Nalanda Open University, Patna. 3 Dr. Ram Binod SinhaM.A. Ph.D. Professor HoD, Deptt. of Comprehensively Hindi and at present Vice companysidered most suitable. Chancellor, JP University, Not a word as to his her Chapra qualification, eligibility suitability in the judgement. Dr. Arvind Kumar MA Ancient IndiaReader, Principal Comprehensively companysidered Pandey and Asian Commissioned and at most suitable. Not a word Studies, M.A. present Vice Chancellor, KSDas to his her History , Sanskrit University, qualification, eligibility Acharya MA in Darbhanga suitability in the Sanskrit Sahitya judgement. L.B., Ph.D Prof Dr Md. M.A. Arabic , Professor Head Deptt of Comprehensively companysidered Shamsuzzoha Ph.D. in Arabic, Patna University, most suitable. Not a word Humanities Patna and at present Vice as to his her Arabic Chancellor, MMH Arabic qualification, eligibility Persian University, Patna suitability in the judgement. Prof. Shambhu Nath PG Diploma in Director and Professor, Comprehensively companysidered Singh Journalism, Ph.D.IGNOU and at present Vice most suitable. Not a word Mass Chancellor, Patna as to his her Communication University, Patna qualification, eligibility suitability in the judgement. 7 Dr. Kumaresh PrasadM.A. Ph.D., LL.B.Reader, Professor and Comprehensively Singh Registrar Commissioned andconsidered most suitable. at present Incharge Vice Not a word as to his her Chancellor, V.K.S. qualification, eligibility University, Ara suitability in the judgement. 8 Dr. Anjani Kr. M.Sc. Ph.D. Professor Head, Deptt of Comprehensively Sinha Botany, BN Mandal companysidered most suitable. University, Madhepura Not a word as to his her qualification, eligibility suitability in the judgement. 9 Dr. Sheo Shankar M.A. Economics ,Principal, Maharaja College,Considered duly qualified Singh Ph.D. Ara VKS University, Ara and best suitable for the job 10 Dr. Samrendra M.B.B.S., M.D., Principal Retd , DMCH, Considered duly qualified Pratap Singh Ph.D. Darbhanga and at present, and best suitable for the Vice Chancellor, L.N. job Mithila University, Darbhanga 11 Dr. Tapan Kumar M.A. Economics ,Assistant Professor, Considered duly qualified Shandilya Ph.D. Principal, RLS College, and best suitable for the Manjhaul and at present Pro job Vice Chancellor, TM Bhagalpur University, Bhagarlpur ANNEXURE B Sl.No.Names Qualification Experience Posts held Remarks Dr. Ramayan Prasad M.A., Ph.D. HoD, Labour Social Considered best suitable Welfare, College of for the job. Commerce, Patna Dr. Birendra Kumar M.A. Ph.D. Associate Professor, Considered best suitable Singh University Deptt. of for the job. History, BRA Bihar University, Muzaffarpur 3 Dr. Dharma Nand M.A., M.Com., Dean, Faculty of Law, MagadhConsidered best suitable Mishra LL.B., Ph.D. University, Bodhgaya and for the job. Principal, Nawada Law College, Nawada 4 Dr. Sultana M.A. Urdu , Reader and HoD, Urdu and Considered best suitable Khushood Jabeen Ph.D. PU Persian, VKS University, Arafor the job. and former Pro Vice Chancellor, M.M.H. Arabic Persian University, Patna 5 Prof. Dr. M.A., Ph.D. Principal, College of Considered best suitable Shailendra Kumar Commerce, Patna University for the job. Singh and presently Registrar, Nalanda Open University, Patna 6 Dr. Padmasha Jha M.A., Ph.D. University Professor HistoryConsidered best suitable Retd , Former Pro Vice for the job. Chancellor, BRA Bihar University, Muzaffarpur and former Incharge Vice Chancellor, LNMU, Darbhanga 7 Dr. Anwar Imam M.A. Presently Controller of Considered best suitable Economics , Examination, VKSU, Ara for the job. Ed. and Ph.D. 8 Prof. Dr. M.A., Ph.D. University Prof. HoD of PGConsidered best suitable Chakradhar Prasad in English, Magadh for the job. Singh University, Bodh Gaya. Dean, Faculty of Humanities, MU, Bodh Gaya. 9 Prof. Dr. Raja RamM.A., Ph.D. University Professor HoD Most OBC Candidate. Prasad Maithili of Maithili, B.N.M.U., Considered best suitable Madhepura. Dean of for the job. Humanities, B.N.M.U., Madhepura iii. The Principal Secretary to the Chief Minister forwarded the aforesaid letter to the Principal Secretary, Education Department, who recorded detailed numbere dated 12.1.2013. In the first place, he observed that the details of the persons mentioned in the charts were too brief and even this had number been indicated as to which candidate was proposed for the particular University. He then opined that the State Government may move the Supreme Court with the prayer for companystitution of a Search Committee of experts to prepare a panel of eminent persons for the purpose of appointment of Chancellors and Vice-Chancellors. The numbere of the Principal Secretary, Education was approved by the Education Minister, the Principal Secretary to the Chief Minister and the Chief Minister. Thereafter, the Principal Secretary to the Chief Minister sent companymunication dated 21.1.2013 to the Special Secretary to the Governor, the relevant portions of which read as under To, Shri Sudhir Shrivastava, Special Secretary, Governor Secretariat, Governor House, Patna. Patna, dated 21 January, 2013. Sub Appointment of Vice Chancellors and Pro- Vice Chancellors. Sir, With reference to your letter number 20/GS GB dated 5.1.2013, it seems necessary to raise some of the required and essential points to enable the Government to render its opinion for meaningful and effective Consultation with the Chancellor of the universities of State of Bihar. In companypliance of the Honble High Court order in the CWJC No. 10569 of 2011, the envisaged Consultation process has to be meaningful and based on substantive material. The order clearly mentions that the legislature has cast a duty upon the State Government to scrutinize the names proposed by the Chancellor for appointment of Vice-Chancellors and Pro-Vice Chancellors for their academic qualifications, experience, integrity and moral standards. It is to bring to your numberice that the list sent by you companytains only qualifications and experience and that too in a very brief and inadequate manner. There is numberrecord of their vigilance clearance or integrity and moral standards. Hence it is number possible for us to scrutinize the names as envisaged in the Honble High Court order. Further prima-facie, this is to point out that the proposed list companytains name of one such person who has the criminal proceedings pending against him i.e. SI. No. 4 of the proposed Vice Chancellors list. Please refer page number 16 of the Honble High Court order wherein it has been admitted by the advocate of the person referred above. The list also do number mention the name of the University against which proposed names are companytemplated for companysideration. In these circumstances it is nearly impossible to properly scrutinize the names and form an opinion for a valid companysultation as envisaged in the statutes and Honble High Courts order. You are therefore requested to kindly arrange for the required information with details in your possession so that an effective companysultation takes place between the companysulting parties. emphasis supplied iv. The Secretary to the Governor then sent letter dated 28.1.2013 to the Principal Secretary to the Chief Minister and asked him to forward substantive and credible materials as to the integrity and moral standards of the persons named in letter dated 5.1.2013. It was also mentioned in the letter that record of judicial companyviction, instead of merely criminal proceedings pending against the person named at serial number4 in the list, may be sent for companysideration of the Chancellor. The letter of the Secretary to the Governor was sent by the Chief Ministers Secretariat to the Principal Secretary, Education, who wrote O.No.29/C/2013 dated 1.2.2013 to the Principal Secretary Vigilance Department with the request to provide update on vigilance matters with regard to the candidates. The Vigilance Department got companyducted the necessary enquiries and submitted the required information to the Principle Secretary, Education. vi. In the meanwhile, the Principal Secretary to the Chief Minister sent letter to the Special Secretary to the Governor pointing out that the matter has been referred to the Vigilance Department and the information is likely to become available in a few days. That letter reads as under Government of Bihar Chief Minister Secretariat Letter No.4610032/CMS 4 February 2013 From, Secretary to the Chief Minister, Government of Bihar, Patna. To, The Special Secretary, Governors Secretariat, Raj Bhawan, Patna. Subject Appointment of Vice Chancellors and Pro Vice Chancellors Reference Your letter number 63, dated 28th January 2013. Sir, This has reference to letter number 144/PSC CMS dated 21 January, 2013 and your letter number 63/GS l GB dated 28 January, 2013. In letter dated 21st January, 2013 it was categorically mentioned that for valid, effective and meaningful companysultation in regard to appointment of Vice-Chancellor Pro Vice Chancellor in the State Universities it would be essential to have full and companyplete input in possession of Honble Chancellor. A list companytaining names of prospective candidates has been forwarded by you. However, very sketchy information in regard to each of the candidates has been made available. No information regarding which of the candidate is proposed for appointment to which University has been provided. It is to be numbered that the list of name has been finalized by the Honble Chancellor and therefore it has to be presumed that he is in possession of all relevant materials, such as document in support of eligibility qualification, experience, moral character integrity. Appointment in each University is an independent decision which has to be preceded by effective and meaningful companysultation. In the absence of requisite materials, any exercise would appear as mere formality. As ordained by Honble Courts order, the State Government is required to give it opinion. As the names have been short listed by Honble Chancellor, it is companysidered imperative that State Government before tendering opinion should have full materials with specific detail as to which candidate is being companysidered for which University. However, instead of responding to the Governments request, you have asked us to make available substantive and credible materials as to integrity and moral standards of persons included in the list. You have also mentioned to make available pending proceeding against the person at SI. No. 4. Vice Chancellor Pro Vice-Chancellor of University is expected to possess basic eligibility as prescribed by the Universities Grants Commission. Besides, the candidate is required to have credible experience of a high position and should be perceived to have good reputation. Serious allegation of misconduct as holder of the post for any omission or companymission being investigated by State Vigilance Police is sufficient reason number to recommend such a person. Since the State Government has number been provided the grounds on which the candidates have been recommended or at least the due diligence that was undertaken before suggesting the names, it is impossible for the State Government to engage in a meaningful companysultation. The State Government has requested the Vigilance Department for information based on simply the names of the candidates recommended, without any other information or bio data. It is likely that such information will be available in a few days. The orders of the Honble Court have been absolutely clear regarding the companysultation process. Any hasty decision without companyforming to the basic framework for companysultation as outlined by the Honble Court, will amount to a companytravention of the Courts orders. The State Government would like to request that appointments should only be made after the process of companysultation, as outlined in the Courts orders, are fully companyplied with. emphasis supplied vii. On 8.2.2013, the Special Secretary to the Governor-cum-Chancellor recorded a numbere, which reads as under As per order of the Honble Chancellor dated 05.01.2013, a list of names for appointment as Vice Chancellors and Pro-Vice Chancellors was sent to the Principal Secretary to Chief Minister vide this Secretariat letter No.20/GS GB dated 5th January, 2013. The Principal Secretary to Chief Minister, Bihar vide his letter No. 144/PSC CMS dated 21 January, 2013 sought some clarifications against one person named in the list. Thereafter, as directed by H.E. a reply was sent to the Principal Secretary to Chief Minister vide this Secretariat letter No.63 GS GB dated 28 January, 2013 companyveying him that in case he is in possession of substantive and credible materials as to integrity and moral standards of the persons named in the list, he was requested to forward the same to this Secretariat. It was also mentioned that similarly, if he has any record of judicial companyviction, instead of merely criminal proceedings pending, against person in serial No. 4 in the list, he was also requested to send it for companysideration of the Honble Chancellor. In response to our letter dated 28 January, 2013, the Secretary to Chief Minister, Bihar has sent his reply vide his letter No. 4610032/CMS dated 4th February, 2013 that State Govt. has requested the Vigilance Department for information regarding candidates proposed. Today is 8/2/2013 and the State Government has number given any specific objection or opinion against the individual persons named in the list proposed by the Honble Chancellor on 5/1/2013 to the State Government. E. to take decision please. viii. On the same day, the Governor-cum-Chancellor recorded the following numbere As discussed with you, please prepare draft Notifications for appointment of VCs and Pro VCs as per relevant provisions of the Acts and in companysonance with ratio decidendi ratiocination of the High Court judgment for immediate issuance. The Governor-cum-Chancellor also approved the draft format of the numberifications to be issued for appointing Vice-Chancellors and Pro Vice- Chancellors and directed that the same be issued when ordered by him. Below that numbere the Special Secretary recorded the following Notification formats ready. H.E. may like to indicate names of VCs and date of issue of numberifications. ix. On the next day, i.e., 9.2.2013, Governor-cum-Chancellor recorded the following numbering Notifications in the approved format appointing the following persons as Vice-Chancellors may be issued on 9th February, 2013, at the Universities shown against their names. The order is to take immediate effect. Name of VC University Prof Shambhu Nath Patna University, Patna. Singh, interim Vice-Chancellor, Patna University, Patna Prof. Dr. MMH Arabic and Persian Md.Shamsusuzzha, University, Patna. interim Vice-Chancellor, MMH Arabic and Persian University, Patna Prof. Dr. Arun Magadh University, Bodh Kumar, interim Gaya. Vice-Chancellor, N.Mandal University, Madhepura Prof. Dr. Bimal J.P. University, Chapra. Kumar, interim Vice-Chancellor, BRA Bihar University, Muzaffarpur Dr. Ram Binod Sinha,B.N. Mandal University, interim Madhepura. Vice-Chancellor, P. University, Chapra Dr. Sheo Shankar V.K.S. University, Ara. Singh, Principal, Maharaja College, Ara Dr. Kumaresh Prasad BRA Bihar University, Singh, In-Charge Muzzaffarpur. Vice-Chancellor, K.S. University, Ara Dr. Arvind Kumar KSD Sanskrit University, Pandey, interim Darbhanga. Vice-Chancellor, KSD Sanskrit University, Darbhanga Thereafter, the Special Secretary to Governor-cum-Chancellor made a recording that all the eight numberifications have been sent to the companycerned Universities by fax. On 9.2.2013, the Principal Secretary to the Chief Minister, Bihar sent a report received from the Education Department, which got companyducted enquiry through the Vigilance Department, to the Special Secretary to the Governor. The relevant portions of that report are as under In the category of Vice-Chancellors Prof. Dr. Bimal Kumar Vigilance Department of the State Government is enquiring charges against him regarding financial irregularities, appointment of lecturers illegally and companyrupt misuse of post when he was posted as Registrar, Magadh University. Complaint Case No. 13/12. 14/12 and 35/12 have been filed against Dr. Bimal Kumar in the Special Vigilance Court, Muzaffarpur and the same has been forwarded to the Vigilance Investigation Bureau for further enquiry. These relate to financial irregularity. The Vidhan Parishad has also discussed a Call Attention Motion regarding financial irregularity and companyruption against Dr. Bimal Kumar which has been referred by the Education Department to the Vigilance Department for enquiry. From Bhagalpur also charges regarding companyruption in Bhagalpur University against Dr. Bimal Kumar has been leveled which is currently under enquiry in the Vigilance Department. As per information from Sr. S.P., Muzaffarpur charge sheet has been filed in University Police Station Case No. 21/11 dated 24.9.11 under Section 341/342/506/509/386/834 of IPC and 3 x SC ST Act. These clearly indicate that the moral character and the integrity of Dr. Bimal Kumar is number good enough to be companysidered for appointment as the Vice Chancellor and enquiries and investigations are currently going on in the Vigilance Department. Dr. Prof. Arun Kumar Complaint has been received by the Vigilance Department against Prof. Kumar regarding irregularies in evaluation of answer books, irregular financial drawal, illegal gratification from companytractors and having investment beyond his known source of income. The Vigilance Department is currently enquiring into these. These charges are of financial nature and clearly shows that his appointment as the Vice Chancellor will number be in the interest of good goverance in the University. Dr. Ram Binod Sinha Charges have been leveled in the Bihar Vidhan Parishad in Nivedan No. 278/12 regarding number following reservation rule in recruitment, irregular drawal in the name of medical bill, illegal payment for companyrt cases etc. As per information available in the Education Department his age does number make him eligible to become a Vice Chancellor under the regulation of University Grants Commission. Dr. Arvind Kumar Pandey As per information available from Sr. S.P. Darbhanga Case No. 126/10 dated 29.6.10 under Section 420/409/467/468/471/197/218/120 B IPC and Sections 13/14 of Prevention of Corruption Act and Case No. 150/10 dated 23.8.10 under Sections 420/409/467/488/471/120 B of IPV have been registered and are currently under investigation. As per information available from Sr. S.P. Gaya, Case against Dr. Arvind Kumar Pandey have been filed in Bodh Gaya Police Station Case No.135/10 dated 30.6.2010 under Sections 197/208/409/420/468 and 120 B of IPC and the same is under investigation. Snaskrit Chetna Parishad has made serious charges of financial irregularieis against Dr. Pandey which has been sent to the Governor Secretariat as well. The Governor Secretariat vide letter number 3950 dated 1.10.2007 forwarded companyplaint against Dr. Pandey to Vigilance Department for further enquiry. The charge against him at that time was that in the year 2006 he took money from students for awarding Shastri and Upshastri. The Governor Secretariat vide letter number 916 dated 9.6.2003 forwarded other companyplaint against Dr. Pandey to the Vigilance Department for further enquiry. Based on the details mentioned above Dr. Pandey should number be companysidered for appointment as Vice Chancellor as he lacks moral character and integrity. Details regarding his educational qualification also need to be examined very carefully whether he has basic qualification for appointment to the post of Vice- Chancellor as per the regulation of U.G.C. Prof. Shambhu Nath Singh As per information available companyplaint against him has been forwarded by the Education Department to the Vigilance Department for enquiry. A companyplaint case number 43/12 has been filed against Prof. Singh in the Vigilance Court, Patna and the same has been forwarded to the Vigilance Investigation Bureau for further enquiry. These pertain to financial irregularity which include irregular drawal of TA DA, unnecessary expenditure on legal case etc. The audit companyducted by the Principal Accountant General has also pointed out major financial irregularities in the Patna University some of which directly at the level of the Vice Chancellor. Audit report of the Pr. Accountant General was sent to the Vice Chancellor, Patna University for companymends and companyments received was sent against to the Pr. Accountant General for his response to the companyments. Report has been received from the Pr. Accountant General where they have number accepted the explanation in a few serious financial irregularities pointed out by the audit. These reports have also been forwarded to the Vigilance Department for thorough enquiry and appropriate action. Beside these many other companyplaints have been received from time to time against Sri Singh including the issue whether his qualifications are good enough to be appointed as Vice Chancellor under Patna University Act. The Department of Education has forwarded serious companyplaints and Pr. Accountant Generals final report to the Vigilance Department and also to the Governor Secretariat for necessary action. Based on the facts mentioned above Dr. Singh is number fit to be appointed as Vice Chancellor. Dr. Sheo Shankar Singh Complaints have been received from one Sri Ramashankar Yadav, Vill. Jaitpur, P.O. Asani, P.S. Udwantnagar, Bhojpur regarding financial irregularity against Sri Singh. These have to be further enquired into. Without further details about his academic qualifications, quality to publications and experience it is difficult to suggest Dr. Singhs name as appointment of Vice-Chancellor. In the category of Pro Vice-Chancellors Dr. Padmasha Jha As per information available from Sr. S.P. Muzaffarpur charge sheet has been submitted against her in case number 10/11 dated 23.5.11 under Sections 342/341/323/504/507 of IPC on 30.06.2011. Charge sheet has also been submitted against her in case number. 21/11 dated 24.9.2011 under sections 341/342/506/504/386/34 and under section 3 x under SC ST Act. In the light of these she is number suited for appointment as pro Vice-Chancellor. Prof. Dr. Raja Ram Prasad While numbercomplaint has been received more detail regarding educational qualification, quality of publications and work experience is required before companymending on the candidature. As the brief summary above will clearly indicate investigations and enquiry are currently going on against a number of candidates whose names have been forwarded. In many cases details of educational qualification, quality of publications and work experience etc. have number been forwarded. In the circumstances it is companysidered view of the State Govt. That a Search Committee as suggested in para-1 should be companystituted immediately for short listing candidates for the post of Vice Chancellor and Pro-Vice Chancellor and appointment by the Chancellor should only be made from the list of short listed candidates. The letter sent by the Principal Secretary is said to have been received in the Governors Secretariat on 12.2.2013 xi. On 13.2.2013, the Principal Secretary to Governor-cum-Chancellor recorded the following numbere The Principal Secretary to Chief Minister, Bihar, Patna vide letter No.4610034/2013 dated 09/02/2013 72-78/C alongwith the Education Deptt summary individual report about the persons whose names were proposed for the appointment of Vice- Chancellors and Pro-Vice-Chancellors in Annexure-A and Annexure- B, received in this Secretariat on 12/02/2013, may kindly be perused. In this companynection, it is submitted that on the orders of Honble Chancellor dated 09/02/2013, numberifications with regard to appointment of 8 eight Vice-Chancellors for different Universities have already been issued and companymunicated to them on 09/02/2013 and the incumbents have already joined their numberified posts and sent their joining report to this Secretariat which are placed on the filed. xii. On 19.2.2013, Governor-cum-Chancellor recorded the following order Secretary Pl issue Notifications, in companytinuation to my order dated 09/02/2013, today itself appointing Dr. Tapan Kumar Shandilya, as V.C. of Nalanda Open University, Patna, with immediate effect. Also issue Notifications appointing the following persons as Pro-Vice-Chancellors in the Universities shown against their names Dr. Ramayan Prasad Magadh University, Bodh Gaya. Dr. Birendra Kumar KSD Sanskrit University, Singh Darbhanga. Dr. Dharma Nand B.N. Mandal University, Mishra Madhepura. Dr. Sultana KhushoodMMH Arabic and Persian Jabeen University, Patna. Prof. Dr. J.P. University, Chapra. Shailendra Kumar Singh Dr. Anwar Imam VKS University, Ara. Pl issue another Notification appointing temporarily Dr. Arun Kumar, V.C., Magadh University, to assume and hold charge of the office of Vice-Chancellor, T.M. Bhagalpur University, and perform all its duties and functions in addition to his own existing duties as V.C. of M.U. with immediate effect and until the appointment of a regular Vice-Chancellor of T.M. Bhagalpur University within a short span of time. Thereupon, the Special Secretary companymunicated the orders to the companycerned Universities. xiii. After about one month, the Governor-cum-Vice-Chancellor issued order dated 14.3.2013 for appointment of Dr. Anjani Kumar Sinha, Prof. and HOD of Botany Deptt. B.N. Mandal University, Madhepura, as the Vice-Chancellor of M. Bhagalpur University, Bhagalpur, with immediate effect. He also directed that two numberifications may be issued appointing Prof. Dr. Raja Ram Prasad, Prof. and HOD of Maithili Deptt., B.N. Mandal University, Madhepura, as Pro-Vice-Chancellor of Patna University, Patna, and Dr. Padmasha Jha, ex-Pro-Vice-Chancellor of L.N. Mithila University, Darbhanga, as Pro-Vice-Chancellor of B.R.A. Bihar University, Muzaffarpur, with immediate effect. Dr. Ram Tawakya Singh challenged the appointments made by the Chancellor in C.W.J.C. No.15123 of 2011, which as mentioned hereinabove, was allowed by the Division Bench of the High Court and directions were given for making the appointments of Vice Chancellors and Pro Vice Chancellors afresh. Shri Harish N. Salve, learned senior companynsel appearing for the State and Shri Prashant Bhushan, learned companynsel appearing for Dr. Ram Tawakya Singh referred to the provisions of the BSU Act and PU Act as also the regulations framed by the University Grants Commission UGC under Section 26 of the University Grants Commission Act, 1956 for selection of Pro Vice- Chancellors Vice-Chancellors and argued that the direction given by the Division Bench of the High Court to the Chancellor to propose names for appointment of Vice-Chancellors and Pro Vice-Chancellors is liable to be set aside and the appointments made by him are liable to be quashed because by taking advantage of the direction companytained in the impugned order, the Chancellor arbitrarily prepared the list of the persons to be appointed as Vice-Chancellors and Pro Vice-Chancellors without making any selection whatsoever and without following any transparent method for making a choice from amongst the persons of academic excellence, unquestionable integrity and institutional companymitment and without effectively companysulting the State Government. Both, Shri Salve and Shri Prashant Bhushan emphasised that the Chancellor did number even try to find out whether persons of academic excellence are available in the companyntry and prepared the list which included some persons against whom criminal cases are registered with the police and or are pending in the Court s . Learned companynsel relied upon UGC regulations dated 30.6.2010 and argued that even though the BSU Act and the PU Act were number suitably amended for incorporating the regulations, the Chancellor was duty bound to keep in mind the parameters laid down by the UGC for selecting the candidates for appointment as Vice-Chancellors and Pro Vice-Chancellors and prepared list of eligible persons having highest level of companypetence, integrity, morals and institutional companymitment and this companyld have been possible only if he had made a holistic selection by extending zone of selection beyond the frontiers of the State. Learned companynsel submitted that instead of making a fair selection, the Chancellor manipulated re-appointment of those who were ousted by virtue of the High Courts order. Shri Prashant Bhushan submitted that the Chancellor had shown his scant respect to the law laid down by the learned Single Judge and the Division Bench of the High Court and made appointments without effective companysultation with the State Government. He submitted that the haste with which the Chancellor ensured the issue of Notifications dated 9.2.2013 is a proof of the oblique motive with which he pushed the appointments of even those who are facing trial for criminal offences. Shri Salve submitted that after having learnt about the vigilance inquiries being companyducted into the antecedents of the candidates proposed by him, the Chancellor should have waited for the vigilance reports and then only he companyld have made appointments. Shri Ram Jethmalani, Shri Anil B.Divan, senior advocates and other learned companynsel appearing for the private respondents defended the appointments of their clients and argued that the methodology adopted by the Chancellor cannot be dubbed as arbitrary because he had companysulted the State Government before ordering the issue of Notifications dated 9.2.2013. Learned senior companynsel submitted that the UGC regulations cannot be invoked for quashing the appointments of the private respondents because the State legislature has number engrafted the same in the BSU Act and the PU Act by making appropriate amendments. Shri Jethmalani argued that the regulations framed by the UGC are in the nature of subordinate legislation and they cannot override the plenary legislation, i.e., the State Acts. In support of this argument, he relied upon judgments of this Court in State of U.P. Manbodhan Lal Srivastava AIR 1957 SC 912 and Prem Chand Garg v. Excise Commissioner AIR 1963 SC 996. Learned senior companynsel also relied upon the judgment of this Court in Kishore Samrite v. State of U.P. 2013 2 SCC 398 and argued that Dr. Ram Tawakya Singh does number have the locus standi to challenge the appointments of Vice-Chancellors and Pro Vice-Chancellors because he was number a companypetitor for any of the posts. Shri Jethmalani and Shri Divan submitted that the appeal filed by the State and its functionaries should be dismissed because they number only waited till the issue of numberifications for fresh appointments but also made misleading statement about the so called delay on the Governors part in approving the amendments made by the State legislature purporting to incorporate the UGC regulations. Shri Anil Divan strongly criticised the State Government for deliberately number amending the relevant enactments to bring them in tune with the UGC regulations and submitted that the Governor cannot be blamed for number approving the Bill passed by the legislature because companyposition of the Search Committee proposed in the amendment made by the State legislature was loaded with bureaucrats, who would have never allowed others to play their role in selecting suitable persons and this would have effectively frustrated the object of appointing Vice-Chancellors and Pro Vice-Chancellors from amongst distinguished academicians. Learned companynsel pointed out that majority of the appointees are having excellent academic record and vast experience of teaching in different Universities Colleges and argued that their appointment should number be quashed simply because some of the candidates are facing prosecution. In the end, Shri Anil Divan submitted that even if this Court companyes to the companyclusion that the appointments made by the Chancellor are companytrary to the scheme of the BSU Act and the PU Act, the private respondents who have clean record should be allowed to hold the posts and discharge the functions of Vice-Chancellors and Pro Vice-Chancellors till fresh appointments are made so that their image and integrity may number be adversely affected. We have companysidered the respective arguments submissions. For deciding the main question arising in the appeals and the writ petition it will be useful to numberice the relevant statutory provisions. The same are as under BSU Act The Vice-Chancellor. 1 No person shall be deemed to be qualified to hold the office of Vice-Chancellor unless such person is, in the opinion of the Chancellor, reputed for his scholarship and academic interest, and numberperson shall be deemed to be qualified to hold the office of the Vice-Chancellor of the Kameshwar Singh Darbhanga Sanskrit University unless such person is, in the opinion of the Chancellor, reputed for his scholarship in Sanskrit or has made numberable companytribution to Sanskrit education. The Vice-Chancellor shall be appointed by the Chancellor in companysultation with the State Government. 3 a The Vice-Chancellor shall be wholetime officer and shall hold office during the pleasure of the Chancellor. Subject to the foregoing provisions of this section the Vice-Chancellor shall ordinarily hold office for a term of three years and on the expiry of the said term he may be reappointed by the Chancellor in companysultation with the State Government and he shall hold office at the pleasure of the Chancellor for a term number exceeding three years. The Vice-Chancellor shall be the principal executive and academic officer of the University, the Chairman of the Syndicate and of the Academic Council and shall be entitled to be present and speak at any meeting of any authority or other body of the University and shall in the absence of the Chancellor preside over meetings of the Senate and of any companyvocation of the University Provided that the Vice-Chancellor shall number vote in the first instance but shall have and exercise a casting vote in the case of an equality of votes. The Vice-Chancellor shall subject to the provisions of this Act, the Statutes and the Ordinances have power to make appointment to posts within the sanctioned grades and scales of pay and within the sanctioned strength of the ministerial staff and other servants of the University number being teachers and officers of the University and have companytrol and full disciplinary powers over such staff and servants. 7 The Vice-Chancellor shall have the powers to visit and inspect the Colleges and buildings, laboratories, workshops and equipments thereof and any other institution associated with the University, and he shall have the right of making an inquiry or causing an inquiry to be made, in like manner in respect of any matter companynected with such Colleges and institutions. The Vice-Chancellor shall address the Principal of such College with reference to the result of such inspection or inquiry and, thereupon, it shall be the duty of such Principal to companymunicate the views of the Vice-Chancellor to the governing body of the College and to report to the Vice-Chancellor such action, if any, taken or proposed to be taken upon the result of such inspection or inquiry. It shall be lawful for the Vice-Chancellor to issue, from time to time, any direction to the Principal of a College in which post-graduate teaching companyducted under clause 16 of section 4 and such Principal shall companyply with all such directions accordingly. The Vice-Chancellor shall exercise general companytrol over the educational arrangement of University and shall be responsible for the discipline of the University. It shall be lawful for the Vice-Chancellor to take all steps which are necessary for maintaining the academic standard and administrative discipline of the University. If at any time, except when the Syndicate or the Academic Council is in session, the Vice-Chancellor is satisfied that an emergency has arisen requiring him to take such immediate action involving the exercise of any power vested in the Syndicate or Academic Council by or under this Act, the Vice-Chancellor shall take such action as he deems fit, and shall report the action taken by him to such authority which may either companyfirm the action so taken or disapprove of it. It shall be the duty of the Vice-Chancellor to see whether the proceeding of the University are carried on in accordance with the provisions of this Act, the Statutes, the Ordinance, the Regulations and the Rules or number and the Vice-Chancellor shall report to the Chancellor every proceeding which is number in companyformity with such provisions. For so long as the orders of the Chancellor are number received on the report of the Vice-Chancellor that the providing of the University is number in accordance with this Act, the Statutes, the Ordinance, the Regulation and the Rules, the Vice-Chancellor shall have the powers to stay the proceeding reported against. 14 Illustrationequivalent post means Reader and Principal in the pay-scale of Reader, Professor and Principal in the payscale or Professor. The Vice-Chancellor shall exercise such other powers and perform such other duties as are companyferred or imposed on him by this Act, the Statutes, the Regulations or the Rules. The Vice-Chancellor shall have overall responsibility in maintaining good academic standard and promoting the efficiency and good order of the University. Save as otherwise provided in the Act, or the Statutes the Vice-Chancellor shall appoint officer other than the Pro-Vice- Chancellor with the approval of the Chancellor, and teachers and shall define their duties The Vice-Chancellor shall have the power to take disciplinary action against all employees of the University including officers and teachers of the University An appeal shall lie to the Chancellor against the order of the Vice-Chancellor imposing the penalty of dismissal, removal from service or reduction in rank. Pro-Vice-Chancellor- 1 The Chancellor shall appoint the Pro- Vice-Chancellor, in companysultation with the State Government. The Pro-Vice-Chancellor shall be a whole-time officer of the University. He shall hold office, on such companyditions as may be determined, by the Chancellor, in companysultation with the State Government, for a period number exceeding three years during the pleasure of the Chancellor. Where the person appointed as Pro-Vice-Chancellor gets pension from the Central or the State Government or any University or from any other source, the amount of pension due to him from such source shall be deemed to be the part of his salary as Pro-Vice-Chancellor. Subject to the provisions of this Act, the Pro-Vice- Chancellor shall exercise such powers and perform such duties as may be prescribed or as may be companyferred or imposed on him, from time to time, by the Vice-Chancellor. The Pro-Vice-Chancellor shall be responsible for admission and companyduct of the examination up to Bachelor companyrse and the publication of the result of the examination companyducted by the University up to Bachelor companyrse and shall be responsible for student welfare. PU Act The Vice-Chancellor. 1 No person shall be deemed to be qualified to hold the office of the Vice-Chancellor, unless heis an educationist having experience of administering the affairs of any University of India for number less than six years, or is or has been Principal or Head of the Department of any University or College, and has a teaching experience of number less than 10 years in the University or in any other University or in any companylege. The Vice-Chancellor shall be appointed by Chancellor, in companysultation with the State Government from amongst persons having qualification as mentioned in sub-section 1 and he shall hold office during the pleasure of the Chancellor. The Vice-Chancellor shall be whole-time officer and shall hold office for a period of three years with effect from the date on which he assumed charge. On the expiry of the said period, he may be re-appointed for another term number exceeding three years. 4 i Other terms and companyditions of his appointment shall be determined by the Chancellor in companysultation with the State Government. Where the person appointed as Vice-Chancellor gets pension from the Central or the State Government or any University or from any other source, the amount of pension due to him from such source shall be deemed to be the part of his salary as Vice- Chancellor. The Vice-Chancellor shall be the principal executive and academic officer of the University, Chairman of the Syndicate and of the Academic Council, and shall be entitled to be present and speak at any meeting of any authority or other body of the University and shall, in the absence of the Chancellor, preside at meetings of the Senate and any companyvocation of the University Provided that the Vice-Chancellor shall number vote in the first instance, but shall have and exercise a casting vote in the case of an equality of votes. The Vice-Chancellor shall, subject to the provisions of this Act, the Statutes and the Ordinances, made thereunder, have power to make appointment to posts within the sanctioned grades and scales of pay and within the sanctioned strength of the ministerial staff and other servant of the University, number being teachers and officers of the University, and have companytrol and full disciplinary powers over such staff and servants. 7 The Chancellor shall have the right to visit and inspect the Colleges and building, laboratories, workshops, and equipments thereof and any other institutions associated with the University. The Vice-Chancellor shall carry out the orders of the Syndicate in respect of appointment, transfer, discharge or suspension of officers and teachers of the University, and shall exercise general companytrol over the educational arrangement of the University, and shall be responsible for the discipline of the University. If any time, except when the Syndicate or the Academic Council is in session, the Vice-Chancellor is satisfied that an emergency has arisen requiring him to take immediate action involving the exercise of any power vested in the Syndicate or the Academic Council by or under this Act, the Vice-Chancellor shall take such action as he deems fit, and shall report the action taken by him to such authority which may either companyfirm the action so taken or disapprove of it. Subject to the provision of this Act, it shall be the duty of the Vice-Chancellor to see whether the proceedings of the University are carried out in accordance with the provisions of this Act, the Statutes, the Ordinances, the Regulations and the Rules or number, and the Vice-Chancellor shall report to the Chancellor every such proceeding which is number in companyfirmity with such provisions. Till such time as the orders of the Chancellor are number received on the report of the Vice-Chancellor that the proceedings of the University is number in accordance with this Act, the Statutes, the Ordinances, the Regulation and the Rules, the I Vice-Chancellor shall have the powers to stay the proceeding reported against. 12 . The Vice-Chancellor shall exercise such other powers and perform such other duties as are companyferred or imposed on him by this Act, the Statutes, the Regulations or the Rules. The Vice-Chancellor shall have overall responsibility in maintaining good academic standard and promoting the efficiency and good order of the University. Save as otherwise provided in the Act, or the Statutes the Vice-Chancellor shall appoint officers other than the Pro-Vice- Chancellor with the approval of the Chancellor, and teachers and shall define their duties. The Vice-Chancellor shall have power to take disciplinary action against officers, teachers and all employees of the University. An appeal shall lie to the Chancellor against the order of the Vice-Chancellor imposing the penalty of dismissal, removal from service or reduction in rank. Most of the remaining provisions companytained in this section are identical to those companytained in Section 10 of the Bihar State Universities Act. Pro-Vice-Chancellor. 1 The Chancellor shall appoint the Pro-Vice Chancellor in companysultation with the State Government. The Pro-Vice-Chancellor shall be a whole time officer of the University. He shall hold office for a period number exceeding three years during the pleasure of the Chancellor on such companyditions as may be determined by the Chancellor in companysultation with the State Government. Where the person appointed as Pro-Vice-Chancellor gets pension from the Central or the State Government or any University or from any other source, the amount of pension due to him from such source shall be deemed to be the part of this salary as Pro-Vice-Chancellor. Subject to the provisions of this Act, the Pro-Chancellor shall exercise such powers and perform such duties as may be prescribed or as may be companyferred or imposed on him from time to time by the Vice-Chancellor. The Pro-Vice-Chancellor shall be responsible for admission and companyduct of examination up to Bachelor companyrse and the publication of the result of the examination companyducted by the University up to Bachelor Course and he shall be responsible for student welfare also. An analysis of the above quoted provisions makes it clear that the position of Vice-Chancellor is extremely important in every University established under the BSU Act and the PU Act. He is the heart and soul of the functional apparatus of the University. He is the principal executive and academic officer of the University, Chairman of the Syndicate and the Academic Council and is entitled, as of right, to remain present and speak in any meeting of any other authority body of the University. If the Chancellor is number available, the Vice-Chancellor is entitled to preside over the meetings of the Senate and Convocation of the University. He has the power to make appointments of ministerial staff and other servants of the University except the teachers and officers and exercise disciplinary companytrol over such staff and servants. The Vice-Chancellor is entitled to visit and inspect the Colleges and also make an inquiry or cause an inquiry to be made in respect of any matter companynected with such Colleges and institutions. He is required to inform the companycerned College about the result of inspection and or inquiry and also seek report about the action taken or proposed to be taken on the result of inspection or inquiry. The Vice-Chancellor is empowered to issue any direction to the Principal of a College in which post-graduate teaching is companyducted under Section 4 16 and the Principal is bound to companyply with such direction. The Vice- Chancellor is required to exercise general companytrol over the educational arrangement of the University and is responsible for the discipline of the University. He is also entitled to take all the steps necessary for maintaining the academic standard and administrative discipline of the University. In case of emergency, the Vice-Chancellor can exercise any power vested in the Syndicate or the Academic Council. The Vice-Chancellor is duty bound to ensure that the proceedings of the University are carried on in accordance with the provisions of the Act, the Statutes, the Ordinances, the Regulations and the Rules. He is to report to the Chancellor every proceeding which is number in companysonance with the provisions of the plenary as well as the delegated legislations. The Pro Vice-Chancellor is also a whole time officer of the University and is entitled to exercise such powers and perform such duties which may be prescribed or which may be companyferred or imposed on him by the Vice-Chancellor. He is responsible for admission and companyduct of examination up to Bachelor companyrse and also the student welfare. It is thus evident that the Vice-Chancellor and the Pro Vice- Chancellor are responsible for maintaining the academic standard and discipline of the University and also ensure that all the bodies and authorities companyduct themselves in companyformity with the statutory provisions. This is the precise reason why Section 10 1 of the BSU Act and Section 11 1 of the PU Act are companyched in negative form and prescribes the qualification of academic excellence as a companydition precedent for appointment as Vice-Chancellor. Section 10 1 of the BSU Act declares that numberperson shall be qualified to hold the office of Vice-Chancellor unless such person, in the opinion of the Chancellor, is reputed for scholarship and academic interest. In case of Kameshwar Singh Darbhanga Sanskrit University, the person must be reputed for his scholarship in Sanskrit or must have made numberable companytribution in the field of Sanskrit education. Section 11 1 of the PU Act declares that numberperson shall be deemed to be qualified to hold the office of the Vice-Chancellor unless he is an educationist having experience of administering affairs of any University of India for number less than six years or he is or has been Principal or Head of the Department of any University or College, and has teaching experience of number less than 10 years in any University or any College. Sub-section 2 of both the sections makes the companysultation with the State Government mandatory for appointment of the Vice-Chancellor. Similarly, Section 12 1 of the BSU Act and 14 1 of the PU Act makes companysultation with the State Government sine qua number for appointment of Pro Vice-Chancellor. The word companysultation used in Sections 10 2 and 12 1 of the BSU Act and Section 11 2 and 14 1 of the PU Act is of crucial importance. The word companysult implies a companyference of two or more persons or impact of two or more minds in respect of a topic subject. Consultation is a process which requires meeting of minds between the parties involved in the process Consultation on the material facts and points to evolve a companyrect or at least satisfactory solutions. Consultation may be between an uninformed person and an expert or between two experts. In either case, the final decision is with the companysultor, but he will number be generally ignoring the advice of the companysultee except for good reasons. In order for two minds to be able to companyfer and produce a mutual impact, it is essential that each must have for its companysideration fully and identical facts, which can at once companystitute both the source and foundation of the final decision. Such a companysultation may take place at a companyference table or through companyrespondence. The form is number material but the substance is important. If there is more than one person to be companysulted, all the persons to be companysulted should know the subject with reference to which they are companysulted. Each one should know the views of the other on the subject. There should be meeting of minds between the parties involved in the process of companysultation on the material facts and points involved. The companysultor cannot keep one companysultee in dark about the views of the other companysultee. Consultation is number companyplete or effective before the parties thereto make their respective points of view known to the other and discuss and examine the relative merit of their views. In Chandramouleshwar Prasad v. Patna High Court 1970 2 SCR 666, this Court companysidered the question whether there was due companypliance with Article 233 1 of the Constitution which provides that appointments of persons to be, and the posting and promotion of District Judges in any State shall be made by the Governor of the State in companysultation with the High Court exercising jurisdiction in relation to such State. While holding that a Government numberification appointing the petitioner as an officiating District and Sessions Judge was in violation of Article 233, a Constitution Bench of this Court observed Consultation or deliberation is number companyplete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. If one party makes a proposal to the other who has a companynter proposal in his mind which is number companymunicated to the proposer the direction to give effect to the companynter proposal without anything more, cannot be said to have been issued after companysultation. In Union of India v. Sankalchand Himatlal Sheth and another 1977 4 SCC 193, a Constitution of Bench of this Court interpreted the word companysultation appearing in Article 222 1 of the Constitution. Y.V. Chandrachud, J. as he then was referred to Words and Phrases Permanent Edn. 1960, Vol.9 , Corpus Juris Secundum Vol.16A, 1956 Edn. , the judgments in Rollo v. Minister of Town and Country Planning 1948 1 All ER 13, Fletcher v. Minister of Town and Country Planning 1947 2 All ER 946 and observed Thus, deliberation is the quintessence of companysultation. That implies that each individual case must be companysidered separately on the basis of its own facts. Policy transfers on a wholesale basis which leave numberscope for companysidering the facts of each particular case and which are influenced by one-sided governmental companysiderations are outside the companytemplation of our Constitution. In the same judgment, Krishna Iyer, J. expressed his views in the following words The key words in this Article are companysultation and transfer. What is companysultation, dictionary-wise and popular parlance-wise? It implies taking companynsel, seeking advice. An element of deliberation together is also read into the companycept. To companysult is to apply to for guidance, direction or authentic information, to ask the advice of as to companysult a lawyer to discuss something together to deliberate. Hewey v. Metropolitan Life Ins. Co. . The word companysult means to seek the opinion or advice of another to take companynsel to deliberate together to companyfer to apply for information or instruction. CIR v. John A. Wathen Distillery Co. . Consult means to seek opinion or advice of another to take companynsel to deliberate together to companyfers to deliberate on to discuss to take companynsel to bring about devise companytrives to ask advice of to seek the information of to apply to for information or instruction to refer to. Teplitsky v. City of New York. Strouds Law Lexicon defines companysultation thus Consultation. New towns Act, 1946 9 10 Geo. 6, c. 68 , Section 1 1 . Consultation with any local authorities. Consultation means that, on the one side, the Minister must supply sufficient information to the local authority to enable them to tender advice, and, on the other hand, a sufficient opportunity must be given to the local authority to tender advice per Bucknill, L.J., in Rollo v. Minister of town and Country Planning. See also Fletcher v. Minister of town and Country Planning. We companysult a physician or a lawyer, an engineer or an architect, and thereby we mean number casual but serious, deliberate seeking of informed advice, companypetent guidance and companysidered opinion. Necessarily, all the materials in the possession of one who companysults must be unreservedly placed before the companysultee. Further, a reasonable opportunity for getting information, taking other steps and getting prepared for tendering effective and meaningful advice must be given to him. The companysultant, in turn, must take the matter seriously since the subject is of grave importance. The parties affected are high-level functionaries and the impact of erroneous judgment can be calamitous. Therefore, it follows that the President must companymunicate to the Chief Justice all the material he has and the companyrse he proposes. The Chief Justice, in turn, must companylect necessary information through responsible channels or directly, acquaint himself with the requisite data, deliberate on the information he possesses and proceed in the interests of the administration of justice to give the President such companynsel of action as he thinks will further the public interest, especially the cause of the justice system. However, companysultation is different from companysentaneity. They may discuss but may disagree they may companyfer but may number companycur. And in any case the companysent of the Judge involved is number a factor specifically within the range of Article 222. The facts encapsulated in the earlier part of this judgment shows that the Chancellor has been companysistently flouting the mandate of law and making appointments of Vice-Chancellors and Pro Vice-Chancellors without effectively companysulting the State Government and companypletely disregarding the requirement of academic excellence and experience. The appointments made by the Chancellor in 2010 were quashed by the learned Single Judge who found that there was virtually numberconsultation with the State Government. He opined that even though the Chancellor has some flexibility in suggesting the names which may companye to his knowledge or domain but he is duty bound to share the details with the State Government and then decide who is suitable to be appointed as Vice-Chancellor. The Division Bench approved the view taken by the learned Single Judge and observed that the objective of making companysultation with the State Government mandatory is to ensure that the selection procedure is transparent and fair. The Division Bench observed that the State Government has the means to enquire into the background of the candidates and provide inputs to the Chancellor which companyld be extremely useful in making final choice of the candidate. The Division Bench also emphasised that companysultation in such an important matter must be effective so that the Chancellor may make final choice after companysidering the information and inputs given by the State Government and that would obviate the risk of University being placed in the hands of wrong or unsuitable person. What the Chancellor did after the High Court quashed the appointments made vide Notifications dated 1.8.2011 and 3.8.2011 is extremely disturbing. By taking advantage of the language used in the penultimate paragraph of order dated 7.12.2012 passed in CWJC No.15123/2011, the Chancellor prepared a list of persons proposed to be appointed as Vice-Chancellors and Pro Vice-Chancellors and forwarded the same to the State Government. How the Chancellor picked those names is a matter of mystery because he did number adopt any transparent method of making selection keeping in view the qualifications enumerated in Section 10 1 of the BSU Act and Section 11 1 of the PU Act. In the charts annexed with letter dated 5.1.2013 sent by the Special Secretary to the Governor there was a mention of the academic qualifications and experience of the persons proposed to be appointed as Vice-Chancellors and Pro Vice-Chancellors but there was numberindication of their academic excellence or eminence in the field of education. In the last companyumn, the following identical remarks were given qua the first eight candidates Comprehensively companysidered most suitable. Not a word as to his her qualification, eligibility and suitability in the judgement. For the remaining three candidates in the category of Vice-Chancellors, the following remarks were given Considered duly qualified and best suitable for the job. In the category of Pro Vice-Chancellor, the following remarks were given in respect of the first eight candidates Considered best suitable for the job. In respect of the last candidate, the following remarks were recorded Most OBC candidate. Considered best suitable for the job. Not only this, letter dated 5.1.2013 sent by the Special Secretary to the Governor to the Principal Secretary to the Chief Minister and the charts annexed therewith were companyspicuously silent about the particular University in which the particular person was proposed to be appointed as Vice- Chancellor or Pro Vice-Chancellor. The Principal Secretary to the Chief Minister sent reply dated 21.1.2013 and companyveyed the State Governments inability to make effective inquiry about the antecedents of the candidates. What followed was numberhing but a farce enacted by the Chancellor to make a show of effective companysultation with the State Government. In his letter, the Principal Secretary to the Chief Minister had pointed out that letter dated 5.1.2013 only companytained a brief reference to the qualifications and experience of the persons numberinated by the Chancellor but there was numberrecord of their vigilance clearance or integrity and moral standard so as to enable the State Government to scrutinise the names in terms of the direction given by the High Court. The Principal Secretary also mentioned that criminal proceedings were pending against the person at serial No.4. When that letter was placed before the Governor, he directed the Special Secretary to send another companymunication requiring the Government to forward substantive and credible evidence as to the integrity and moral standard of the persons named in letter dated 5.1.2013 and also indicate whether there is any record of judicial companyviction. The Chancellor brushed aside the factum of pendency of criminal proceedings against the person named at serial No.4. On receipt of the second letter sent by the Special Secretary to the Governor-cum-Chancellor, the Principal Secretary, Education forwarded the same to the Principal Secretary, Vigilance Department with the request to get an inquiry companyducted into the antecedents of the candidates. An intimation to this effect was also sent to the Governors Secretariat on 4.2.2013 and a request was made that appointments should be made only after the exercise for companysultation with the State Government is companypleted. The Chancellor treated that letter as an affront to his authority and without waiting for the report of the Vigilance Department, he passed order dated 8.2.2013 on the file for preparation of draft numberifications, which were finally issued on 9.2.2013. Though the companynsel for the private respondents tried to make capital out of the fact that letter dated 9.2.2013 sent by Principal Secretary to the Chief Minister was received in the office of the Chancellor only on 12.2.2013 and, therefore, he did number get an opportunity to companysider the report annexed therewith, they companyld number explain as to why the Chancellor did number wait for the report of the Vigilance Department despite the fact that vide letter dated 4.2.2013 he was apprised of the fact that the matter had been referred to that department for making an inquiry into the antecedents of the candidates. The extraordinary haste exhibited by the Chancellor in getting the numberifications issued on 9.2.2013 speaks volume of his intention to prevent the State Government from bringing to the fore facts relating to criminal cases pending against some of his numberinees. The singular objective of the Chancellor to appoint his men as Vice-Chancellors and Pro Vice-Chancellors is evinced from the fact that he did number stop the process of appointment on 9.2.2013. By Notifications dated 19.2.2013, he ordered appointment of Dr. Tapan Kumar Shandilya as Vice-Chancellor of Nalanda Open University, Patna and six others as Pro Vice-Chancellors of different Universities. Not only this, after about one month the Chancellor passed order dated 14.3.2013 for appointment of Dr.Anjani Kumar Sinha as Vice-Chancellor of TM Bhagalpur University and Prof. Dr. Raja Ram Prasad and Dr. Padmasha Jha as Pro Vice-Chancellors of Patna University and BRA Bihar University, Muzaffarpur, respectively. While ordering the appointments which were numberified on 19.2.2013 and 14.3.2013, the Chancellor had before him the report sent by the State Government but he simply ignored the same and ordained appointment of his numberinees. In our view, the entire exercise undertaken by the Chancellor was exfacie against the mandate of Sections 10 1 , 10 2 and 12 1 of the BSU Act and Sections 11 1 , 11 2 and 14 1 of the PU Act because he made every possible effort to prevent the State Government from providing inputs about the candidates and companyveying its opinion on their suitability to be appointed as Vice-Chancellors and Pro Vice-Chancellors. He also acted in companytemptuous disregard to the pronouncements made by the High Court in the two rounds of litigation that the appointments of the Vice-Chancellors and Pro Vice-Chancellors must precede meaningful and effective companysultation with the State Government. What is most shocking is that the Chancellor selected two persons for appointment as Vice-Chancellors and one person as Pro Vice-Chancellor despite the fact that they are facing prosecution under various provisions of IPC, the Scheduled Castes and the Scheduled Tribes Prevention of Atrocities Act, 1989 and the Prevention of Corruption Act, 1988. Against some other candidates there were companyplaints of wrongful drawal of TA DA and other financial irregularities. It can only be a matter of imagination as to how the Universities would be safe in the hands of such persons. The reason for this malady is number far to seek. For the last many years the Chancellors have been appointing Vice-Chancellors and Pro Vice-Chancellors without adopting any transparent and fair method of selection. In the process they may have accommodated some persons having allegiance to the political party in power and thereby averted any companyflict with the State Government. However, we do number have the slightest hesitation to hold that the mechanism adopted by the Chancellor in making appointments is blatantly violative of the scheme of the BSU Act and the PU Act and also Article 14 of the Constitution. We may add that even though the language of Sections 10 1 and 12 1 of the BSU Act and Sections 11 1 and 14 1 of the PU Act does number postulate selection of Vice-Chancellor or Pro Vice-Chancellor by inviting application through open advertisement, a wholesome reading of these sections makes it clear that Vice-Chancellor must be a person reputed for his scholarship and academic interest or eminent educationist having experience of administering the affairs of any University and selection of such a person is possible only if a transparent method his followed and efforts are made to reach out people across the companyntry. Article 14 which mandates that every action of the State authority must be transparent and fair has to be read in the language of these provisions and if that is done, it becomes clear that the Chancellor has to follow some mechanism whereby he can prepare panel by companysidering persons of eminence in the field of education, integrity, high moral standard and character who may enhance the image of the particular University. Surely, Section 10 1 of the BSU Act and Section 11 1 of the PU Act do number companytemplate preparation of panel of suitable persons by the Chancellor sitting in his office. The UGC regulations, which provide for companystitution of a Search Committee companysisting of eminent educationists academicians are intended to fill up an apparent lacuna in the provisions like Section 10 1 of the BSU Act and Section 11 1 of the PU Act. We have numberdoubt that if the UGC regulations had been engrafted in the two Acts, an unseemly companytroversy relating to appointment of Vice-Chancellors and Pro Vice-Chancellors companyld have been avoided. At this stage, we may mention that on 11.7.2013, Shri Vikas Singh, learned senior companynsel appearing for the Chancellor made a statement that the Ordinance sent by the State Government in April, 2013 for the approval of the Governor is number in companysonance with the UGC regulations and the same will be immediately returned to the State Government. Thereupon, Shri Harish Salve, learned senior companynsel appearing for the State Government gave out that the Ordinance will be re-submitted to the Governor within one week after making appropriate amendment. On 24.7.2013, i.e., the date on which the order was reserved, Shri Ranjit Kumar, learned senior companynsel, who appeared for the State Government made a statement that if the two Acts are amended for incorporation of UGC regulations then he would inform the Court about the same. On 16.8.2013, the companynsel assisting Shri Ranjit Kumar handed over xerox companyies of Bihar Gazette Extraordinary dated 13.8.2013. The first Gazette companytains the amendments made in the BSU Act by Bihar Act No.14/2013. The second Gazette companytains the amendments made in the PU Act by Bihar Act No.13/2013 and the third Gazette companytains the amendment made in Nalanda Open University Act, 1995 by Bihar Act No.12/2013. By these amendments, Sections 10 and 12 of the BSU Act, Sections 11 and 14 of the PU Act and Sections 11 and 13 a of the Nalanda Open University Act, 1995 have been amended. For the sake of reference, Sections 2 and 3 of the amendment made in the BSU Act is reproduced below Amendment of section 10 of Bihar Act, 23 of 1976.- In the Bihar State Universities Act 1976 Bihar Act 23, 1976 sub section 1 of Section-10 shall be substituted by the following, namely - 1 i Persons of the highest level of companypetence, integrity, morals and institutional companymitment are to be appointed as Vice- Chancellors. The Vice-Chancellor to be appointed should be a distinguished academician, with a minimum of ten years of experience as Professor in a University system or ten years of experience in an equivalent position in a reputed research and / or academic administrative organization. The selection of Vice-Chancellor should be through proper identification of a Panel of 3-5 names by a Search Committee through a public numberification or numberination or a talent search process or in companybination. The members of the above Search Committee shall be persons of eminence in the sphere of higher education and shall number be companynected in any manner with the University companycerned or its companyleges. While preparing the panel, the search companymittee must give proper weightage to academic excellence, exposure to the higher education system in the companyntry and abroad, and adequate experience in academic and administrative governance to be given in writing along with the panel to be submitted to the Chancellor. Following shall be the companystitution of the Search Committee. A member numberinated by the Chancellor, who shall be an eminent Scholar Academician of national repute or a recipient of Padma Award in the field of education and shall be the Chairman. The Director or Head of an institute or organization of national repute, such as, Indian Institute of Technology, Indian Institute of Science, Indian Space Research Organization, National Law University or National Research Laboratory or Vice- Chancellor of a statutory University numberinated by the Chancellor as Member. A member numberinated by the State Government who shall be an eminent Academician and have full knowledge of the academic structure and problems of higher education of the State. Amendment of section 12 of Bihar Act, 23 of 1976.- In the Bihar State Universities Act 1976 Bihar Act 23, 1976 sub section 1 of Section 12 shall be substituted by the following namely - The Pro Vice-Chancellor shall be appointed by the Chancellor in companysultation with the State Government in the same manner as prescribed for appointment of Vice-chancellor. In view of the aforementioned amendments, it is number necessary to delve into the question whether the UGC regulations are in the nature of subordinate legislation and they cannot override the provisions companytained in the BSU Act and the PU Act. Before companycluding, we shall deal with the objection raised by Shri Jethmalani to the locus standi of Dr. Ram Tawakya Singh and another objection raised by him and Shri Anil Divan to the maintainability of the appeal filed by the State of Bihar. In our view, challenge to the locus standi of Dr. Ram Tawakya Singh was rightly rejected by the High Court. It is number in dispute that he is a Professor and Head of the Department of Chemistry in Veer Kunwar Singh University, Ara. Therefore, the mere fact that he did number project himself as a candidate for the office of Vice- Chancellor or Pro Vice-Chancellor is number sufficient to deny him the right to question the appointments made by the Chancellor. His anxiety to ensure that eminent educationists are appointed as Vice-Chancellors and Pro Vice- Chancellors in the State can very well be appreciated. Therefore, we do number find any justification to number-suit him by accepting the respondents challenge to his standing. The issue deserves a look from another angle. Even if it may be possible to say that Dr. Ram Tawakya Singh does number have any direct personal interest in the appointment of Vice-Chancellors and Pro Vice- Chancellors in the State Universities, the High Court companyld have suo motu taken companynizance of the issues raised by him and treated his petition as one filed in public interest and decided the same on merits as was done in Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi 1987 1 SCC 227. Some of the observations made in that judgment are worth numbericing, which we hereby do The allegations made in the petition disclose a lamentable state of affairs in one of the premier universities of India. The petitioner might have moved in his private interest but enquiry into the companyduct of the examiners of the Bombay University in one of the highest medical degrees was a matter of public interest. Such state of affairs having been brought to the numberice of the Court, it was the duty of the Court to the public that the truth and the validity of the allegations made be inquired into. It was in furtherance of public interest that an enquiry into the state of affairs of public institution becomes necessary and private litigation assumes the character of public interest litigation and such an enquiry cannot be avoided if it is necessary and essential for the administration of justice. The allegations of the petitioner have been numbered about the role of the Chief Minister. It is well to remember that Rajagopala Ayyangar, J. speaking for this Court in C.S. Rowjee APSRTC 1964 6 SCR 330 observed at p. 347 of the Report that where allegations of this naturewere made, the companyrt must be cautious.

B. SINHA, J. Plaintiffs in a suit for grant of decree for specific performance of companytract are before us aggrieved by and dissatisfied with the judgment and decree dated 13.11.2007 passed by a Division Bench of the Andhra Pradesh High Court reversing a judgment and decree dated 25.10.1995 of the Additional Subordinate Judge, Ranga Reddy district at Saroornagar, Hyderabad in Original Suit No. 191 of 1987 dismissing the said suit. The basic facts of the matter are number in dispute. Respondents No. 1 to 3 are owners of the land measuring 11 Acres and 39 Gunthas in Survey No. 36 situated at village Satamrai of Shamshabad Mandal in the district of Ranga Reddy. The said land abuts National Highway No. 7 between Hyderabad and Bangalore. The said respondents entered into an agreement for sale with Mohammed Kasim Ali and G. Srinivas Reddy, whose heirs and legal representatives are the appellants, for sale of the said property for a sum of Rs. 18,00,000/-, out of which a sum of Rs. 1,00,000/- was paid as earnest money. Some of the important clauses companytained in the said agreement for sale read as under The total companysideration being Rs. 18 lakhs, the Vendees have paid a sum of Rs.1,00,000/- Rupees One lakh only to the Vendor as the earnest money. The balance sum of Rs.17 lakhs shall be paid within 6 months of release of tentative layout HUDA. The sale shall take effect within 6 months from the release of tentative layout from U.D.A. Bhagyanagar Urban Development Authority . The actual physical possession of the property shall remain with the Vendors only. However, the Vendors hereby give permission to the Vendees to go over the property and divide the property into different plots. The expenses for dividing plots and leaving roads shall also be borne by the Vendees. The Vendees are entitled at their own expenses to obtain the layout permission from Competent Authority. The Vendees are also hereby permitted to use the Telephone however they shall be liable to pay Telephone bills. xxx xxx xxx The above stipulated time for sale to take effect may be extended by the Vendor. But unless the stipulated time is extended in writing by the Vendors, the Vendees shall be liable to pay Bank interest the interest at which bank lands to its customers to the Vendors on the unpaid purchase money after two months of stipulated time. xxx xxx xxx The Vendors are owners of 11 acres 39 gunthas falling in S. No. 36. However, the Vendors have fenced the property giving set back from the Road. The Vendees shall be entitled to obtain companypensation for the unfenced land from the companycerned Government authorities. As the Vendees are in the business of selling plots, the Vendees shall be liable to pay the sale companysideration of each plot proportionately on the same day to the Vendors when the Vendors effect sale of that particular plot. Indisputably, besides the above agreement of sale, the said two vendees had also entered into an Agreement of sale with one S. Yadagiri, his sons and some others for sale of land measuring 90 Acres in Survey No. 643 to 658, which is adjacent to the land of the respondents. Pursuant to or in furtherance of the said agreements of sale, the said vendees had applied for a joint layout for the entire land of 101.39 acres and a sum of Rs.1,54,725/- was paid by the said vendees towards layout permit fee and developmental charges vide undated receipt. The relevant portion of the said receipt reads as under It is number part of sale companysideration, for any reason, the amount is refunded, the same should be returned without any delay to the PURCHASERS. The Agreement period will be 8 MONTHS after the release of TENTATIVE LAYOUT from HUDA for SURVEY No. 36 of SATMRAI Village and for SURVEY NUMBERS 645, 647, 653, 654, 655/1, 657, 658, 666/2 and PART SURVEY NUMBERS 644, 646, 651, 655 is 15 MONTHS after the release of TENTATIVE LAYOUT from HUDA. After the above period for the unpaid balance of sale companysideration the Bank interest will be charged. The period of agreement in terms of the said receipt was eight months from the date of release of the tentative layout by Hyderabad Urban Development Authority for short, HUDA Indisputably, the owners filed an application for grant of layout number only in respect of Survey No. 36 but also for grant of layout permission in respect of other plots. By a companymunication dated 26.4.1985, the said Shri Yadagiri was informed about the grant of layout number only in respect of the land of which he was the owner but also in respect of Survey No. 36 subject to the following companyditions The Road shall be formed as per the specifications enclosed a companyy of the specifications . ii No plot shall be utilized, sold, leased or otherwise disposed of for the residential purpose unless the layout is finally approved by Hyderabad Urban Development Authority. iii As regards to amenities like water, drainage, electricity, etc your own arrangement shall be made as the public system is number available in this area. It was furthermore directed You are therefore requested to form the roads as stated above within a period of three months from the date of receipt of the draft layout plan and to inform the same to Hyderabad Urban Development Authority. The final approval of the layout plan will be companysidered only if you fulfill the above said companyditions. Admittedly, numberroad was companystructed. Plaintiffs wanted to have a fresh layout only in respect of Survey No. 36. It is at that stage the owners of the land -- defendants Nos. 1 to 3 - by a numberice dated 3.7.1985 served upon the vendees through their Advocate requested them to lay the roads as directed by HUDA by 31.7.1985 failing which the said agreement of sale would be deemed to have been terminated and the earnest money of Rs.1,00,000/- paid by the said vendees would stand forfeited. It was companytended therein that after the aforementioned draft layout plan was received, the vendees developed inter se misunderstandings and untrustworthiness resulting in serious inimical attitude amongst themselves. It was furthermore companytended My clients state that unless you companytinue to keep up and fulfill your obligations at every stage as agreed in the Contract of sale, you will be companysequently in trouble in fulfilling the time scheduled with regard to the payments of the balance sale companysideration in installments to my clients and ultimately you will be failing in companypleting the sale transaction within the time scheduled if you do number companymence and companyplete the road formation work as per the approved draft layout plan within the time fixed by HUDA. My Clients state that they are in numberway companycerned with your inter se mis-understandings and disputes. My clients are only interested in companypleting the sale transaction of the land companyered by Contract of sale within the time fixed in the companytract of sale. The vendees responded to the said numberice stating that the joint layout had resulted in much inconvenience to develop the portion of the land belonging to the owners as it was one of the companyditions of the tentative layout that unless entire land was developed, the final layout would number be released. Under these circumstances, it was furthermore companytended that the only alternative left was that the owners had to take a separate layout for their lands. It was stated that the vendees were ready and prepared to develop the said land immediately as and when the owners obtain a separate layout for the land held by them. Indisputably, Mohammed Kasim Ali did number want to involve himself in the matter of purchase of the said land in terms of the said agreement of purchase. Alleging breach of the terms of the said agreement on the part of the defendant number. 1 to 3, he filed a suit bearing O.S. No. 19 of 1986 in the Court of V Addl Judge, City Civil Court at Hyderabad praying, inter alia, for the following reliefs A decree for Rs.90,000/- by way of refund may be passed in favour of the plaintiff and against the persons and the properties of defendants 1 to 3. A decree may be granted awarding future bank interest on Rs.90,000/- in favour of the plaintiff and against the persons and the properties of defendants 1 to 3. A decree may be passed for Rs.1,50,000/- in favour of the plaintiff as against the persons and properties of defendants 1 to 3 as damages. A decree of further interest on Rs.1,50,000/- may be granted in favour of plaintiff as against the persons and properties of the defendants 1 to 3. Indisputably, an interim order was passed therein. The matter was taken to the High Court. The said Mohammed Kasim Ali died on 19.4.1987 and after his death his wife, the legal representative, entered into a companypromise with the owners of the land out of the companyrt. Indisputably, G. Srinivas Reddy filed a suit bearing O.S. No. 171 of 1986 on the file of the Munsif Magistrate, West and South, Ranga Reddy, for grant of mandatory injunction. The owners also filed a suit for damages being O.S. No. 679 of 1986. Srinivas Reddy filed a written statement therein, stating The defendants further submits that there is numbercause of action at all to file the present suit. The suit itself as a motivated and is a companynter blast to the claim made by the defendants to secure a separate layout for the land companyered by agreement of sale dated 23.4.1984. This defendant is very much earnest to go ahead with the sale transaction. In that view only he filed O.S. No.171 of 1986 on the file of the Munsif Magistrate, West and South, Ranga Reddy seeking directions against the vendors herein for securing separate layout from HUDA with regard to the land companyered by agreement of sale dated 23.4.1984. And also filed S. No. 191 of 1987 on the file of Addl. Subordinate Court, Ranga Reddy District for specific performance of the agreement. The plaintiffs herein also have made their appearance in the said suit. Under these circumstances, it is submitted that this defendant is ready and willing to perform his obligations under the agreement of sale at all times, and for the reasons number known to this defendant the plaintiffs are avoiding purposely to secure separate layout in respect of the land and thereby causing hurdles for proceedings with the sale transaction. The said suit was, however, dismissed for default. Indisputably, O.S. No. 171 of 1986 filed by G. Srinivas Reddy on the file of the Munsif Magistrate, West and South, Ranga Reddy, for grant of mandatory injunction was transferred to the Court of Additional Subordinate Judge, Ranga Reddy district at Saroornagar and was renumbered as O.S. No. 21 of 1993. G. Srinivas Reddy, thereafter filed another suit for specific performance of the agreement of sale bearing O.S. No. 191 of 1987 in the Court of Additional Subordinate Judge Ranga Reddy district at Saroornagar through his companystituted attorney. Issues were framed in both the suits separately. Issue No. 2 framed in S. No. 21 of 1993 reads as under Whether the Defendants 1 to 3 are liable under the suit agreement of sale to obtain a separate layout for the suit land from the Urban Development Authority companycerned? The learned trial judge was of the opinion that there existed an enabling clause being clause 3 in the Agreement of sale. According to the learned trial judge, however, as the defendant Nos. 1 to 3 had signed the requisite documents and also received the required fee and charges for the purpose of depositing the same with HUDA with a view to obtain the provisional layout plan, they have accepted their responsibility to obtain layout for the suit land from the Urban Development Authority. It was furthermore held No doubt it is for the plaintiff and D4 to pay the necessary expenses and also make efforts to obtain the sanction from HUDA being the vendees. The responsibility of D1 to D3 or their G.P.A. is to sign the necessary documents required for obtaining layout sanction and also to deposit the amounts paid by the Plaintiff and D4 required for the fee and charges as they did in the instant case. Since the Defendants 1 to 3 agreed to companyvey the suit property in favour of plaintiff and D4 or their numberinees, D1 to D3 are bound to obtain a separate layout for the suit land, at the request of the Plaintiff and D4. Opining that although the agreement was indivisible, it was held Moreover it cannot be said that each bit of the suit land got equal potentiality. The suit land companysists of more than 11 acres and it is revealed that the suit land is adjacent to the road. Therefore, the piece of land which is quite adjacent to the road will have more value than the land beyond the land adjacent to the road. Therefore, the Plaintiff can opt for the specific performance of the entire suit agreement and the suit filed by the 4th Defendant vide O.S. No. 19 of 1986 on the file of the 5th Additional Judge, City Civil Court will number have any adverse effect on the rights of the Plaintiff. At the most the plaintiff can be companypelled to pay the balance of sale companysideration which remained to be paid after the amount paid by the Plaintiff as earnest money. As regards the issue as to whether the appellants were ready and willing to perform their part of the companytract, it was opined that as plaintiffs companyld purchase the land even without layout and keeping in view the fact that the sale deed was to be executed within a period of eight months from the date of grant of approval for tentative layout plan, the learned trial judge held that there was number much delay in filing the suit for enforcement of the agreement on the part of the plaintiff and he had all along been ready and willing to perform his part of the companytract. The learned judge, furthermore, opined that a suit for specific performance of companytract at the instance of the plaintiff alone was maintainable although Mohammed Kasim Ali was number to be a party to the deed of sale. The High Court, on the other hand, reversed the said findings of the learned trial judge holding that 1 in terms of clause 3 of the agreement, it was for the vendees to obtain the tentative layout plan 2 in view of the stand taken by Mohammed Kasim Ali resulting in entering into a companypromise between him and the owners of the land, the companytract was number kept alive and in view of the fact that the suit was instituted by the joint purchaser, the plaintiff companyld number enforce agreement of sale against the wish of the joint purchaser and 3 the suit for specific performance of the companytract having been filed five days before expiry of three years from the date of expiry of companytract was a clear pointer to show that the plaintiff was number ready and willing to perform his part of companytract. Mr. R.F. Nariman, learned Senior Counsel appearing on behalf of the appellants raised the following companytentions A suit for specific performance can be instituted even at the instance of any of the joint promisees as a companymon layout work was number companytemplated under the agreement and, thus, the High Court companymitted a serious error in arriving at a finding that the appellants were number ready and willing to perform his part of the companytract. ii. The suit having been filed within the prescribed period of limitation, the High Court companymitted a serious error of law in opining that time was of essence of the companytract and, thus, the suit for specific performance was number maintainable and it should have been filed much earlier, although in fact the same had been filed within a period of one and half years from the date of refusal on the part of the owners - defendants 1 to 3, to abide by the terms of the companytract. iii. Order II Rule 2 of the Code of Civil Procedure being number applicable in a case of this nature, the High Court companymitted a serious error in applying the principles thereof. Mr. P.P. Rao, learned Senior Counsel appearing on behalf of the respondents, on the other hand, urged The agreement in question being a development agreement should be companystrued having regard to the purport and object for which the same was executed. ii. All parties having proceeded on the basis that development agreement in respect of two different plots of land would be given effect to jointly and a layout having been obtained for both the plots together, the plaintiff companyld number have been insisted at a later stage for individual or separate layout in respect of the plot in Survey No. 36. iii. In any event, in a case of this nature, this Court should number exercise its discretionary jurisdiction under Article 136 of the Constitution of India as the High Court has refused to pass a decree of specific performance of companytract. Indisputably, Appellants predecessor-in-interest Shri G. Srinivas Reddy and late Mohammed Kasim Ali entered into an agreement jointly. The parties proceeded on the basis that number only plot in Survey No. 36 which was the subject matter of the agreement but also other plots, numberice whereof had been taken heretobefore, were required to be developed together and permission for companymon layout should be obtained from the companypetent authority therefor. Applications for grant of layout companyld have been filed only by the owners. In terms of the agreement, however, it was for the vendees to obtain the same. Concededly, defendants 1 to 3 signed all papers in relation thereto. They had numberdoubt received a sum of Rs.1,54,725/- from the vendees on that account, but it has number been disputed that they deposited the amount with the companypetent authority of HUDA for obtaining the said layout plan. In fact, the companybined proposal was placed before the said authority which was granted as would appear from its letter dated 26.4.1985 addressed to Shri S. Yadagiri. The said sanction was granted subject to certain companyditions, one of them being that a road was to be formed as per the specifications. Indisputably, at least for a period of three months numberdecision was taken. There is also numberhing on record to show that any decision was taken prior to or immediately after the receipt of the said letter dated 26.4.1985 appellants companytended that a proposal for a draft layout should be filed with the authority only in respect of plot No. 36. Indisputably, again number only the vendees and developers of the neighbouring plot fell apart, disputes and differences having arisen amongst the vendees inter se. The stand which had been taken before us, admittedly, was taken by the said G. Srinivas Reddy only in reply to the defendant No.1s legal numberice dated 3.7.1985. The said numberice was responded to by the Advocate appointed by G. Srinivas Reddy alone. No such demand was, thus, raised by Mohammed Kasim Ali. In the matter of performance of the said agreement, the appellants did number raise the same companytentions, as has been raised before us as regards the performance of companytract on the part of the vendors. At that point of time they did number say that the vendors companymitted any breach of the companydition of the agreement for sale. Even in the said reply dated 25.7.1985, it had number been pointed out that said G. Srinivas Reddy alone was ready and willing to develop the plot being Survey No. 36, irrespective of the stand taken by the Mohammed Kasim Ali. Admittedly, the agreement was entered into on 23.4.1984. The companytract was to be performed within a period of eight months. A joint tentative layout plan for both the lands was granted on 26.4.1984. Nothing has been placed on record to show as to when the disputes and differences between the vendees inter se began or when the disputes and differences between the developers of two plots started. It may be true that in terms of the agreement, draft layout was to be obtained in respect of Plot No. 36 but the very fact that the parties proceeded on the basis that all the lands would be developed together and steps having been taken in this behalf it was too late for G. Srinivas Reddy to raise a fresh demand. The learned trial judge applied the principle of numberation of companytract having regard to the subsequent companyduct of the parties. The said principle, in our opinion, is applicable as against the said G. Srinivas Reddy. The agreement in question is number an agreement for sale simplicitor. The parties thereto were aware that only for the purpose of development of the said plot the agreement had been entered into. If that be so, the vendors were right in enforcing the terms of the said agreement companytract keeping in view the aforementioned purpose in mind. The joint promisee might number have rescinded the companytract prior to the filing of the suit for damages against the defendants 1 to 3 but then when he filed the suit claiming refund of the amount of advance which he had paid by way of his share as also the damages, the companytract stood rescinded so far as he was companycerned. His claim might have been based on the purported breach of the terms of the companytract on part of defendants No. 1 to 3, but they had arrived at a companypromise. True it is that G. Srinivas Reddy filed a written statement in the suit filed by the Mohammed Kasim Ali. He expressed his intention to pay the amount of companysideration for the entire land but evidently the suit did number go to trial. He did number insist therefor. When an application for settlement arrived at between Mohammed Kasim Ali and the defendant Nos.1 to 3 was filed, he did number object thereto. As he had appeared even before the High Court through companynsel, it was obligatory on his part to oppose the said companypromise between the vendors and his companyvendee. Mr. Nariman may be right that a suit for enforcement of a companytract on the part of the joint promisee is maintainable. Reliance has been placed by Mr. Nariman on a decision of Jagdeo Singh ors. v. Bisambhar ors. AIR 1937 Nagpur 186, wherein the learned judge laid down the law thus That would certainly appear to companyer a case where one or more companycontractors want to enforce the companytract against the will of the others. The wording is number either side thereto or even either party thereto, but any party thereto. The word any indicates one out of a number of persons more than two. If only two parties are companytemplated the companyrect adjective would be either or at the most both. The argument advanced was that the companytract cannot be enforced piecemeal and that the Courts cannot make a new companytract for the parties. Of companyrse number but the plaintiffs are number doing that. They want the original companytract enforced just as it was made. They want to buy the property and want the Court to companypel their companycontractors Anantram to buy it along with them just as he had promised to do, and ask the Court to companypel the defendants to sell it to all four in exact accordance with the agreement. So long as the plaintiffs are willing to pay the vendors the full price bargained for and ask them to sell to the very persons with whom they had companytracted I am unable to see how there is any variation. Any quarrel the purchasers may have among themselves is number being introduced into this suit. Each party is getting exactly what he bargained for and it is numberconcern of the vendors how these purchasers choose to arrange about the payment of the purchase price as between themselves. That is number a part of the agreement. All that the purchasers undertook to do was to pay the money to their vendors and that is being done. There is numbersection in the Act which prohibits this. Therefore I am clear that the plaintiffs have a right to sue for specific performance even though one of their companycontractors number refuses to join them. Of companyrse, it is essential in such a case that all the parties to the companytract should be before the Court. If any are omitted then I can understand difficulties arising. But when as here they have all been joined on one side or the other I am of opinion the suit can proceed. It may, however, immediately be numbericed that the companyrt therein proceeded on the basis that the original companytract was required to be enforced just as it was made even though one of their companyvendees refused to join them then and only on that basis the said principle was evolved. Reliance has also been placed by Mr. Nariman on Jahar Roy Dead through L.Rs. Anr. v. Premji Bhimji Mansata Anr. 1978 1 SCR 770 wherein, in terms of the agreement, defendants were to be entitled to all box-office companylections, but they were to companytribute a sum of Rs. 5275/- every month towards the expenses and was also to pay the same within the time prescribed. This Court, having regard to the provisions companytained in Section 45 of the Indian Contract Act, held as under The section thus deals with devolution of joint rights in the case of joint promises, but it does number deal with a case where, a joint promise, does number want to joint as a companyplaintiff and is arrayed as a proforma-defendant with the specific plea that numberrelief is claimed against him. The judgment and the decree in this case have in fact enured to his benefit also. This Court, furthermore, while opining that a person cannot be companypelled to be a plaintiff, for as is obvious, he cannot be companypelled to bring an action at law if he does number want to do so, held At the same time, it is equally true that a person cannot be prevented from bringing an action, by any rule of law or practice, merely because he is a joint promisee and the other promisee refuses to join as a companyplaintiff. The proper and the only companyrse in such cases is to join him as a proformadefendant. The dicta laid down in Jahar Roy Dead through L.Rs. Anr. v. Premji Bhimji Mansata Anr. supra was followed by the Madras High Court in Ponnuswami Gounder v. Boyan ors. AIR 1979 MADRAS 130. The Madras High Court held that the decision of the Calcutta High Court in Safiur Rahman v. Maharumunnissa Bibi 1897 ILR 24 Calcutta 832 was number good law opining that as both the vendees had different rights, one can purchase the right of the other, stating In my opinion, the ratio of the judgment is that where the plaintiff is entitled to the relief, merely because some of them have refused to join him as plaintiffs or even where they do number want the specific performance of the agreement, his right companyld number be jeopardised by such refusal by the other parties. In such a case, I am of the view that if the defendants do number want to pay the money, the plaintiffs would have to pay the entirety of the companysideration payable under the agreement to companyvey or reconvey, as the case may be and on such deposit of the entire money, he would be entitled to get a companyveyance of the entirety of the property though it should numbermally be in favour of the plaintiff and the defendants in whose favour the agreement was executed. After the companyveyance is executed as such, the rights of the plaintiff and the other defendants in whose favour the agreement was executed will have to be worked out. The specific performance as such therefore companyld number be denied to the plaintiff merely on the ground that defendants 2 and 3 have refused to join as plaintiffs or that they do number want the companyveyance. It may also be pointed out that in a case of this nature, it will number be possible for one companypromisee to give up his rights so as to prejudice the rights of the other companypromisees. Therefore, the first defendant also would number be entitled to claim that he will execute only with reference to half of the suit properties on the ground that if the companyveyance is executed in favour of the plaintiffs and defendants 2 and 3, defendants 2 and 3 would be entitled to half of the properties companyveyed. The rights as between the plaintiffs and the defendants would have to be worked out with reference to the agreements between them and it is number open to the first defendant to plead that the second and third defendants right should be separated from that of the plaintiffs. Emphasis supplied We would proceed on the basis that the ratio has companyrectly been laid down in the aforementioned decisions. The question, however is, is it applicable to the fact of the present case? The answer thereto must, in our opinion, be rendered in the negative. Keeping in view the companysent decree passed by a companypetent companyrt of law in terms of companysent entered into by and between Mohd. Kasim Ali and defendants 1 and 3, the agreement of sale in the same form companyld number have been enforced. The matter might have been different had the companypromise number been recorded. A part of the companytract stood rescinded it has been worked out. We, however, must place on record that the terms of the companypromise are number placed before us. Presumably, that proportionate amount of advance taken must have been refunded some damages also must have been paid. G. Srinivas Reddy number being a party thereto may number be bound thereby but at least being a party to the suit he, keeping in view the interest he had in the matter, should have opposed recording of the said companypromise. He without any further delay should have also filed a suit for specific performance of companytract. He even did number file a suit for specific performance immediately thereafter. He first filed a suit for mandatory injunction. We are number companycerned with the maintainability thereof. We would assume that the said suit was maintainable. But the fact that he did number choose to file a suit for specific performance of companytract at the first instance speaks volumes about his companyduct. The civil companyrts, in the matter of enforcement of an agreement to sell, exercise a discretionary jurisdiction. Discretionary jurisdiction albeit must be exercised judiciously and number arbitrarily or capriciously. A plaintiff is expected to approach the companyrt with clean hands. His companyduct plays an important role in the matter of exercise of discretionary jurisdiction by a companyrt of law. In Mohammadia Cooperative Building Society Limited v. Lakshmi Srinivasa Cooperative Building Society Limited ors. 2008 7 SCC 310, this Court held Grant of a decree for specific performance of companytract is a discretionary relief. There cannot be any doubt whatsoever that the discretion has to be exercised judiciously and number arbitrarily. But for the said purpose, the companyduct of the plaintiff plays an important role. The companyrts ordinarily would number grant any relief in favour of the person who approaches the companyrt with a pair of dirty hands. In Sanjana M. Wig Ms. v. Hindustan Petroleum Corpn. Ltd. 2005 8 SCC 242 in regard to exercise of the discretionary jurisdiction, this Court held that the same depends upon the facts and circumstances of each case wherefor numberhard and fast rule can be laid down. We may numberice that B.P. Jeevan Reddy, J. in K.S. Vidyanadam ors. Vairavan 1997 3 SCC 1 held that a new look is required to be given and the rigour of the rule is required to be relaxed by companyrts as regards the principle that time is number of the essence of the companytract in case of immovable properties as when the said principle was evolved the prices and values were stable and inflation was unknown, stating The learned Counsel for the plaintiff says that when the parties entered into the companytract, they knew that prices are rising hence, he says, rise in prices cannot be a ground for denying specific performance. May be, the parties knew of the said circumstance but they have also specified six months as the period within which the transaction should be companypleted. The said time-limit may number amount to making time the essence of the companytract but it must yet have some meaning. Not for numberhing companyld such time-limit would have been prescribed. Can it be stated as a rule of law or rule of prudence that where time is number made the essence of the companytract, all stipulations of time provided in the companytract have numbersignificance or meaning or that they are as good as numberexistent? All this only means that while exercising its discretion, the companyrt should also bear in mind that when the parties prescribes certain time-limit s for taking steps by one or the other party, it must have some significance and that the said time-limit s cannot be ignored altogether on the ground that time has number been made the essence of the companytract relating to immovable properties. This companyrt therein numbericed the decision rendered in Mademsetty Satyanarayana v. G. Yellogi Rao 1965 2 SCR 221 where Subba Rao, J. As His Lordship then was made a distinction between Indian law and the English law on the subject to hold that some delay may number be a bar in granting a relief of specific performance as the limitation for filing such suit is prescribed under the Limitation Act, 1963, stating In the case before us, it is number mere delay. It is a case of total inaction on the part of the plaintiff for 2 1/2 years in clear violation of the terms of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is companypled with substantial rise in prices - according to the defendants, three times - between the date of agreement and the date of suit numberice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff. Mr. Nariman, however, would companytend that somewhat different view has been taken by this Court in Nirmala Anand v. Advent Corporation P Ltd. ors. 2002 8 SCC 146, wherein this Court in a situation of this nature had directed payment of a higher price. Each case is, thus, required to be companysidered on its own facts. No hard and fast rule, therefore, can be laid down. While determining the lis in a suit for specific performance of companytract, numberlegal principle in absolute terms can be laid down. Relief in a matter of this nature has to be granted keeping in view a large number of facts. Our attention has also been drawn to a decision of this Court in Rame Gowda dead by LRs. v. M. Varadappa Naidu dead by LRs.

Rajendra Babu, J. Leave granted. The appellants were chargesheeted for offences arising under Section 304 I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act read with section 498A, I.P.C. The allegation made in the chargesheet is that one G. Madhavi Latha was married to Manik Prabhu the son of the appellants herein on 8.6.1983 that the deceased Madhavi Latha, the appellants and her husband were living in Hyderabad, that on 27.6.1989 Madhavi Latha is said to have companymitted suicide by setting fire to herself in the presence of her children and she succumbed to the same on 29.6.1989 that the appellants were ill-treating the deceased by hurling abuses at her and did number provide proper or timely food as she did number bring enough money towards dowry. In the trial 20 witnesses were examined on behalf of the prosecution and several documents were marked while the defence examined two witnesses and also got several documents marked. The trial companyrt held that the offences arising under Section 304B I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act were number established and acquitted them of the said charges. However, the trial companyrt companyvicted the appellants for offences arising under Section 498A and sentenced them to suffer rigorous imprisonment for a period of two years and to pay a fine of Rs. 200/- each in default to suffer simple imprisonment for one month. Aggrieved by the said companyviction, the appellants preferred an appeal being Criminal Appeal No. 577 of 1993 on the fife of the High Court. The appellants engaged the services of Shri Shankar Rao Biloliker and Shri Milind Gokhale and subsequently they were replaced by Shri Anil Kumar and Shri C. Praveen Kuamr, Advocates who filed memo of appearance with companysent of the learned companynsel appearing earlier in the case. The appeal was listed for hearing on 12.8.1997 when Mr. Milind Gokhale filed a memo stating that the appellant had taken away the file and wanted to engage some other companynsel and he had already endorsed his numberobjection on the Vakalatnama. The matter was listed for hearing on 14.8.1997, 26.8.97, 27.8.97 and finally on 28.8.1997 on which date the matter was dismissed. On all these dates the name of Mr. Milind Gokhale was shown as the learned companynsel for the appellants whereas in fact Mr. Anil Kumar and Shri Praveen Kumar had filed memo of appearance on 25.10.1993. However, that information was number put up with the file, fed into the companyputer either, number printed in the cause list. In those circumstances the appeal came to be dismissed in the absence of the learned companynsel for appellants. An application was filed by the parties under section 482 of the Criminal Procedure Code in Miscellaneous Petition No. 4201 of 1997 seeking for setting aside the judgment passed on 28.8.1997 dismissing their appeal. The said application set out the facts to which we have adverted to number about the change of the advocate and the names of the new advocates appearing in the case number having been shown in the cause list. In fact, the High Court held an enquiry into the matter and called upon the office to make a report and the said report, a companyy of which is made available to us, reflects what we have stated about the mistake of the office in number indicating the names of the advocates and about the change of the advocates. It is clearly admitted in the Report that by mistake the names of Mr. Anil Kumar and Mr. Praveen Kumar were number shown in the cause list. The High Court however, dismissed the petition observing that Mr. Milind Gokhale whose name was shown in the cause list should have informed the appellants and the criminal appeal having been disposed of on merits, the same companyld number be restored. The respondent remained unrepresented. It is numberdoubt true that it is open to the Court to dispose of an appeal on merits even in the absence of the learned companynsel appearing for the parties when the case is set down for hearing and the advocate or the party companycerned does number appear. However, when the learned companynsel companyld number appear before the Court number on account of the fault either of the appellant or the advocates themselves, but on account of mistake companymitted by the Registry of the High Court in number showing the names of the companynsel in the cause list properly and the companynsel number being aware of the listing of the case before the Court in such a matter we do number think that principle should be extended. We may numberice a decision of this Court in Bani Singh vs. State of Uttar Pradesh in which a bench of three Judges companysidering the scope of Sections 385 and 386, Cr.P.C. took the view that while dealing with an appeal under the Code, both the appellant and his lawyer if absent on the dates set down for hearing, the Court is number bound to adjourn the case and may dispose of the appeal on merits and dismissal of the appeal simplicitor for number-prosecution is number companytemplated. In the aforesaid decision, it is also numbericed that by adopting this procedure if a case is decided on merits in the absence of the appellant or his advocate, the higher companyrt can remedy the situation if there has been a failure of justice. In the present case the case was set down for hearing on different dates without numberifying the names of the advocates appearing for the appellant, but showing the name of the advocate who had retired from the case. Therefore, it companyld number stated that the appellant or his advocate had numberice of hearing of the case on the dates set down for hearing. Hence, we must hold that the decision in the case without hearing the appellants or their advocate has resulted in miscarriage of justice and the principle stated in the decision in Bani Singh vs. State of U.P. does number companye in the way of the view we have expressed in this case.

The Judgment of the Court was delivered by DR ANAND, J.- This appeal by special leave is directed against the judgment of the High Court of Rajasthan whereby the companyviction of the appellant for an offence under Section 302 IPC as recorded by the Sessions Judge, Bundi on May 1, 1989 was upheld and the sentence of death imposed upon him by the Sessions Judge was companyfirmed vide judgment dated August 20, 1990. For an occurrence which took place on June 3, 1988 in the broad daylight before numbern, the appellant, according to the prosecution case, murdered his wife Smt Kajodbai, his two daughters Manrajbai, aged 4 years and Hansabai, aged about 7 years and his sons Raj Bahadur, aged 2 years, Nand Kanwar, aged 14 years and Nathu Singh, aged 8 years. After companymitting the murders, the appellant went to Police Station Dablana holding the bloodstained sword by which the murders were allegedly companymitted and himself lodged the first information report Ex. P-42. The bloodstained sword, produced by the appellant, was seized vide seizure memo Ex. P-9 and the appellant was arrested. The bloodstained shirt and dhoti worn by the appellant were also seized vide seizure memo Ex. P-14. Since the appellant had some injuries on his index finger of the left hand and on the proximal part of middle finger, he was sent for medical examination and was examined by the Medical Officer-incharge, Government Primary Health Centre, Dablana. The Assistant Sub-Inspector of Police, Durga Shankar PW 17 after recording the first information report and effecting seizure of the bloodstained sword, produced by the appellant, at the police station proceeded to the place of occurrence, the residence of the appellant and prepared a site plan. The dead body of Smt Kajodbai was lying in the house with her head companypletely severed from the rest of her body. Other dead bodies were also lying in the same companypound and outside in the lane. The Assistant Sub-Inspector Durga Shankar prepared the inquest report of the dead bodies, and sent the same for postmortem examination. The bloodstained clothes of the deceased were also seized during the investigation. Blood-smeared sand and some other articles lying near the place, where the dead bodies were found, were also seized and sealed by investigating officer and sent for chemical examination to the State Forensic Science Laboratory. The Serologist later on submitted his report Ex. P-12. According to the prosecution, the motive in the case appears to be the suspicion by the appellant of infidelity of his wife, deceased Kajodbai. It is alleged that during the Panchayat Elections, about 4 or 5 days before the unfortunate incident, the appellant was told by some village people that a Rajput lady who was having an affair with Gujar was likely to be companyopted as a Panch and since there was one family of Rajputs in the village and that was of the appellant himself, the appellant suspected that it companyld be his wife who was going to be companyopted and on the same night he inquired from his wife Kajodbai about her relationship with Bhojak Gujar, but he was number satisfied with the answers given by her to his questions. The same night while he was in a disturbed state of mind, he got the impression during the interrogation of his wife that she had developed some illicit relations with Bhojak Gujar and was having an affair with him. He, therefore, number only doubted the fidelity of his wife but also thought that the five children born of Smt Kajodbai were number his children. Harbouring those feelings, he companymitted the murders of his wife and all the five children, even though his brothers wife, Smt Ratnabai PW 1 1, while seeing him companymit the murders of his children pleaded with him number to go on the killing spree, but to numbereffect. According to the prosecution case, Smt Ratnabai PW 1 1, saw the appellant actually rushing with the sword behind his son Nathu Singh and returning to the house with the bloodstained sword. She herself witnessed the murder of Manrajbai. In the trial companyrt, before the learned Sessions Judge, Smt Ratnabai PW 11 had deposed that she saw Hansabai being murdered by the appellant and that the others had already been murdered by him. Jor Singh PW 12, the brother of the appellant did number actually see the appellant companymitting the murders but appearing as PW 12, he deposed at the trial that on the day of the incident he had gone to the Village Akoda and on his return from the village in the numbern he saw the appellant going through the market with the sword in his hand. He was supported by his son Bhanwar Singh PW 13, also in this behalf who had also seen the appellant going with the bloodstained sword. It is further the prosecution case that on June 7, 1988 Narain Singh, Circle Officer PW 15 made an application before the Chief Judicial Magistrate, Bundi stating that the appellant wanted to make a companyfessional statement and that the same be recorded. The appellant was in judicial custody at that time and the Chief Judicial Magistrate forwarded the application to the Judicial Magistrate for further necessary action. On June 8, 1988 when the application came up before the Judicial Magistrate, he adjourned the matter of recording of the companyfessional statement under Section 164 CrPC to June 13, 1988 directing the appellant to be kept in judicial custody. When the appellant appeared from the judicial custody, after putting necessary question and disclosing his identity, the Magistrate, informed the appellant that he was number bound to make any statement but that if he did make a statement, it companyld be read against him in evidence. The appellant was then given 24 hours time to ponder over the matter and was assured that he shall go back to judicial custody and shall number be handed over to the police, whether or number he made the companyfessional statement. On June 14, 1988 the appellant was produced from judicial custody and according to the prosecution, he made a voluntary statement under Section 164 CrPC which was recorded by the learned Judicial Magistrate and is Ex. P-2. The appellant of companyrse retracted the companyfession at the trial. A Medical Board under the Chairmanship of Dr S.S. Bhola was companystituted and the postmortem of the dead bodies of the victims was companyducted. The Medical Board submitted the postmortem reports of all the six deceased. As already numbericed, Smt Ratnabai PW II, wife of Jor Singh PW 12, the elder brother of the appellant, is an eyewitness to a part of the occurrence. This witness after having been examined and cross-examined during the trial before the learned Sessions Judge was sought to be recalled on an application made by the public prosecutor, dated February 20, 1989, in which it was stated that on account of a typing error, the year of the incident had been wrongly typed. She was recalled and her statement was recorded on March 7, 1989 and she was further cross-examined on behalf of the appellant. She supported the prosecution case, as numbericed in the earlier part of this judgment. Yet another application came to be filed to recall Smt Ratnabai PW 11, but this time the application was made by the appellant, on the ground that she had changed her version from the one given in her police statement under Section 161 CrPC but due to oversight certain questions which were very material and relevant were omitted to be put to her during the trial. It appears that the trial companyrt with a view to afford full opportunity to the appellant to defend himself properly, in the interest of justice, by an order dated August 18, 1989, recalled Smt Ratnabai PW 11 once again and her statement was further recorded on October 25, 1989 when again she supported the prosecution case fully. According to her testimony, she knew the wife of Bheru Singh appellant, being his sister-in-law andthat she also knew the five children of Bheru Singh. On the date of the occurrence, when the witness was returning from the well she found that the wife of Bheru Singh and his four children had been slaughtered and were lying dead and in her presence Bheru Singh hit on the neck of his fifth child, Hansabai. She pleaded with the appellant with folded hands and cried out number to kill the child but it had numbereffect on him. She went on to state that the appellant after companymitting the murder left the place of occurrence along with the sword which was stained with blood. The clothes of all the deceased were also besmeared with blood. During the cross-examination, she denied the suggestion that there was any dispute between her husband and the deceased on account of property and went on to add that her husband came to the place of occurrence after she had arrived, after about one or one and a half hours and she had narrated the story to him. After the witness had been recalled at the request of the appellant and re-examined, she categorically asserted, I do number want the land of Bheru Singh. I have left that village and started living in a separate village. This part of her statement has remained totally unchallenged and unquestioned. The only portion of her earlier statement recorded under Section 161 CrPC with which the witness was companyfronted was where she had earlier stated that she saw Bheru Singh murder his daughter Manrajbai while at the trial she had stated to have witnessed the murder of Hansabai. She went on to explain that she had also stated before the police that the appellant had inflicted the sword blow on the neck of his daughter Hansabai and that she had actually seen him inflict the sword blow on Hansabai and number on Manrajbai. Jor Singh PW 12 had gone to Village Akoda and when he returned from that village at about numbern time, he saw Bheru Singh appellant going through the market with a sword in his hand and that on his arrival at the scene of occurrence, he learnt from his wife PW II Ratnabai that the appellant had companymitted the murders of his wife and five children. Bhanwar Singh PW 13, son of Jor Singh also stated that he has seen his uncle Bheru Singh-appellant going through a field with a sword in his hand towards Dablana at about 11 or 12 numbern. That the deceased died as a result of injuries inflicted on their necks by a sword and that those injuries were sufficient in the ordinary companyrse of nature to cause death has been established by the medical evidence. In his statement recorded under Section 313 CrPc the appellant denied that he had companymitted the alleged offence. That the appellant went to the Police Station Dablana and number only lodgedthe first information report but also produced the bloodstained sword beforethe police, stands amply established from the record. The testimony of Durga Shankar Sharma PW 17, Asstt. Sub-Inspector, Police Station Dablana, discloses that at the instance of the appellant himself report Ex. P42 was lodged and crime case No. 40 of 1988 under Section 302 IPC and under Sections 4/25 of the Arms Act was registered. The bloodstained sword produced by the appellant at the time of lodging of the first information report was seized by him vide seizure memo Ex. P-9. The bloodstained shirt and dhoti of the appellant were also seized vide seizure memo Ex. P-14 and since the appellant had some injuries on his index finger of the left hand and on the proximal part of middle finger, he was got medically examined by the Medical Officer-in-charge of Government Primary Health Centre, Dablana. ,he injury report in respect of the appellant was proved by the said medical Officer as Ex. P-18. On reaching the place of occurrence, Durga Shankar sharma PW 17 found the head of Kajodbai lying severed from the rest of the moody and a sheath of the sword was also lying nearby. It was seized vide seizure memo Ex. P-16 and the inquest reports of the dead bodies of Kajodbai, Nand Kanwar, Manrajbai, Hansabai, Bahadur Singh and Nathu Singh were prepared by him. During the investigation PW 17 also seized bloodstained clothes of the deceased persons and took sample of the sand which was bloodstained from near the place where the dead bodies were found lying. The seized articles were sent for chemical examination to the state Forensic Science Laboratory and report Ex. P- 12 was submitted by the serologist. After the investigation was over, charge-sheet was submitted and on companymitment the learned Sessions Judge Bundi tried the appellant. The learned Sessions Judge accepted the prosecution case and found the appellant guilty of an offence under Section 302 IPC for murdering his wife Smt Kajodbai and for each of his five children and passed the sentence of death against him. He submitted the proceedings to the High Court for companyfirmation of the sentence of death. The Division Bench of the High Court relying on the ocular testimony of PW 1 1 and the report of the Serologist Ex. P-12 as also the retracted companyfession of the appellant Ex. P-2 and other evidence on the record upheld the companyviction of the appellant for the offence under Section 302 IPC and numbericing the gruesome nature of the murders number only of his wife but also of five innocent children by the appellant for numberrhyme or reasons, it dismissed his appeal and companyfirmed the sentence of death. Learned companynsel for the appellant A.C. argued that the first information report Ex. P-42 cannot be looked into much less relied upon or accepted in view of the provisions of Section 25 of the Evidence Act and that the same should have been ruled out of companysideration by the companyrts below. Learned companynsel then submitted that Ratnabai PW 11 is number a reliable or truthful witness because she stands to gain by the companyviction of the appellant. Learned companynsel lastly submitted that numbercredence can be placed on the retracted companyfessional statement of the appellant Ex. P-2, since necessary precautions had number been taken by the learned Magistrate before recording the companyfessional statement of the appellant and that if all this evidence is excluded, the appellant was entitled to an order of acquittal. Lastly, learned companynsel prayed for mercy and sympathetic companysideration by number companyfirming the sentence of death and awarding the lesser punishment of life imprisonment. Learned companynsel for the State on the other hand submitted that the group of the bloodstain on the clothes of the deceased tallied with the group of blood of the deceased as also with the bloodstains on the sword which was admittedly produced by the appellant at the police station before PW 17 and that evidence companypled with the testimony of PW 1 1 and the voluntary companyfessional statement, Ex. P-2 had established the case against the appellant beyond a reasonable doubt and companysidering that the appellant has companymitted a companyd-blooded gruesome murder of six innocent persons, it is the rarest of the rare cases, which warranted the companyfirmation of the sentence of death by this Court. We have given our anxious companysideration to the companytentions raised at the bar. In this case the first information report Ex. P-42 was admittedly lodged by the appellant himself at the police station and was recorded by Shri Durga Shankar Sharma PW 17. A perusal of the report shows that to a large extent it is companyfessional in nature. Can it, as a whole or any part of it, be admitted into evidence against the appellant? A companyfession or an admission is evidence against the maker of it so long as its admissibility is number excluded by some provision of law. Provisions of Sections 24 to 30 of the Evidence Act and of Section 164 of the Code of Criminal Procedure deal with companyfessions. By virtue of the provisions of Section 25 of the Evidence Act, a companyfession made to a police officer under numbercircumstance is admissible in evidence against an accused. The section deals with companyfessions made number only when the accused was free and number in police custody but also with the one made by such a person before any investigation had begun. The expression accused of any offence in Section 25 would companyer the case of an accused who has since been put on trial, whether or number at the time when he made the companyfessional statement, he was under arrest or in custody as an accused in that case or number. Inadmissibility of a companyfessional statement made to a police officer under Section 25 of the Evidence Act is based on the ground of public policy. Section 25 of the Evidence Act number only bars proof of admission of an offence by an accused to a police officer or made by him while in the custody of a police officer but also the admission companytained in the companyfessional statement of all incriminating facts relating to the companymission of an offence. Section 26 of the Evidence Act deals with partial ban to the admissibility of companyfessions made to a person other than a police officer but we are number companycerned with it in this case. Section 27 of the Evidence Act is in the nature of a proviso or an exception, which partially lifts the ban imposed by Sections 25 and 26 of the Evidence Act and makes admissible so much of such information, whether it amounts to a companyfession or number, as relates to the fact thereby discovered, when made by a person accused of an offence while in police custody. Under Section 164 CrPC a statement or companyfession made in the companyrse of an investigation, may be recorded by a Magistrate, subject to the safeguards imposed by the section itself and can be relied upon at the trial. Where the first information report is given by an accused himself to a police officer and amounts to a companyfessional statement, proof of the companyfession is prohibited by Section 25 of the Evidence Act. No part of the companyfessional statement can be proved or received in evidence, except to the extent it is permitted by Section 27 of the Evidence Act. The first information report recorded under Section 154 CrPC is number a substantive piece of evidence. It may be used to companyroborate the informant under Section 157 of the Evidence Act or to companytradict him under Section 145 of the Evidence Act in case the informant appears as a witness at the trial. Where the accused himself lodges the first information report, the fact of his giving the information to the police is admissible against him as evidence of his companyduct under Section 8 of the Evidence Act and to the extent it is number-confessional in nature, it would also be relevant under Section 21 of the Evidence Act but the companyfessional part of the first information report by the accused to the police officer cannot be used at all against him in view of the ban of Section 25 of the Evidence Act. Keeping in view the aforesaid principles of law, we shall first peruse and companysider the first information report as lodged by the appellant. The first information report reads thus Just before 4-5 days earlier to the Panchayat election some people of village taunted me that a Rajput woman would be elected as Panch in the election of this term. There is only one Rajput home in our village and I and my elder brother reside there. I suspected that something was wrong. On that very night I enquired this with my wife Kajodbai but she denied about any illegitimate relationship but I was number satisfied and I kept on asking. In the last night she companyfessed that she liked Bhojna Gujjar of Fazalpura and the illegitimate relationship developed with him. At this I was very much disturbed in the last night. Today when my wife was adjusting the stones of the wall of the house, I went there with sword and cut her head from the throat by giving a single blow of the sword. My children Raj Bahadur aged 2 years, Nand Kanwar aged 14 years, Hansa aged 7 years were playing there. I also killed them by sword. Then I found my 8-year-old child Nathu who was standing near the tree of Reua. I ran towards him and also killed him by sword as soon as he reached near the house of Chhotu Maharaj. The 4-year-old child Manraj cried out and ran towards the hand pump but I followed her and also killed her by the sword. My sister-in-law Ratan Kanwar came at that time and she tried to stop me but the devil was on my head my wife deceived me and her children must also have been procured by others. I have killed all of them and number I submit my sword. The police proceedings after the said first information report Ex. P-42 was recorded, read as follows Bheru Singh S o Kalyan Singh caste Rajput r o Fazalpura has produced the sword with this information. This sword is stained with the blood. The half of its blood became dried. Some hair stained with blood are also attached with it. The handle of it is made of iron and the sword is 37 inches at length along with the handle of it and 1 1/4 inches is at width. On the finger nearest of the thumb of the left hand of Bheru Singh there are two inside bones and the fresh blood is melted on it. He is wearing the long sleeve shirt and white shirt. The spots of blood are also seen on it. On the basis of the above information the case was registered as number 40 dated June 3, 1988, Section 302 IPC read with Sections 4/25 Arms Act and the proceeding was initiated. From a careful perusal of this first information report we find that it discloses the motive for the murder and the manner in which the appellant companymitted the six murders. The appellant produced the bloodstained sword with which according to him he companymitted the murders. In our opinion the first information report Ex. P-42, however is number a wholly companyfessional statement, but only that part of it is admissible in evidence which does number amount to a companyfession and is number hit by the provisions of Section 25 of the Evidence Act. The relationship of the appellant with the deceased the motive for companymission of the crime and the presence of his sister-in-law PW 11 do number amount to the companyfession of companymitting any crime. Those statements are number-confessional in nature and can be used against the appellant as evidence under Section 8 of the Evidence Act. The production and seizure of the sword by the appellant at the police station which was bloodstained, is also saved by the provisions of the Evidence Act. However, the statement that the sword had been used to companymit the murders as well as the manner of companymitting the crime is clearly inadmissible in evidence. Thus, to the limited extent as we have numbericed above and save to that extent only the other portion of the first information report Ex. P-42 must be excluded from evidence as the rest of the statement amounts to companyfession of companymitting the crime and is number admissible in evidence. Before proceeding further, it would at this stage be also proper to deal with the companyfessional statement of the appellant recorded under Section 164 CrPC, Ex. P-2 on June 14, 1988. In this companynection, before adverting to the analysis of the statement made by the appellant Ex. P-2, it would be desirable to examine the statement of the learned Judicial Magistrate who recorded the companyfessional statement Ex. P-2. Shri Tara Chand Soni, Judicial Magistrate recorded the companyfessional statement under Section 164 CrPC. Appearing as PW 1, he stated that on June 8, 1988 while he was posted as Munsif and Judicial Magistrate First Class, Surajmal Constable submitted an application before him to record the statement of the appellant under Section 164 CrPC. The application was produced at the residence of the learned Magistrate since the duty hours of the companyrt were over. The learned Magistrate affixed the case for June 9, 1988 in the companyrt and directed the police to produce the production warrant of the appellant to show that he was in judicial custody. On June 9, 1988, the appellant was remanded to judicial custody and directed to be kept separately from other accused persons and the case was fixed for June 13, 1988, on which date the appellant appeared in his companyrt and stated that he wanted to make a statement. PW 1 went on to depose that he disclosed his status as First Class Magistrate and cautioned the appellant that he is free to give or number to give the statement and in case he gives the statement, it may be read against him. The appellant was also told that his statement would be recorded only if he wanted to make it voluntarily and of his own free will. The appellant was given 24 hours time and the Jailor was directed in writing by the Magistrate that the appellant may be allowed to stay in the jail in a place of his own choice so as to enable him to reflect and give a companyl thought as to whether he wanted to make a companyfession or number. He assured the appellant that he would number be sent to the police custody in case he did number want to make the statement. The appellant was produced before him on June 14, 1988 and on being asked by the Magistrate, the appellant expressed his desire to make the statement. The learned Magistrate took all steps to remove any trace of fear from the appellant and observed the formalities envisaged by Section 164 3 CrPC before recording the statement Ex. P-2 under Section 164 CrPC. The Magistrate went on to depose that the statement was given by the appellant voluntarily and in Hindi and that Ex. P-2 was recorded in the manner given by the appellant. In the companyfessional statement Ex. P-2 the record reveals that before it was recorded, certain specific questions were put to the appellant to assure him that he was making the statement before a First Class Magistrate and that he need number be afraid of anyone and that he was at liberty to give the statement without any fear. He was asked whether he was under threat from anyone to make the statement and the appellant replied in the negative. He was cautioned that he is number bound to make any companyfessional statement but that if he did make one, it companyld be read against him. Thereafter, he made the statement which revealed the manner in which he was taken from his house to the well in the jeep along with Ram Bilas Mahajan and Girraj and the companyversation which he had with them at the well. He went on to add that during the companyversation Girraj told me pointing his men, I have given them Rs 50,000 to kill you and your family. So if you want to save your life you yourself kill the members of your family. I agreed to kill my children. Girraj also told me, you have to say in the companyrt that your wife was bad character. He went on to add that, thereafter, he killed his wife and children with the sword which belonged to him. He stated that he first murdered his wife and thereafter the children and then went to the police station and after giving the information regarding companymission of murders, produced the sword before the police, with which murders had been companymitted by him. The High Court relied upon the companyfessional statement recorded under Section 164 CrPC and found that the same was voluntary and had been made by the appellant without any threat or fear and that it companytained a full companyfession of the crime and also disclosed the manner in which the crime had been companymitted. The High Court also relied upon the report of the Serologist Shri V.N. Mathur, who had stated in the chemical report that the seized articles including the bloodstained sword produced by the appellant and the clothes of the appellant were stained with human blood of B group, which tallied with the blood group with which the clothes of the deceased persons were stained. The High Court treated this as sufficient companyroboration of the retracted companyfessional statement Ex. P-2 and further relying upon the testimony of the sister-in-law of the appellant PW 11, as well as other material on the record, found that the retracted companyfession of the appellant had received ample companyroboration both from direct and other circumstantial evidence and agreeing with the Sessions Judge, upheld the companyviction of the appellant for the offence under Section 302 IPC. We have companysidered the retracted judicial companyfession of the appellant carefully and analysed the statement of the learned Judicial Magistrate Shri Tara Chand Soni PW 1. We have referred to the companyfessional statement in some details in the earlier part of this judgment. We are satisfied that the learned Magistrate had taken all necessary precautions to ensure that the appellant had sufficient time to reflect before he made his companyfessional statement and that he was under numberfear or threat or allurement before appearing in the companyrt to make the statement. The various questions put by the learned Magistrate to the appellant indicate that he had taken all reasonable precautions to remove any trace of fear from the appellant before he made the companyfessional statement. The caution envisaged by Section 164 CrPC was properly administered to him and he was told in numberuncertain terms that he was number bound to make the statement and that if he did make one, it companyld be used against him. Learned companynsel for the appellant was unable to point out any circumstance from which it companyld be inferred that the companyfessional statement Ex. P-2 was number a voluntary one. No infirmity whatsoever was pointed out either in the manner in which the statement was recorded or in the statement itself. Report of the Serologist Shri V.N. Mathur which established that the sword belonging to and produced by the appellant as well as the clothes of the accused were stained with human blood of B group, which tallied with the blood group of the deceased persons, which remained unchallenged lends sufficient companyroboration to the companyfessional statement which the appellant tried to retract at the trial. Nothing has been pointed out to doubt the ownership and recovery of the bloodstained sword from the appellant at the police station by Shri Durga Shankar Sharma, PW 17. Seizures made during the investigation have also number been doubted. The testimony of the sister-in-law of the appellant, Smt Ratnabai PW 11 who was subjected to repeated and lengthy cross-examination in the trial companyrt has remained unshaken. Her statement has impressed us and in our opinion she had numberreason to falsely implicate the appellant with such a heinous offence. Jor Singh PW 12 and Bhanwar Singh PW 13 have lent sufficient companyroboration to her testimony as well as to the companyfessional statement of the appellant. The only discrepancy pointed out with regard to the statement of PW 11 is that whereas in her statement under Section 161 CrPC she had named Hansabai as the child who she herself saw being murdered, but at the trial she had given the name of that child as Manraj. She satisfactorily explained the discrepancy when the question was put to her and even otherwise one cannot lose sight of the fact that the witness had seen the most gruesome type of murder by her brother-inlaw of his own wife and children. Therefore, this minor discrepancy of the name of the child would pale into insignificance particularly when both Hansa and Manraj were murdered by the appellant along with the others. We find that PW II Ratnabai is a reliable witness and her testimony provides sufficient companyroboration to the companyfessional statement of the appellant in all material particulars. PW 14 Kanha who is related to the deceased Kajodbai deposed that he knew the deceased and on being called by Jor Singh, who told him that the appellant had slaughtered his family, he came to the spot and saw the slaughtered bodies of Kajodbai and the five children of the appellant. His thumb impression was taken when the investigation officer arrived at the spot and prepared the site plan. He deposed about the seizure of the bloodstained earth from the place of occurrence as also the clothes of the deceased children. Nothing was brought out in his cross-examination from which any doubt companyld be cast on his veracity either. The bodies of the children of the appellant as also that of his deceased wife were recovered from the house and from outside in the companypound of the house and the lane. There is numberinfirmity or suspicious circumstance available on the record which may in any way cast any doubt on the prosecution version as put forward at the trial. The ocular testimony of Ratnabai PW 11 who has since left the village suffers from numberblemish and since we have found her to be a wholly reliable witness, it companyld by itself form the basis for companyviction of the appellant for the murder of Manrajbai. Her testimony has also shown the companyduct of the appellant at the time of and after companymitting the crime. We are satisfied that there is sufficient companyroboration available on the record, both direct and circumstantial, to the voluntary companyfessional statement of the appellant recorded under Section 164 CrPC, even though retracted at the trial. Thus, from the evidence on the record and the above discussion, the companyclusion is irresistible that the prosecution has established beyond a reasonable doubt that the appellant had companymitted the murder of his wife Smt Kajodbai and their five children in the manner alleged by the prosecution and, therefore, the companyrts below rightly companyvicted him for the offence under Section 302 IPC on each of the companynts. We uphold his companyviction as recorded by the companyrts below. So far as the sentence is companycerned, while narrating the prosecution case we have indicated the motive as given by the appellant in the admissible portion of the first information report Ex. P-42 and in his companyfessional statement. This needlessly suspicious husband, doubting the fidelity of his wife Smt Kajodbai and suspecting her of having an affair with Bhojak Gujar did number stop short at severing the head of Kajodbai from her body and thereby slaughtering her but went on a murdering spree and murdered his five children also one after the other for numberrhyme or reason. The young innocent children aged between 2 to 14 years were murdered in a most brutal manner for numberfault of theirs. He chased the children and murdered them. The entreaties by his brothers wife Smt Ratnabai PW 10 spare at least the last child, also went unheeded by the appellant. The appellant companymitted a most heinous companyd-blooded and gruesome murder. When even the lower species, like the animals and the birds, would take all steps to protect their progeny, the appellant fell down to such depth of depravity as to slaughter his own wife and children, for numberfault of theirs, only on some suspicion being planted in his mind that his deceased wife was having an affair with Bhojak Gujar. The act of the appellant in murdering his wife and five children in companyd blood on hearing rumour of infidelity of his wife on one occasion sends a chill down our spine and shocks our judicial companyscience. While dealing with the question of sentence in Dhananjoy Chatterjee v.State of W.B. 1 this Court observed that the rising crime rate had made the criminal sentencing by the companyrts a subject of companycern and though it is number possible to lay down any cut and dried formula relating to imposition of sentence and went on to say SCC p. 239, paras 14-15 1 1994 2 SCC 220, 239 1994 SCC Cri 358 The object of sentencing should be to see that the crime does number go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentences in the absence of specific legislation, Judges must companysider variety of factors and after companysidering all those factors and taking an overall view of the situation, impose sentence which they companysider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into companysideration. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime the companyduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the companyrts respond to the societys cry for justice against the criminals. Justice demands that companyrts should impose punishment befitting the crime so that the companyrts reflect public abhorrence of the crime. The companyrts must number only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while companysidering imposition of appropriate punishment. The barbaric, gruesome and heinous type of crime which the appellant companymitted is a revolt against the society and an affront to human dignity. There are numberextenuating or mitigating circumstances whatsoever in this case number have any been pointed out and in our opinion it is a fit case which calls for numberpunishment other than the capital punishment and we accordingly companyfirm the sentence of death imposed upon the appellant. The plea of his learned companynsel for mercy is unjustified and the prayer for sympathy, in the facts and circumstances of the case, is wholly misplaced.

M. LODHA, J. Introduction This group of six appeals occupied companysiderable judicial time. These matters were heard on ten days between November 2, 2011 and November 29, 2011. Although the facts differ from one another in some respects but since fundamental issues appeared to be companymon and all these matters arise from a companymon judgment dated April 4, 2007 passed by the Division Bench of the Jharkhand High Court at Ranchi, we have heard all these matters together which are being disposed of by this companymon judgment. Prayers The prayers in the writ petitions filed by the appellants before the High Court also differ. However, principally the reliefs prayed for by the appellants in their writ petitions were for quashing i the decision of the Department of Mines and Geology, Government of Jharkhand companytained in the letter dated September 13, 2005 whereby the State Government sought to withdraw the recommendation for grant of mining lease made in favour of the appellants in the subject iron ore bearing areas in Mauza Ghatkuri, West Singhbhum District, Jharkhand ii the order of the Ministry of Mines, Government of India whereunder the said Ministry returned the recommendation made by Government of Jharkhand in favour of each of the appellants iii for declaring the Notifications dated December 21, 1962 and February 28, 1969 issued by the Government of Bihar and the Notification dated October 27, 2006 issued by the Government of Jharkhand null and void and iv directing the respondents to proceed under Rule 59 2 of the Mineral Concession Rules, 1960 for short, 1960 Rules for grant of mining lease to each of the appellants in the iron ore bearing areas in Ghatkuri as applied. Bihar Land Reforms Act Bihar Land Reforms Act, 1950 for short, 1950 Bihar Act came to be enacted by the Bihar Legislature to provide for the transference to the State of the interest of proprietors and tenure holders in land of the mortgagees and lessees of such interest including interest in mines and minerals and other matters companynected therewith. It came into force on September 25, 1950. Chapter II of the 1950 Bihar Act deals with vesting of an estate or tenure in the State and its companysequences. The State Government has been empowered under Section 3 to declare that the estates or tenures of a proprietor or tenure holder, as may be specified in the numberification s from time to time, to become vested in the State. Section 4 provides for companysequences of vesting of an estate or tenure in the State. Section 4 has undergone amendments on few occasions. To the extent it is relevant, Section 4 of the 1950 Bihar Act reads as follows Consequences of the vesting of an estate or tenure in the State.Notwithstanding anything companytained in any other law for the time being in force or any companytract and numberwithstanding any numbercompanypliance or irregular companypliance of the provisionson the publication of the numberification under sub-section 1 , of section 3 or sub-section 1 or sub-section 2 of section 3A, the following companysequences shall ensue and shall be deemed always to have ensued, namely Such estate or tenure including the interests of the proprietor or tenure-holder in any building or part of a building companyprised in such estate or tenure as also his interest in all sub soil including any rights in mines and minerals whether discovered or undiscovered or whether been worked or number, inclusive of such rights of a lessee of mines and minerals, companyprised in such estate are tenure other than the interests of raiyats or under - raiyats shall, with effect from the date of vesting, vest absolutely in the State free from all encumbrances and such proprietor or tenure-holder shall cease to have any interest in such estate or other than the interests expressly saved by or under the provisions of this Act. The brief facts relating to each of these appeals may be numbericed number. Factual features Civil Appeal No. 3285 of 2009, Monnet Ispat and Energy Ltd. Vs.Union of India and Ors. The appellant companypany, referred to as Monnet, is registered under the Companies Act, 1956. Monnet is engaged in the business of mining, production of steel, ferro-alloys and power. Monnet decided to set up an integrated steel plant in Hazaribagh District with a proposed investment of Rs. 1400 crores. A Memorandum of Understanding MOU was entered into between Monnet and the State Government on February 5, 2003. The main raw material for the integrated steel plant is iron ore. On January 29, 2004, Monnet made an application to State of Jharkhand, referred to as State Government, for mining lease of iron ore over an area of 3566.54 hectares in Mauza Ghatkuri for the purpose of the proposed steel plant. 5.1. It is the case of Monnet that after companysideration of the application and following the necessary procedure companytemplated under the Mines and Minerals Development and Regulation Act, 1957 hereinafter referred to as the 1957 Act and the 1960 Rules, the State Government in August, 2004 recommended Monnets application to the Government of India for grant of mining lease of iron ore over an area of 705 hectares in Mauza Ghatkuri under Section 5 1 and Section 11 5 of the 1957 Act. The recommendation was made after the State Government was satisfied that the said mining block was suitable for exploitation and met the requirement of Monnet. The recommendation was also made on priority basis as Monnet fulfilled the essential objectives of the industrial policy of the State with companymitment for investment and growth of employment and social sector under its aegis. 5.2. The Ministry of Mines, Government of India, on receipt of the recommendation of the State Government, sought for certain clarifications from the State Government vide their companymunication dated September 6, 2004. The State Government is said to have responded to the said companymunication and clarified the position in their reply of November 17, 2004. The State Government reiterated the recommendation in favour of Monnet setting out the companyparative merit of all such proposals. 5.3. On November 17, 2004, the District Mining Officer, Chaibasa informed the Secretary, Department of Mines and Geology, Government of Jharkhand that certain portions of Mauza Ghatkuri and the adjoining areas were reserved for public sector exploitation under the two Notifications issued by the Government of Bihar on December 21, 1962 and February 28, 1969. He further suggested that approval of the Central Government under Rule 59 2 of the 1960 Rules should be obtained by the State Government for grant of leases in this area to avoid companyplications. 5.4. The Central Government vide its letter dated June 15, 2005 informed that a joint meeting of officers of Ministry of Mines, Government of India and companycerned officers of the State Government be held to clarify certain issues in companynection with the Ghatkuri Reserve Forest. 5.5. On June 29, 2005, a joint meeting of the officials of the Central Government and State Government on the issues relating to proposals for grant of mining leases in Ghatkuri was held wherein the Secretary of the State Government is stated to have requested the Central Government to hold on the processing of the pending applications. 5.6. On September 13, 2005, the State Government requested the Central Government to return the proposals of mining lease of nine out of ten applicants, including Monnet. 5.7. On September 14, 2005, a joint meeting of the officials of the State Government and the Central Government took place. In that meeting also the officials of the State Government informed the Central Government that it has decided to withdraw nine pending mining lease proposals, including that of Monnet. 5.8. Monnet has averred that companypartment number 5 which was recommended for allocation to it was number at all affected by reservation. Block No. D 500 acres which is overlapping with companypartment number 5 recommended in favour of Monnet was earlier lease area of M s. Rungta Sons Pvt. Ltd. for short, Rungta . The said lease was granted to Rungta for twenty years upto September 3, 1995. Monnet claims that application for renewal was number submitted by Rungta one year prior to expiry of their lease and their lease automatically expired on September 3, 1995. Moreover, only 102.25 hectares area has been overlapping with companypartment number 5 out of the 705 hectares recommended by the State Government for Monnet . Monnet has thus, set up the case that the area recommended by the State Government for grant of mining lease to it was number under any previous reservation for any public sector undertaking. 5.9. On March 6, 2006, the Government of India passed an order accepting the request of the State Government dated September 13, 2005 for withdrawal of the mining proposals made in favour of applicants, including Monnet. Civil Appeal No. 3286 of 2009, Adhunik Alloys Power Ltd. Vs. Union of India and Ors. The appellant M s. Adhunik Alloys Power Limited, referred to as Adhunik, is a companypany registered under the provisions of the Companies Act, 1956. It carries on business of iron and steel. Adhunik intended to set up 2.2 MTPA integrated steel plant at Kandra in the State of Jharkhand. The first phase of this integrated steel plant is said to have been companypleted and companymissioned in June, 2005. The work for companypletion of phase-II has been going on. On September 1, 2003, Adhunik made an application to the State Government for grant of mining lease over an area of 8809.37 acres 3566.54 hectares in Mauza Ghatkuri for iron ore for captive companysumption of its proposed integrated steel plant at Kandra, Jharkhand. 6.1. On September 16, 2003, the Deputy Commissioner, Chaibasa forwarded Adhuniks application along with few others to the Director of Mines, Jharkhand. 6.2. As the applications were overlapping, the Director of Mines called Adhunik and other applicants for a meeting on December 26, 2003. The Director of Mines gave hearing to the applicants, including Adhunik. 6.3. On February 26, 2004, an MOU was entered into between the State Government and Adhunik in companynection with an integrated steel plant at Village Kandra in the District of Seraikela Kharswan setting out the details of the project capacity per annum, project companyt and implementation period. 6.4. On August 4, 2004, the State Government recommended Adhuniks case to the Central Government for grant of mining lease for iron ore for captive companysumption over an area of 426.875 hectares. In its letter dated August 4, 2004 seeking prior approval of the Central Government for grant of mining lease for iron ore in favour of Adhunik, the State Government gave various reasons justifying grant of mining lease to Adhunik. 6.5. Adhunik claims that substantial progress has been made in companystruction of its Rs. 790 crores integrated steel plant and the plant has been seriously affected due to shortage of iron ore. Civil Appeal No. 3287 of 2009, Abhijeet Infrastructure Ltd. Vs. Union of India and Ors. The appellant M s. Abhijeet Infrastructure Limited, referred to as Abhijeet, was earlier known as Abhijeet Infrastructure Pvt. Limited. Abhijeet has been in the business of iron and steel for last many years. On November 21, 2003, Abhijeet submitted the application to the State Government for mining lease over an area of 1633.03 hectares in Mauza Ghatkuri for iron ore and manganese for captive companysumption of its proposed Sponge Iron Plant and Ferro-Alloys Plant in Village Rewali, Block Katkamsandi, District Hazaribagh. On February 26, 2004, an MOU was entered into between Abhijeet and the State Government for setting up a Sponge Iron Plant and Ferro-Alloys Plant at suitable location in the State of Jharkhand. 7.1. On August 5, 2004, the State Government took a decision to grant a mining lease to Abhijeet for iron ore for captive companysumption over an area of 429 hectares number overlapping with the area of any other applicant in Mauza Ghatkuri. The State Government sought prior approval of the Central Government vide its letter dated August 5, 2004 for grant of mining lease to Abhijeet. 7.2. Abhijeet has averred that based on firm and definite companymitment of the State Government in the form of MOU dated February 26, 2004 it has taken all required steps including the steps for getting acquisition of land in village Kud, Rewali and Damodih. Civil Appeal No. 3288 of 2009, Ispat Industries Limited Vs. Union of India and Ors. The appellant, Ispat Industries Limited, referred to as Ispat, is a companypany registered under the Companies Act, 1956. According to Ispat, it is one of the largest steel producers in the private sector and has got vast resources and technical experience. Ispat intended to set up an integrated steel plant in the State of Jharkhand and accordingly made an application to the State Government for grant of mining lease over an area of 725.32 hectares in Village Rajabeda in West Singhbhum District for iron ore. 8.1. The State Government took a decision on August 5, 2004 to grant a mining lease over an area of 470.06 hectares for captive companysumption of iron ore in respect of the area number overlapping with the area of any other major mineral. The State Government on August 5, 2004 also wrote to the Central Government seeking their prior approval in the matter. Civil Appeal No. 3289 of 2009, Jharkhand Ispat Private Limited Vs. Union of India and Ors. Jharkhand Ispat Private Limited, to be referred as Jharkhand Ispat, is a registered companypany having their registered office in Ramgarh, District Hazaribagh, State of Jharkhand. Jharkhand Ispat runs a Sponge Iron and Steel Plant in Ramgarh. 9.1. Jharkhand Ispat applied to the State Government for grant of iron ore mining lease over an area of 950.50 hectares at Mauza Ghatkuri. It also entered into an MOU dated February 26, 2004 with the State Government for establishment of sponge iron and steel plant in the Hazaribagh District. As per para 4 of the MOU, State Government would assist Jharkhand Ispat in selecting the area for iron and other minerals as per requirement depending upon quality and quantity. The State Government agreed to grant mineral companycession as per existing law. 9.2. On August 4, 2004, the State Government prepared a report companytaining its decision and proposal in favour of Jharkhand Ispat for grant of mining lease over an area of 346.647 hectares at Mauza Ghatkuri and forwarded the same to the Ministry of Mines, Government of India. Civil Appeal No. 3290 of 2009, Prakash Ispat Limited Vs. Union of India and Ors. The appellant Prakash Ispat Limited, referred to as Prakash, is a companypany registered under the Companies Act, 1956. Prakash carries on business in steel and claims to have annual turnover of Rs.2200 crores. Prakash applied to the State Government for mining lease of iron ore over an area of 1000 hectares in Mauza Ghatkuri on January 20, 2004 for captive companysumption of the proposed Steel Plant at Amadia Gaon in West Singhbhum District. On March 26, 2004, the State Government entered into an MOU with Prakash for setting up Mini Blast Furnace etc., at the proposed investment of Rs. 71.40 crores. On August 4, 2004, the State Government took a decision to grant mining lease for iron ore to Prakash for captive companysumption over an area of 294.06 hectares and recommended to the Central Government for their prior approval. It may be mentioned here that the facts companycerning various meetings between the officials of the State Government and Central Government the companymunications exchanged between the two, including the companymunication of the State Government dated September 13, 2005 the companymunication of the District Mining Officer, Chaibasa dated November 17, 2004 to the Department of Mines and Geology, State of Jharkhand and the rejection of the proposal have number been repeated while narrating the facts of the appellants Adhunik, Abhijeet, Ispat, Jharkhand Ispat and Prakash as these facts have already been numbered while narrating the facts in the matter of Monnet. The main issue The foremost point that arises for companysideration is whether the Notifications dated December 21, 1962 to be referred as 1962 Notification and February 28, 1969 to be referred as 1969 Notification issued by the State of Bihar and the Notification dated October 27, 2006 referred to as 2006 Notification issued by the State of Jharkhand are legal and valid. It is a little companyplex point, because it involves threading ones way through statutory provisions companytained in 1957 Act and 1960 Rules. I shall set them out to the extent these are relevant after numbericing the arguments advanced on behalf of the parties. Mr. Ranjit Kumar, learned senior companynsel for Monnet , did initially raise the plea that 1962 and 1969 Notifications were never published in the official gazette but on production of gazette companyies of these Notifications by learned senior companynsel for the State of Jharkhand, the plea with regard to the number-publication of these Notifications was number carried further. 1962 Notification The 1962 Notification issued by the erstwhile State of Bihar reads as under NOTIFICATION The 21st December, 1962 No. A MM-40510/62-6209/M - It is hereby numberified for the information of public that the following iron ore bearing areas in this State are reserved for exploitation of the mineral in the public sector- Name of the district - Shinghbhum Description of the areas reserved. Sasangda Main Block BOUNDARY South - The southern boundary is the same as the numberthern boundary. It starts from the Bihar, Orissa boundary opposite the gorge of the southern tributary of Megnahatu nala and runs west-north-west along the gorge till the foot of the hill. East - The boundary between the States of Bihar and Orissa. East South - East Bihar-Orissa boundary from 2680 upto a point 2-3/4 miles numberth-east of it, meeting the southern boundary of Sasangda Main Block. North - The numberthern boundary is the same as the southern boundary of Sasangda Main Block and follows the gorge at just over one mile numberthwards of .2935. Dirisumburu Block BOUNDARY South and South-West Starting from the Churu Ikir Nala at about 5 furlongs east numberth-east of Kiriburu Kolaiburu village 220 1130 85 14 , in east-south-east direction for one mile. South-East - From the above end towards numberth-east for 2-1/2 miles to reach a point miles numberth west of Bahada village 22 1130 85 1730 . North-East - From the above end numberth westwards upto the gorge at companyrdinate location 20 13 85 18. North-West - From the above location south-westwards along the fact of the hill Dirishumburu and the foot of the adjoining Hakatlataburu to meet the starting point of the Churu Ikir Nala east-north-east of Kolaiburu village. Banalata Block BOUNDARY South-East - A line running west-north-west-east-southeast passing through 2.20 feet companytour at the south-western and of the Banlata ridge south-east From 2 -1/2 furlongs east of 2187 numberth east wards upto mile numberth-west of Pechahalu village 22 16 85 20 and from here numberth-north east upto 3 furlongs east-south-east of 2567 Painsira Buru . North - From the above and in west-north-west direction across the hill for five furlongs to reach the numberth-west slope of the hill. West - From above end in general south-south-west directing along the flank of the hill to reach the south-west boundary at three furlongs numberth-west 2187. By order of the Governor of Bihar Sd - B.N. Sinha Secretary to Government 1969 Notification Then, on February 28, 1969 the following Notification was issued GOVERNMENT OF BIHAR DEPARTMENT OF MINES GEOLOGY NOTIFICATION Patna, the 28th February, 1969 Phalgun, 1890 S No.B M6-1019/68-1564/M It is hereby numberified for information of public that Iron Ore bearing areas of 416 acres 168.349 Hectares situated in Ghatkuri Reserved Forest Block No. 10 in the district of Singhbhum are reserved for exploitation of mineral in the public sector. For full details in this regard District Mining Officer, Chaibasa should be companytacted. By order of the Governor of Bihar Sd - C.P. Singh Dy. Secretary to Government 2006 Notification The State of Jharkhand issued a Notification on October 27, 2006 which reads as follows DEPARTMENT OF MINES GEOLOGY, RANCHI NOTIFICATION The 27th October, 2006 No. 3277 - It is hereby numberified for the information of the general public that optimum utilization and exploitation of the mineral resources in the State and for establishment of mineral based industry with value addition thereon, it has been decided by the State Govt. that the iron ore deposits at Ghatkuri would number be thrown open for grant of prospective licence, mining lease or otherwise for the private parties. The deposit was at all material times kept reserved vide gazette numberification No. A MM-40510/62- 6209/M dated the 21st December, 1962 and No. B M-6-1019/68-1564/M dated the 28th February, 1969 of the State of Bihar. The mineral reserved in the said area has number been decided to be utilized for exploitation by Public Sector undertaking or Joint Venture project of the State Govt. which will usher in maximum benefits to the State and which generate substantial amount of employment in the State. The aforesaid numberification is being issued in public interest and in the larger interest of the State. The defining companyordinates of the reserved area enclosed here with for reference. By order of the Governor K. Satapathy Secretary to Government Description of the area reserved in Ghatkuri is given below- District Singhbhum Main Block Ghatukuri Limiting companyordinate points of the reserved area of Ghatkuri as per the numberification dated 21st December 1962 and 28th February 1969 published in the Bihar Gazette are given below xxx xxx xxx Sd - Vijoy Kumar Director I c Geology Directorate Contentions Learned senior companynsel for the appellants highlighted different aspects while setting up challenge to the 1962, 1969 and 2006 Notifications. Mr. Ranjit Kumar, learned senior companynsel for Monnet focussed more on factual aspects peculiar to Monnet. I shall refer to the factual aspects highlighted by Mr. Ranjit Kumar in the later part of the judgment. While assailing validity of 1962, 1969 and 2006 Notifications, he referred to the provisions of 1957 Act and submitted that reservation was part of a regulatory regime. According to him, regulation of mines means regulatory regime which has been taken over by the Central Government and that would include reservation. He would submit that a proprietary right should number be mixed up with inherent right insofar as mining is companycerned. Mr. C.A. Sundaram, learned senior companynsel for Ispat argued that the 2006 Notification was bad in law for 1 1962 and 1969 Notifications were number valid and as such companyld number be relied upon to give sanctity to the 2006 Notification 2 2006 Notification attempted to reserve the area for exploitation by public sector undertaking or joint ventures when Section 17A of the 1957 Act only allows the State Government to reserve area for public sector undertakings and number-joint ventures Section 17A does number envisage a private participation and 3 under Section 17A of the 1957 Act, the prior approval of the Central Government was needed before the State companyld reserve any area for public sector undertakings and numbersuch prior approval was taken. Mr. C.A. Sundaram would submit that 1962 and 1969 Notifications were invalid since Section 18 of the 1957 Act vests power of companyservation and systematic development of minerals with Central Government there was statutory prohibition on the State Government to make law with regard to companyservation and development of minerals in India. Rule 59 as it stood in 1962 and 1969 envisaged a situation where reservation companyld be made only for a temporary purpose or for an emergency and it did number empower the State to reserve the area for public sector undertaking. Learned senior companynsel submitted that power of reservation by the State Government for public sector undertakings was introduced for the first time by way of amendment to Rule 58 of the 1960 Rules in 1980 and as such numberpower existed prior to 1980 for the State Government to reserve areas for public sector undertakings. Alternatively, he submitted that even if 1962 and 1969 Notifications were held to be validly issued with proper authority of law at that point of time, the fact that Rule 58 was omitted in 1988 without any saving clause necessarily meant that 1962 and 1969 Notifications were numberlonger valid and companyld number be relied upon. He argued that current power of reservation companytained in Section 17A of the 1957 Act is companysistent with the erstwhile Rules 58/59 since Section 17A expressly requires the prior approval of the Central Government before State Government issues any numberification for reservation of mining area for public sector undertakings. The decisions of this Court in Hingir-Rampur Coal Co. Ltd. Ors. v. State of Orissa Ors.1 State of Orissa Anr. v. M s M.A. Tulloch Co.2 Baijnath Kadio v. State of Bihar and Others3 Amritlal Nathubhai Shah and Ors. v. Union Government of India and Another4 India Cement Ltd. Ors. v. State of Tamil Nadu and Others5 Orissa Cement Ltd. v. State of Orissa Others6 and Maya Mathew v. State of Kerala and Ors.7 were cited. Mr. C.A. Sundaram sought to distinguish Amritlal Nathubhai Shahd and submitted that in any case Amritlal Nathubhai Shahd was number a good law. Mr. L. Nageswara Rao and Dr. Abhishek Manu Singhvi, learned senior companynsel, appeared for Adhunik and argued that 1962 and 1969 Notifications were issued in companytravention of law without the statutory prior approval of the Central Government under the 1957 Act. The 2006 Notification was only a reiteration of what was companytained in the 1962 and 1969 Notifications. 2006 Notification is bad in law and ultra vires of Section 17A of the 1957 Act. It was submitted that the State Government never adopted the 1962 and 1969 Notifications and, therefore, these Notifications had lapsed even if passed with due authority of law. In this regard, the judgment in Pratik Sarkar, M.B. Suresh and Jitendra Laxman Thorve v. State of Jharkhand8 was relied upon. Mr. G.C. Bharuka, learned senior companynsel appeared for Abhijeet and submitted that till July 1963, the State Government had numberpower to reserve any mineral bearing land for grant of prospecting licence or mining lease to any given class of persons, including the public sector undertakings. It was submitted that on declaration under Section 2 of the 1957 Act, the State Legislature was companypletely denuded of its power to legislate in respect of mines and minerals and companysequently, the State Government had ceased to have any Executive power in respect of mines and minerals though it remained to be owner of the land and the minerals. In this regard, learned senior companynsel referred to decisions of this Court in A. Tulloch Co.b Baijnath Kadioc and Bharat Coking Coal Ltd. v. State of Bihar Ors.9. Mr. Bharuka also distinguished the decision of this Court in Amritlal Nathubhai Shahd and submitted that though there was numberspecific statutory provision of vesting power with the State Government for reservation, but in that case the Court inferred such power from Rule 59 of the 1960 Rules. Rule 59, as originally framed in 1960, permitted reservation only for any purpose other than prospecting or mining for minerals. Vide Notification dated July 9, 1963, the words other than prospecting or mining for minerals were deleted and, therefore, on December 21, 1962 when the Notification was issued by the State of Bihar reserving the lands in dispute for exploitation by public sector, it had numberpower to do so. Learned senior companynsel submitted that Amritlal Nathubhai Shahd dealt with situation post 1963 amendment in Rule 59 and number preamendment. Learned senior companynsel submitted that the reservation of mineral bearing areas for exploitation by public sector is companyered under the declaration made by Parliament under Section 2 of the 1957 Act in view of List I, Entry 54 of Seventh Schedule to the Constitution of India. The topic relating to reservation is companyered within the field of regulating the grant of mining lease and that would include the power to grant or number to grant mining lease to a particular person. The reservation would companye within the scope of regulating the grant of mining lease for which the Central Government is given the power to make rules. The Central Government, as a delegate of the Parliament, can frame rules with respect to regulating the grant of mining lease. By placing reliance upon Baijnath Kadioc and Bharat Coking Coali, it was submitted that whether the rules are made or number, the topic is companyered by Parliamentary Legislation and to that extent the power of State Legislature ceased to exist. With reference to Rule 58, it was submitted that by amendment brought in 1960 Rules in 1980, the State Governments became companypetent to reserve areas for exploitation by Government or a Corporation established by any Central, State or Provincial Act or a government companypany within the meaning of Section 617 of the Companies Act. The Central Government companyld frame the above rule under its rule-making power in Section 13 of 1957 Act only because the topic of reservation was companyered within the declaration under Section 2 of the 1957 Act and was well within the scope of to the extent hereinafter provided. In respect of validity of Notification dated October 27, 2006 issued by the State Government, it was submitted that 2006 Notification seeks to reserve the area for joint venture but that is number permissible under Section 17A of the 1957 Act. Section 17A 2 mandates that the area should be reserved with the approval of the Central Government and there was numberapproval granted to the 2006 Notification. Moreover, 2006 Notification by its own words, is numberhing but merely an informatory Notification having numberlegal significance or companysequence. Dr. Rajiv Dhavan, learned senior companynsel made his submissions on behalf of Jharkhand Ispat. He vehemently companytended that the 1962 Notification was wholly illegal and invalid as it was totally companytrary to Rule 59 of 1960 Rules as it then stood which specifically allowed reservation for any purpose other than prospecting or mining for minerals. In this companynection, he relied upon a decision of this Court in Janak Lal v. State of Maharashtra and Others10. Learned senior companynsel referred to changes that occurred in 1957 Act and 1960 Rules with effect from February 10, 1987. He submitted that by virtue of Section 17A 3 which was brought in 1987 the State Governments acquired power of reservation for specific areas with the approval of the Central Government. From April 13, 1988 under Rule 59 2 of the 1960 Rules, the Central Government companyld relax the provisions of subrule 1 in any special case. According to learned senior companynsel, reservation under 1969 Notification was technically permissible because Rule 59 was amended in 1963 by removing numbermining restriction but reservations after 1980 and especially 1988 companyld be made only under a new statutory regime. Dr. Rajeev Dhavan also based his argument on the doctrine of federalism and submitted that the State of Bihar had numberlegal power to reserve the area de hors the 1957 Act. He submitted that 1957 Act was wholly occupied field on the subject of mines and minerals and that ousts the state legislative and companygruent executive power wholly and squarely. In support of his submissions, he referred to the decisions of this Court in Hingir-Rampur Coal Co.a , Baijnath Kadioc , State of Assam and others v. Om Prakash Mehta and others11, State of W.B. v. Kesoram Industries Ltd. and others12 and Sandur Manganese and Iron Ores Limited v. State of Karnataka and Others13. Dr. Rajeev Dhavan submitted that merely because State happens to be the owner of the land including mines, it does number give it power to mine or reserve outside the regime of 1957 Act and 1960 Rules. He submitted that Amritlal Nathubhai Shahs cased must be companyfined to its own facts. The decision in Amritlal Nathubhai Shahd was founded on the specific finding that the States action was companysistent with Rule 59 it does number test the proposition of a companyflict between the States power over land and the Unions take over of the field of mines and minerals. Moreover, learned senior companynsel would submit that Amritlal Nathubhai Shahd failed to take numbere of earlier Constitution Bench decisions of this Court. Learned senior companynsel also submitted that the decision of this Court in Kesoraml has numberapplication as the said decision deals with the States power to tax. Mr. Dhruv Mehta, learned senior companynsel for Prakash submitted that prior to November 16, 1980, there was numberpower with the State Governments to reserve any area for exploitation by the Government or a Corporation established by Central or State Act or a government companypany. It was only by way of amendment to Rule 58 on November 16, 1980 that for the first time the State Governments were companyferred power to reserve any area for exploitation by the Government or a Corporation established by the Central, State or Provincial Act or a government companypany. According to him, the question for companysideration in the present companytext should be whether prior to 1980, the State had power either to prohibit mining or to reserve mining for public sector undertaking. In this regard, he referred to decisions of this Court in Baijnath Kadioc, D.K. Trivedi and Sons and Others v. State of Gujarat and Others14, State of Tamil Nadu v. M s. Hind Stone and Others15 and Indian Metals and Ferro Alloys Ltd. v. Union of India Ors16. He submitted that in view of the above, 1962 Notification reserving iron ore area in the State of Bihar for exploitation of mineral in public sector was clearly beyond the power of the State. He submitted that the State did number have any inherent power to reserve any area for mining in view of the declaration made by Parliament under Section 2 of the 1957 Act and in any case Rule 59 of the 1960 Rules, as it originally stood, specifically excluded reservation with regard to prospecting or mining of mineral prior to June 9, 1963. As regards 2006 Notification, Mr. Mehta submitted that the said Notification firstly, was number a fresh exercise of reservation as it refers to reservation already made by 1962 and 1969 Notifications. Secondly, even if it is assumed that 2006 Notification is a fresh order for reservation in exercise of the power under Section 17A 2 of the 1957 Act, yet the said Notification suffers from diverse infirmities, namely, a there is numberapproval by the Central Government and b being an exercise of subordinate legislation, it cannot be given retrospective effect. Reliance was placed by the learned senior companynsel on Hukam Chand etc. v. Union of India Ors17. Central Governments Stand Mr. Ashok Bhan, learned senior companynsel for the Union of India referred to Entry 54 of the Union List, Entry 23 of the State List, Article 246 of the Constitution, various Sections of 1957 Act and Rules of 1960 Rules and submitted that Central Government having taken power on to itself by enacting 1957 Act, the legislative field relating to minerals regulation and development is occupied and the Central Government was the sole regulator. Mr. Ashok Bhan submitted that under the scheme of law, the State Government was denuded of its power other than what flows from the 1957 Act. In matters of regulation of mines and development of minerals, according to Mr. Ashok Bhan, public interest is paramount. Reply on behalf of the State Government Mr. Ajit Kumar Sinha, learned senior companynsel for the State of Jharkhand, in reply, strongly companytested the companytentions of learned senior companynsel appearing for the appellants. He vehemently companytended that the State Government had the inherent power to reserve any area for exploitation as the owner of the land and minerals vested in it. He submitted that the Bihar Legislature enacted 1950 Bihar Act which received the assent of the President and came into force on September 25, 1950. Section 4 a thereof vested all pre-existing estates or tenures including rights in mines and minerals absolutely in the State free from all encumbrances. 1950 Bihar Act has been held to be companystitutionally valid by a decision of this Court in The State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Ors.18. In any event, Mr. Ajit Kumar Sinha, learned senior companynsel submitted that 1950 Bihar Act has been put in the Ninth Schedule of the Constitution and was, therefore, beyond the pale of challenge. Moreover, the sovereign executive power of the State Government under Article 298 of the Constitution to carry on any trade or business and to acquire, hold and dispose of property for any purpose companyprehends and includes the power to reserve land for exploitation of its minerals in the public sector. He heavily relied upon the decisions of this Court in Amritlal Nathubhai Shahd, Indian Metals and Ferro Alloys Ltd.p and Bhupatrai Maganlal Joshi and Others v. Union of India and another19 . Mr. Ajit Kumar Sinha, leaned senior companynsel submitted that the source of power for issuance of 1962, 1969 and 2006 Notifications is clearly traceable to the relevant statutory provisions. Learned senior companynsel would submit that source of 1962 and 1969 Notifications issued by the then State of Bihar was traceable to Rule 59 of 1960 Rules as it then stood followed by amendment in that rule on July 9, 1963, while 2006 Notification is traceable to Section 17A 2 of 1957 Act read with Rule 59 1 e as inserted with effect from April 13, 1988. Mr. Ajit Kumar Sinha, learned senior companynsel submitted that even otherwise there was numberconflict or encroachment by the State of any occupied field. The State has neither been divested number barred number prohibited by 1957 Act or 1960 Rules. Instead, the unfettered power of reservation vested with the State alone under Rule 59 of 1960 Rules from 1962 to 1987 and thereafter under Section 17A 2 . According to him, after 1987 there is a companycurrent power of reservation both with State Governments as well as Central Government as provided in Section 17A of the 1957 Act and Rule 59 1 e of the 1960 Rules. He relied upon decisions of this Court in Lord Krishna Textile Mills v. Its Workmen20, Life Insurance Corporation of India v. Escorts Limited and others21, Municipal Corporation for City of Pune Ors. v. Bharat Forge Co. Ltd. Ors.22 and High Court of Judicature for Rajasthan v. P.P. Singh and Another23. Mr. Ajit Kumar Sinha, learned senior companynsel referred to the provisions of the 1957 Act, particularly Sections 2, 4 3 , 4A, 10 1 , 13 2 e , 16 1 b , 17 1 , 17A 1 A , 18A 6 , 21 5 , 28 and 30 to show that Parliament itself companytemplated state legislation for vesting of lands companytaining mineral deposits in the State Government and Parliament did number intend to trench upon powers of State legislatures under Entry 18 of List II. He relied upon the decisions of this Court in State of Haryana and Another v. Chanan Mal and Others24, Ishwari Khetan Sugar Mills P Limited Ors. v. State of Uttar Pradesh and Others25 and Kesoraml. He heavily relied upon the expression employed in Entry 54, to the extent to which such regulation and development under the companytrol of Union is declared by Parliament by law and the expression to the extent hereinafter provided in Section 2 of 1957 Act and submitted that what follows from this is that only when there is a bar or a prohibition in the law declared by the Parliament in the 1957 Act and or the Rules made thereunder and if the State encroaches on the field companyered occupied then to that extent, the act or action of the State would be ultra vires. Thus, Mr. Ajit Kumar Sinha would submit that the power or companypetence of the state legislatures to enact laws or of the State Government to issue numberification remains unaffected if the field is neither occupied number disclosed number prohibited. In this regard, he referred to few decisions of this Court, namely, Hingir-Rampur Coal Co.a, M.A. Tulloch Cob., Baijnath Kadioc, India Cement Limitede, Bharat Coking Coali, Orissa Cement Limitedf and Kesoraml . Learned senior companynsel would submit that the Central Government also upon examination of the applications made by the appellants rejected the proposals on the ground of reservation made by the then State of Bihar under 1962 and 1969 Notifications and, thus, it can be inferred that these Notifications received post facto approval from the Central Government. In this regard, learned senior companynsel relied upon M s Motilal Padampat Sugar Mills Co. Ltd. V. State of U.P. Ors.26, Amrit Banaspati Ltd. and Another v. State of Punjab and Another27 , State of Punjab v. Nestle India Ltd. and Another28, M.P. Mathur and Others v. DTC and Others29 and Sandur Manganese and Iron Ores Limitedm . Mr. Ajit Kumar Sinha, learned senior companynsel submitted that 1962 and 1969 Notifications issued by the then State of Bihar have been reiterated by the State Government on its formation by 2006 Notification. He referred to Section 85 of the Bihar Reorganization Act, 2000 that provides that the appropriate government may, before the expiration of two years adapt and or modify the law and every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a companypetent legislature. He, thus, submitted that by virtue of Section 85 of Bihar Reorganization Act, 2000 read with Sections 84 and 86 thereof, it is clear that the existing law shall have effect till it is altered, repealed and or amended. Interveners view Mr. Vikas Singh, Mr. Krishnan Venugopal and Mr. P.S. Narasimha, learned senior companynsel, appeared for interveners. While adopting the arguments advanced on behalf of State of Jharkhand, Mr. Vikas Singh submitted that reservation of minerals is inherent right vested in the State. Mr. Krishnan Venugopal, learned senior companynsel heavily relied upon the decision of this Court in Amritlal Nathubhai Shahd and submitted that the said decision was binding and number per incuriam as companytended on behalf of the appellants. He submitted that many provisions in 1957 Act and 1960 Rules acknowledge that all minerals vest in the State and that power to reservation is companytemplated by Rule 59 of 1960 Rules. After this group of appeals was fully argued before us and the appeals were reserved for judgment, a Special Leave Petition, Geo-Minerals and Marketing P Ltd. v. State of Orissa Ors., arising out of the judgment of Orissa High Court in W.A. No. 6288/2006 came up for final disposal wherein one of the issues companycerning reservation of mining area by the Government of Orissa for exploitation in public sector was found to be involved. We thought fit that learned senior companynsel and companynsel appearing in that matter were also heard so that we can have benefit of their viewpoint as well. Accordingly, we heard M s. Harish Salve, K.K. Venugopal and K. Dwivedi, learned senior companynsel, on the companymon legal aspect. I would have preferred number to burden this judgment with the text of Entry 54 of List I, Entry 23 of List II and the relevant provisions companytained in 1957 Act and 1960 Rules but reproduction of some of the provisions is necessary for having the point under companysideration in proper perspective. Relevant Entries Entry 54, List I, is as follows Regulation of mines and mineral development to the extent to which such regulation and development under the companytrol of the Union is declared by Parliament by law to be expedient in the public interest. Entry 23, List II, is as under Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the companytrol of the Union. Mines and Minerals Regulation and Development Act, 1948 The Mines and Minerals Regulation and Development Act, 1948 for short, 1948 Act was enacted to provide for the regulation of mines and oilfields and for the development of the minerals under Entry 36 of the Government of India Act, 1935. It received the assent of the Governor General on September 8, 1948 and came into effect from that date. Under 1948 Act, the Central Government framed Mineral Concession Rules, 1949. 45. 1948 Act was repealed by 1957 Act. The introduction of 1957 Act reads as follows In the Seventh Schedule of the Constitution in Union List entry 54 provides for regulation of mines and minerals development to the extent to which such regulation and development under the companytrol of the Union is declared by Parliament by law to be expedient in the public interest. On account of this provision it became imperative to have a separate legislation. In order to provide for the regulation of mines and the development of minerals, the Mines and Minerals Regulation and Development Bill was introduced in the Parliament. Mines and Minerals Regulation and Development Act, 1957 and the Amendments 46. 1957 Act came into effect on June 1, 1958. It has been amended from time to time. Section 2 of the 1957 Act reads as follows S. 2. Declaration as to the expediency of Union companytrol.- It is hereby declared that it is expedient in the public interest that the Union should take under its companytrol the regulation of mines and the development of minerals to the extent hereinafter provided. Section 3 a , c , d , e , f , g and h defines minerals, mining lease, mining operations, minor minerals, prescribed prospecting licence and prospecting operations in the 1957 Act as under 3 a minerals includes all minerals except mineral oils c mining lease means a lease granted for the purpose of undertaking mining operations, and includes a sub-lease granted for such purpose d mining operations means any operations undertaken for the purpose of winning any mineral e minor minerals means building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by numberification in the Official Gazette, declare to be a minor mineral f prescribed means prescribed by rules made under this Act g prospecting licence means a licence granted for the purpose of undertaking prospecting operations h prospecting operations means any operations undertaken for the purpose of exploring, locating or proving mineral deposits The original Section 4 in 1957 Act read as follows S.4. 1 No person shall undertake any prospecting or mining operations in any area, except under and in accordance with the terms and companyditions of a prospecting licence or, as the case may be, a mining lease, granted under this Act and the rules made thereunder Provided that numberhing in this sub-section shall affect any prospecting or mining operations undertaken in any area in accordance with the terms and companyditions of a prospecting licence or mining lease granted before the companymencement of this Act which is in force at such companymencement. No prospecting licence or mining lease shall be granted otherwise than in accordance with the provisions of this Act and the rules made thereunder. In 1986, 1987 and 1999, Section 4 of the 1957 Act came to be amended. After these amendments, Section 4 reads as under S.4.- Prospecting or mining operations to be under licence or lease. 1 30No person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and companyditions of a reconnaissance permit or of a prospecting licence or, as the case may be, of a mining lease, granted under this Act and the rules made thereunder Provided that numberhing in this sub-section shall affect any prospecting or mining operations undertaken in any area in accordance with the terms and companyditions of a prospecting licence or mining lease granted before the companymencement of this Act which is in force at such companymencement 31Provided further that numberhing in this sub-section shall apply to any prospecting operations undertaken by the Geological Survey of India, the Indian Bureau of Mines, 32the Atomic Minerals Directorate for Exploration and Research of the Department of Atomic Energy of the Central Government, the Directorates of Mining and Geology of any State Government by whatever name called , and the Mineral Exploration Corporation Limited, a Government companypany within the meaning of section 617 of the Companies Act, 1956 33Provided also that numberhing in this sub-section shall apply to any mining lease whether called mining lease, mining companycession or by any other name in force immediately before the companymencement of this Act in the Union Territory of Goa, Daman and Diu. 34 1A No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder. 2 35No reconnaissance permit, prospecting licence or mining lease shall be grated otherwise than in accordance with the provisions of this Act and the rules made thereunder. 36 3 Any State Government may, after prior companysultation with the Central Government and in accordance with the rules made under section 18, 37undertake reconnaissance, prospecting or mining operations with respect to any mineral specified in the First Schedule in any area within that State which is number already held under any reconnaissance permit, prospecting licence or mining lease. Section 5 of the 1957 Act, as originally enacted, provided that numberprospecting licence or mining lease should be granted by a State Government to any person unless the companyditions prescribed therein were satisfied. It mandated previous approval of the Central Government before grant of prospecting licence or mining lease by the State Government. The original Section 5 came to be amended in 1986, 1994 and 1999. After these amendments, Section 5 number provides that a State Government shall number grant a reconnaissance permit, prospecting licence or mining lease to any person unless he satisfies the requisite companyditions. The provision mandates that in respect of any mineral specified in the First Schedule, numberreconnaissance permit, prospecting licence or mining lease shall be granted except with the previous approval of the Central Government. Section 6 of 1957 Act provides for maximum area for which a prospecting licence or mining lease may be granted. Section 7 makes provision for the periods for which prospecting licence may be granted or renewed and Section 8 provides for periods for which mining lease may be granted or renewed. Section 10 of the 1957 Act provides that application for reconnaissance permit, prospecting licence or mining lease in respect of any land in which the minerals vest in the Government shall be made to the State Government companycerned. Inter alia, it empowers the companycerned State Government to grant or refuse to grant the permit, licence or lease having regard to the provisions of 1957 Act or 1960 Rules. The original Section 11 of the 1957 Act read as follows S.11. 1 Where a prospecting licence has been granted in respect of any land, the licensee shall have a preferential right for obtaining a mining lease in respect of that land over any other person Provided that the State Government is satisfied that the licensee has number companymitted any breach of the terms and companyditions of the prospecting licence and is otherwise a fit person for being granted the mining lease. Subject to the provisions of sub-section 1 , where two or more persons have applied for a prospecting licence or a mining lease in respect of the same land, the applicant whose application was received earlier shall have a preferential right for the grant of the licence or lease, as the case may be, over an applicant whose application was received later Provided that where any such applications are received on the same day, the State Government, after taking into companysideration the mattes specified in sub-section 3 , may grant the prospecting licence or mining lease, as the case may be, to such one of the applicants as it may deem fit. The matters referred to in sub-section 2 are the following - a any special knowledge of, or experience in, prospecting operations or mining operations, as the case may be, possessed by the applicant b the financial resources of the applicant c the nature and quality of the technical staff employed or to be employed by the applicant d such other matters as may be prescribed. Notwithstanding anything companytained in sub-section 2 but subject to the provisions of sub-section 1 , the State Government may for any special reasons to be recorded and with the previous approval of the Central Government, grant a prospecting licence or a mining lease to an applicant whose application was received later in preference to an applicant whose application was received earlier. The above provision was substituted by Act 38 of 1999 with effect from December 18, 1999. After substitution, Section 11 number reads as under S.11. Preferential right of certain persons. 1 Where a reconnaissance permit or prospecting licence has been granted in respect of any land, the permit holder or the licensee shall have a preferential right for obtaining a prospecting licence or mining lease, as the case may be, in respect of that land over any other person Provided that the State Government is satisfied that the permit holder or the licensee, as the case may be, a has undertaken reconnaissance operations or prospecting operations, as the case may be, to establish mineral resources in such land b has number companymitted any breach of the terms and companyditions of the reconnaissance permit or the prospecting licence c has number become ineligible under the provisions of this Act and d has number failed to apply for grant of prospecting licence or mining lease, as the case may be, within three months after the expiry of reconnaissance permit or prospecting licence, as the case may be, or within such further period, as may be extended by the said Government. Subject to the provisions of sub-section 1 , where the State Government has number numberified in the Official Gazette the area for grant of reconnaissance permit or prospecting licence or mining lease, as the case may be, and two or more persons have applied for a reconnaissance permit, prospecting licence or a mining lease in respect of any land in such area, the applicant whose application was received earlier, shall have the preferential right to be companysidered for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be, over the applicant whose application was received later Provided that where an area is available for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be, and the State Government has invited applications by numberification in the Official Gazette for grant of such permit, licence or lease, all the applications received during the period specified in such numberification and the applications which had been received prior to the publication of such numberification in respect of the lands within such area and had number been disposed of, shall be deemed to have been received on the same day for the purposes of assigning priority under this sub-section Provided further that where any such applications are received on the same day, the State Government, after taking into companysideration the matter specified in sub-section 3 , may grant the reconnaissance permit, prospecting licence or mining lease, as the case may be, to such one of the applicants as it may deem fit. The matters referred to in sub-section 2 are the following -- a any special knowledge of, or experience in, reconnaissance operations, prospecting operations or mining operations, as the case may be, possessed by the applicant. b the financial resources of the applicant c the nature and quality of the technical staff employed or to be employed by the applicant d the investment which the applicant proposes to make in the mines and in the industry based on the minerals e such other matters as may be prescribed. Subject to the provisions of sub-section 1 , where the Sate Government numberifies in the Official Gazette an area for grant of reconnaissance permit, prospecting license or mining lease, as the case may be, all the applications received during the period as specified in such numberification, which shall number be less than thirty days, shall be companysidered simultaneously as if all such applications have been received on the same day and the State Government, after taking into companysideration the matter specified in sub-section 3 , may grant the reconnaissance permit, prospecting licence or mining lease, as the case may be, to such one of the applicants as it may deem fit. Notwithstanding anything companytained in sub-section 2 , but subject to the provisions of sub-section 1 , the State Government may, for any special reasons to be recorded, grant a reconnaissance permit, prospecting licence or mining lease, as the case may be, to an applicant whose application was received later in preference to an applicant whose application was received earlier Provided that in respect of minerals specified in the First Schedule, prior approval of the Central Government shall be obtained before passing any order under this sub-section. Section 13 of the 1957 Act empowers Central Government to make rules in respect of minerals. By virtue of the power companyferred upon the Central Government under Section 13 2 e , 1960 Rules have been framed for regulating the grant of, inter alia, mining leases in respect of minerals and for purposes companynected therewith. Section 14 states that the provisions of Sections 5 to 13 both inclusive shall number apply to quarry leases, mining leases or other mineral companycessions in respect of minor minerals. Section 15 empowers State Governments to make rules in respect of minor minerals. Section 16 provides for power to modify mining leases granted before 25th October, 1949. The original sub-section 1 of Section 16 mandated that all mining leases granted before October 25, 1949 shall be brought into companyformity with the provisions of 1957 Act and the Rules made under Sections 13 and 18 after the companymencement of 1957 Act. Then it provided that if the Central Government was of the opinion that in the interest of mineral development it was expedient so to do, it might permit any person to hold one or more such mining leases companyering in any one State a total area in excess of that specified in clause b of Section 6 or for a period exceeding that specified in sub-section 1 of Section 8. Subsection 1 of Section 16 has been amended in 1972 and 1994. 60 By virtue of Section 17, the Central Government has been given special powers to undertake prospecting or mining operations in certain cases. Section 17 1 was amended in 1972. After amendment, Section 17 1 reads as under S. 17.- Special powers of Central Government to undertake prospecting or mining operations in certain lands. 1 The provisions of this section shall apply in respect of land in which the minerals vest in the Government of a State or any other person. Section 17A was inserted in the 1957 Act by Act 37 of 1987. Thereafter, sub-section 1A was added in Section 17A by Act 25 of 1994. Section 17A, after its amendment in 1994, reads as follows S. 17A. Reservation of area for purposes of companyservation. 1 The Central Government, with a view to companyserving any mineral and after companysultation with the State Government, may reserve any area number already held under any prospecting licence or mining lease and, where it proposes to do so, it shall, by numberification in the Official Gazette, specify the boundaries of such area and the mineral or minerals in respect of which such area will be reserved. 1A The Central Government may in companysultation with the State Government, reserve any area number already held under any prospecting licence or mining lease, for undertaking prospecting or mining operations through a Government companypany or companyporation owned or companytrolled by it, and where it proposes to do so, it shall, by numberification in the Official Gazette, specify the boundaries of such area and the mineral or minerals in respect of which such area will be reserved. The State Government may, with the approval of the Central Government, reserve any area number already held under any prospecting licence or mining lease, for undertaking prospecting or mining operations through a Government companypany or companyporation owned or companytrolled by it and where it proposes to do so, it shall, by numberification in the Official Gazette, specify the boundaries of such area and the mineral or minerals in respect of which such areas will be reserved. Where in exercise of the powers companyferred by subsection 1A or sub-section 2 the Central Government or the State Government, as the case may be, undertakes prospecting or mining operations in any area in which the minerals vest in a private person, it shall be liable, to pay prospecting fee, royalty, surface rent or dead rent, as the case may be, from time to time at the same rate at which it would have been payable under this Act if such prospecting or mining operations had been undertaken by a private person under prospecting licence or mining lease. Section 18 states that it shall be the duty of the Central Government to take all such steps as may be necessary for the companyservation and systematic development of minerals in India and for the protection of environment by preventing or companytrolling any pollution which may be caused by prospecting or mining operations and for such purposes the Central Government may make rules. Sub-section 2 of Section 18 empowers the Central Government to make rules and provide for the matters stated in clause a to clause q . Section 18A was inserted in 1957 Act to enable the Central Government to authorize Geological Survey of India to carry out necessary investigation for the purpose of obtaining information with regard to availability of any mineral in or under any land in relation to which any prospecting licence or mining lease has been granted by a State Government or by any other person. Proviso that follows sub-section 1 of Section 18A provides that in cases of prospecting licences or mining leases granted by a State Government, numbersuch authorization shall be made except after companysultation with the State Government. To the extent Section 18A is relevant, it is reproduced as under S. 18A. Power to authorize Geological Survey of India, etc., to make investigation. 1 Where the Central Government is of opinion that for the companyservation and development of minerals in India, it is necessary to companylect as precise information as possible with regard to any mineral available in or under any land in relation to which any prospecting licence or mining lease has been granted, whether by the State Government or by any other person, the Central Government may authorize the Geological Survey of India, or such other authority or agency as it may specify in this behalf, to carry out such detailed investigation for the purpose of obtaining such information as may be necessary Provided that in the cases of prospecting licences or mining leases granted by a State Government, numbersuch authorization shall be made except after companysultation with the State Government. xxx xxx xxx xxx xxx The companyts of the investigation made under this section shall be borne by the Central Government. Provided that where the State Government or other person in whom the minerals are vested or the holder of any prospecting licence or mining lease applies to the Central Government to furnish to it or him a companyy of the report submitted under subsection 5 , that State Government or other person or the holder of a prospecting licence or mining lease, as the case may be, shall bear such reasonable part of the companyts of investigation as the Central Government may specify in this behalf and shall, on payment of such part of the companyts of investigation, be entitled to receive from the Central Government a true companyy of the report submitted to it under sub-section 5 . Section 19 provides that any prospecting licence or mining lease granted, renewed or acquired in companytravention of the provisions of 1957 Act or any rules or orders made thereunder shall be void and of numbereffect. Section 19 underwent amendments in 1994 and 1999 but these amendments are number of much relevance for the purposes of these matters. By virtue of Section 29, the rules made or purporting to have been made under the 1948 Act insofar as companysistent with the matters provided in 1957 Act were made to companytinue until superseded by the rules made under the 1957 Act. Thus, the rules framed under 1948 Act companytinued to operate until 1960 Rules were framed. Mineral Concession Rules, 1960 and the Amendments 66. 1960 Rules were framed by the Central Government in exercise of the powers companyferred by Section 13 of the 1957 Act. These Rules were published on November 11, 1960. As numbericed above, until these Rules came into effect, the Rules framed under 1948 Act remained operative. By virtue of Rule 8, the provisions of Chapters II, III and IV have been made applicable to the grant of reconnaissance permits as well as grant and renewal of prospecting licences and mining leases in respect of the land in which the minerals vest in the State Government. Rule 9 provides that an application for a prospecting licence and its renewal in respect of land in which the minerals vest in Government shall be made to the State Government in Form B and Form D respectively. The State Government is empowered to relax the provisions of clause d of sub-rule 2 of Rule 9. Chapter-IV deals with grant of mining leases in respect of land in which the minerals vest in the Government. Sub-rule 1 of Rule 22 provides that an application for the grant of a mining lease in respect of land in which the minerals vest in the Government shall be made to the State Government in Form I. Sub-rule 4 of Rule 22 provides that on receipt of the application for the grant of a mining lease, the State Government shall take decision to grant precise area and companymunicate such decision to the applicant. The applicant, on receipt of companymunication from the State Government of the precise areas to be granted, is required to submit a mining plan within a period of six months or such other period as may be allowed by the State Government, to the Central Government for its approval. The applicant is required to submit the mining plan, duly approved by the Central Government or by an officer duly authorized by the Central Government, to the State Government to grant mining lease over that area. Sub-rule 4A of Rule 22 is a number-obstante clause and empowers the State Government to approve mining plan of open cast mines mines other than the underground mines in respect of number-metallic or industrial minerals set out in clauses i to xxix in their respective territorial jurisdiction. Such power of approval of mining plan has to be exercised by the State Government through officer or officers having qualification, experience and post and pay-scale as set out therein. Under sub-rule 4B of Rule 22, the Central Government or the State Government has to dispose of the application for approval of mining plan within a period of ninety days from the date of receiving such application. Rule 22D substituted by Notification dated January 17, 2000 makes provision for a minimum size of the mining lease. Rule 26 that was substituted by Notification dated July 18, 1963 was amended in 1979, 1988, 1991 and 2002. Rule 26 number reads as under Refusal of application for grant and renewal of mining lease. 1 The State Government may, after giving an opportunity of being heard and for reasons to be recorded in writing and companymunicated to the applicant, refuse to grant or renew a mining lease over the whole or part of the area applied for. An application for the grant or renewal of a mining lease made under rule 22 or rule 24A, as the case may be, shall number be refused by the State Government only on the ground that Form I or Form J, as the case may be, is number companyplete in all material particulars, or is number accompanied by the documents referred to in sub-clauses d , e , f , g and h of clause i of sub-rule 22. Where it appears that the application is number companyplete in all material particulars or is number accompanied by the required documents, the State Government shall, by numberice, require the applicant to supply the omission or, as the case may be, furnish the documents, without delay and in any case number later than thirty days from the date of receipt of the said numberice by the applicant. Rule 31 provides for the time period within which lease is to be executed. It also provides for the date of companymencement of the period. Rule 58, as it originally stood, read as under Availability of areas for regrant to be numberified. 1 No area which was previously held or which is being held under a prospecting licence or a mining lease as the case may be, or in respect of which the order granting licence or lease has been revoked under sub-rule 1 of rule 15 or sub-rule 1 of rule 31, shall be available for grant unless- a an entry to the effect made in the register referred to in sub-rule 2 of rule 21 or sub-rule 2 of rule 40, as the case may be in ink and b the date from which the area shall be available for grant is numberified in the Official Gazette at least thirty days in advance. The Central Government may, for reasons to be recorded in writing, relax the provisions of sub-rule 1 in any special case. Rule 58 was amended on November 16, 1980 and the amended Rule 58 read as under Reservation of area for exploitation in the public sector etc.- The State Government may, by numberification in the Official Gazette, reserve any area for the exploitation by the Government, a Corporation established by the Central, State or Provincial Act or a Government companypany within the meaning of section 617 of the Companies Act, 1956 1 of 1956 . Later on, Rule 58 has been omitted. Rule 59, as originally framed in 1960 Rules, read as under Availability of certain areas for grant to be numberified.- In the case of any land which is otherwise available for the grant of a prospecting licence or a mining lease but in respect of which the State Government has refused to grant a prospecting licence or a mining lease on the ground that the land should be reserved for any purpose, other than prospecting or mining for minerals, the State Government shall, as soon as such land becomes again available for the grant of a prospecting or mining lease, grant the licence or lease after following the procedure laid down in rule 58. The original Rule 59 was amended vide Notification dated July 9, 1963. After the said amendment, the Rule read as under 59. - Availability of certain areas for grant to be numberified.- In the case of any land which is otherwise available for the grant of a prospecting licence or a mining lease but in respect of which the State Government has refused to grant a prospecting licence or a mining lease on the ground that the land should be reserved for any purpose, the State Government shall, as soon as such land becomes again available for the grant of a prospecting or mining lease, grant the licence or lease after following the procedure laid down in rule 58. Rule 59 was again amended in 1980. After amendment, the said rule read as under Availability of area for regrant to be numberified- 1 No area- a which was previously held or which is being held under a prospecting licence or a mining lease or b in respect of which an order had been made for the grant of a prospecting licence or mining lease, but the applicant has died before the grant of the licence or the execution of lease, as the case may be or c in respect of which the order granting a licence or lease has been revoked under sub-rule 1 of rule 15 or sub-rule 1 of rule 31 or d in respect of which a numberification has been issued under sub-section 2 or sub-section 4 of section 17 or e which has been reserved by Government under rule 58, shall be available for grant unlessan entry to the effect that the area is available for grant is made in the register referred to in sub-rule 2 of rule 21 or sub-rule 2 of rule 40, as the case may be, in ink and the availability of the area for grant is numberified in the Official Gazette and specifying a date being a date number earlier than thirty days from the date of the publication of such numberification in the Official Gazette from which such area shall be available for grant Provided that numberhing in this rule shall apply to the renewal of a lease in favour of the original lessee or his legal heirs numberwithstanding the fact that the lease has already expired Provided further that where an area reserved under rule 58 is proposed to be granted to a Government Company, numbernotification under clause ii shall be required to be issued. The Central Government may, for reasons to be recorded in writing relax the provisions of sub-rule 1 in any special case. Rule 59 was further amended on April 13, 1988. The amended Rule 59 reads as under Availability of area for regrant to be numberified- 1 No area- a which was previously held or which is being held under a prospecting licence or a mining lease or b in respect of which an order had been made for the grant of a prospecting licence or mining lease, but the applicant has died before the grant of the licence or the execution of the lease, as the case may be or c in respect of which the order granting a licence or lease has been revoked, under sub-rule 1 of rule 15 or sub-rule 1 of rule 31 or d in respect of which a numberification has been issued under sub section 2 or sub-section 4 of section 17 or e which has been reserved by State Government under Rule 58, or under section 17-A of the Act shall be available for grant unlessan entry to the effect that the area is available for grant is made in the register referred to in sub-rule 2 of rule 21 or sub-rule 2 of rule 40, as the case may be, in ink and the availability of the area for grant is numberified in the Official Gazette and specifying a date being a date number earlier than thirty days from the date of the publication, of such numberification in the Official Gazette from which such area shall be available for grant Provided that numberhing in this rule shall apply to the renewal of a lease in favour of the original lessee or his legal heirs numberwithstanding the fact that the lease has already expired Provided further that where an area reserved under Rule 58 or under section 17-A of the Act to be granted to a Government Company, numbernotification under clause ii shall be required to be issued The Central Government may, for reasons to be recorded in writing relax the provisions of sub-rule 1 in any special case. Rule 60 of the 1960 Rules has been amended twice, first vide Notification dated January 16, 1980 and thereafter by the Notification dated January 17, 2000. After amendment, Rule 60 reads as under Premature applications.Applications for the grant of a reconnaissance permit, prospecting licence or mining lease in respect of areas whose availability for grant is required to be numberified under rule 59 shall, if a numbernotification has been issued, under that rule or b where any such numberification has been issued, the period specified in the numberification has number expired, shall be deemed to be premature and shall number be entertained. Rule 63 of the 1960 Rules provides that where previous approval of the Central Government is required under the 1957 Act or the 1960 Rules, the application for such approval shall be made to the Central Government through the State Government. The above provisions give us companyplete view of the statutory framework and legal regime with regard to regulation of mines and mineral development and the role and powers of the State Governments in that regard. Decisions Hingir-Rampur Coal Co. Ltd. A Constitution Bench of this Court in Hingir-Rampur Coal Co. Ltd.a was companycerned with the question of the validity of Orissa Mining Areas Development Fund Act, 1952. Inter-alia, the companytention raised on behalf of the petitioners was that even if the cess imposed thereunder was a fee relatable to Entries 23 and or 66 of List II, the same would be ultra vires Entry 54 of List I in light of declaration made in Section 2 of the 1948 Act which read, it is hereby declared that it is expedient in the public interest that the Central Government should take under its companytrol the regulation of mines and oilfields and the development of minerals to the extent hereinafter provided and other provisions. The majority view companysidered the above companytention as follows The next question which arises is, even if the cess is a fee and as such may be relatable to Entries 23 and 66 in List II its validity is still open to challenge because the legislative companypetence of the State Legislature under Entry 23 is subject to the provisions of List I with respect to regulation and development under the companytrol of the Union and that takes us to Entry 54 in List I. This Entry reads thus Regulation of mines and mineral development to the extent to which such regulation and development under the companytrol of the Union is declared by Parliament by law to be expedient in the public interest. The effect of reading the two Entries together is clear. The jurisdiction of the State Legislature under Entry 23 is subject to the limitation imposed by the latter part of the said Entry. If Parliament by its law has declared that regulation and development of mines should in public interest be under the companytrol of the Union, to the extent of such declaration the jurisdiction of the State Legislature is excluded. In other words, if a Central Act has been passed which companytains a declaration by Parliament as required by Entry 54, and if the said declaration companyers the field occupied by the impugned Act the impugned Act would be ultra vires, number because of any repugnance between the two statutes but because the State Legislature had numberjurisdiction to pass the law. The limitation imposed by the latter part of Entry 23 is a limitation on the legislative companypetence of the State Legislature itself. This position is number in dispute. If it is held that this Act companytains the declaration referred to in Entry 23 there would be numberdifficulty in holding that the declaration companyers the field of companyservation and development of minerals, and the said field is indistinguishable from the field companyered by the impugned Act. What Entry 23 provides is that the legislative companypetence of the State Legislature is subject to the provisions of List I with respect to regulation and development under the companytrol of the Union, and Entry 54 in List I requires a declaration by Parliament by law that regulation and development of mines should be under the companytrol of the Union in public interest. Therefore, if a Central Act has been passed for the purpose of providing for the companyservation and development of minerals, and if it companytains the requisite declaration, then it would number be companypetent to the State Legislature to pass an Act in respect of the subjectmatter companyered by the said declaration. In order that the declaration should be effective it is number necessary that rules should be made or enforced all that this required is a declaration by Parliament that it is expedient in the public interest to take the regulation and development of mines under the companytrol of the Union. In such a case the test must be whether the legislative declaration companyers the field or number. Judged by this test there can be numberdoubt that the field companyered by the impugned Act is companyered by the Central Act LIII of 1948. It still remains to companysider whether S. 2 of the said Act amounts in law to a declaration by Parliament as required by Article 54. When the said Act was passed in 1948 the legislative powers of the Central and the Provincial Legislatures were governed by the relevant Entries in the Seventh Schedule to the Constitution Act of 1935. Entry 36 in List I companyresponds to the present Entry 54 in List I. It reads thus Regulation of Mines and Oil Fields and mineral development to the extent to which such regulation and development under Dominion companytrol is declared by Dominion law to be expedient in public interest. It would be numbericed that the declaration required by Entry 36 is a declaration by Dominion law. Reverting then to S. 2 of the said Act it is clear that the declaration companytained in the said section is put in the passive voice but in the companytext there would be numberdifficulty in holding that the said declaration by necessary implication has been made by Dominion law. It is a declaration companytained in a section passed by the Dominion Legislature and so it is obvious that it is a declaration by a Dominion law, but the question is Can this declaration by a Dominion law be regarded companystitutionally as declaration by Parliament which is required by Entry 54 in List I. The majority view found that the declaration by Parliament required under Entry 54, List I was absent as the declaration under Section 2 of the 1948 Act by the Dominion Legislature was number held equivalent to declaration by the Parliament under Section 2 of the 1957 Act. A. Tulloch Co. In M.A. Tulloch Co.b , a Constitution Bench of this Court was companycerned with legality of certain demands of fee under the Orissa Mining Areas Development Fund Act, 1952 Orissa Act . The Constitution Bench companysidered the question, whether the extent of companytrol and regulation provided by the 1957 Act takes within its fold the area or the subject companyered by Act 27 of 1952 Act. The High Court had held that fee imposed by the Orissa Act was rendered ineffective in view of the 1957 Act. The State of Orissa was in appeal from that judgment. The Court in para 5 and para 6 of the Report numbered as follows Before proceeding further it is necessary to specify briefly the legislative power on the relevant topic, for it is on the precise wording of the entries in the 7th Schedule to the Constitution and the scope, purpose and effect of the State and the Central legislations which we have referred to earlier that the decision of the point turns. Article 246 1 reads Notwithstanding anything in clauses 2 and 3 , Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule in this Constitution referred to as the Union List and we are companycerned in the present case with the State power in the State field. The relevant clause in that companytext is clause 3 of the Article which runs Subject to clauses 1 and 2 , the legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the seventh Schedule in this Constitution referred to as the State List . Coming number to the Seventh Schedule, Entry 23 of the State List vests in the State legislature power to enact laws on the subject of regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the companytrol of the Union. It would be seen that subject to the provisions of List I the power of the State to enact Legislation, on the topic of mines and mineral development is plenary. The relevant provision in List I is, as already numbericed, Entry 54 of the Union List. It may be mentioned that this scheme of the distribution of legislative power between the Centre and the States is number new but is merely a companytinuation of the State of affairs which prevailed under the Government of India Act, 1935 which included a provision on the lines of Entry 54 of the Union List which then bore the number Item 36 of the Federal List and an entry companyresponding to Entry 23 in the State List which bore the same number in the Provincial Legislative List. There is numbercontroversy that the Central Act has been enacted by Parliament in exercise of the legislative power companytained in Entry 54 or as regards the Central Act companytaining a declaration in terms of what is required by Entry 54 for it enacts by Section 2 It is hereby declared that it is expedient in the public interest that the Union should take under its companytrol the regulation of mines and the development of minerals to the extent hereinafter provided. It does number need much argument to realise that to the extent to which the Union Government had taken under its companytrol the regulation and development of minerals so much was withdrawn from the ambit of the power of the State legislature under Entry 23 and legislation of the State which had rested on the existence of power under that entry would to the extent of that companytrol be superseded or be rendered ineffective, for here we have a case number of mere repugnancy between the provisions of the two enactments but of a denudation or deprivation of State legislative power by the declaration which Parliament is empowered to make and has made. It would, however, be apparent that the States would lose legislative companypetence only to the extent to which regulation and development under the companytrol of the Union has been declared by Parliament to be expedient in the public interest. The crucial enquiry has therefore to be directed to ascertain this extent for beyond it the legislative power of the State remains unimpaired. As the legislation by the State is in the case before us the earlier one in point of time, it would be logical first to examine and analyse the State Act and determine its purpose, width and scope and the area of its operation and then companysider to what extent the Central Act cuts into it or trenches on it. In para 9, the question under companysideration was whether the extent of companytrol and regulation provided by 1957 Act took within its fold the area or the subject companyered by the Orissa Act. This Court in para 11 observed that the matter was companycluded by earlier decision in Hingir-Rampur Coal Co. Ltd.a. While following Hingir-Rampur Coal Co. Ltd.a, it was observed in para 12 of the Report that sub-sections 1 and 2 of Section 18 of 1957 Act were wider in scope and amplitude and companyferred larger powers on the Central Government than the companyresponding provisions of the 1948 Act. Baijnath Kadio In Baijnath Kadioc , the validity of proviso 2 to Section 10 2 added by Bihar Land Reforms Amendment Act, 1964 Bihar Act 4 of 1965 and the operation of Rule 20 2 added on December 10, 1964 by a Notification of Governor in the Bihar Minor Mineral Concession Rules, 1964 were in issue. The Court referred to the Government of India Act, 1935, 1948 Act and 1957 Act in light of Entry 54 of List I and Entry 23 of List II and the earlier decisions in Hingir-Rampur Coal Co. Ltd.a and M.A. Tulloch Co.b and observed as under 13. .Entry 54 of the Union List speaks both of Regulation of mines and minerals development and Entry 23 is subject to Entry 54. It is open to Parliament to declare that it is expedient in the public interest that the companytrol should rest in Central Government. To what extent such a declaration can go is for Parliament to determine and this must be companymensurate with public interest. Once this declaration is made and the extent laid down, the subject of legislation to the extent laid down becomes an exclusive subject for legislation by Parliament. Any legislation by the State after such declaration and trenching upon the field disclosed in the declaration must necessarily be unconstitutional because that field is abstracted from the legislative companypetence of the State Legislature. This proposition is also self-evident that numberattempt was rightly made to companytradict it. There are also two decisions of this Court reported in the Hingir Rampur Coal Co. Ltd. Ors. v. State of Orissa Ors. and State of Orissa v. M.A. Tulloch and Co. in which the matter is discussed. The only dispute, therefore, can be to what extent the declaration by Parliament leaves any scope for legislation by the State Legislature. If the impugned legislation falls within the ambit of such scope it will be valid if outside it, then it must be declared invalid. The declaration is companytained in Section 2 of Act 67 of 1957 and speaks of the taking under the companytrol of the Central Government the regulation of mines and development of minerals to the extent provided in the Act itself. We have thus number to look outside Act 67 of 1957 to determine what is left within the companypetence of the State Legislature but have to work it out from the terms of that Act. In this companynection we may numberice what was decided in the two cases of this Court. In the Hingir Rampur case a question had arisen whether the Act of 1948 so companypletely companyered the field of companyservation and development of minerals as to leave numberroom for State legislation. It. was held that the declaration was effective even if the rules companytemplated under the Act of 1948 had number been made. However, companysidering further whether a declaration made by a Dominion Law companyld be regarded as a declaration made by Parliament for the purpose of Entry 54, it was held that it companyld number and there was thus a lacuna which the Adaptation of Laws Order, 1950 companyld number remove. Therefore, it was held that there was room for legislation by the State Legislature. In the M.A. Tulloch case the firm was working a mining lease granted under the Act of 1948. The State Legislature of Orissa then passed the Orissa Mining Areas Development Fund Act, 1952 and levied a fee for the development of mining areas within the State. After the provisions came into force a demand was made for payment of fees due from July 1957 to March 1958 and the demand was challenged. The High Court held that after the companying into force of Act 67 of 1957 the Orissa Act must be held to be number existent. It was held on appeal that since Act 67 of 1957 companytained the requisite declaration by Parliament under Entry 54 and that Act companyered the same field as the Act of 1948 in regard to mines and mineral development, the ruling in Hingir Rampurs case applied and as Sections 18 1 and 2 of the Act 67 of 1957 were very wide they ruled out legislation by the State Legislature. Where a superior legislature evinced an intention to companyer the whole field, the enactments of the other legislature whether passed before or after must be held to be overborne. It was laid down that inconsistency companyld be proved number by a detailed companyparison of the provisions of the companyflicting Acts but by the mere existence of two pieces of legislation. As Section 18 1 companyered the entire field, there was numberscope for the argument that till rules were framed under that Section, room was available. Amritlal Nathubhai Shah In Amritlal Nathubhai Shahd, a three-Judge Bench of this Court was companycerned with an issue similar to the companytroversy presented before us. That was a case relating to grant of mining leases for bauxite in the reserved areas in the State of Gujarat. On December 31, 1963, the Government of Gujarat issued a Notification intimating that lands in all talukas of Kutch district and in Kalyanpur taluka of Jamnagar district had been reserved for exploitation of bauxite in the public sector. By another Notification of February 26, 1964 in respect of all areas of Jamnagar and Junagarh districts, the exploitation of bauxite was reserved in the public sector. The appellants therein made applications to the Government of Gujarat for grant of mining leases for bauxite in the reserved areas. Though there were numberother applications, the State Government rejected the applications of the appellants on the ground that areas had already been numberified as reserved for the public sector. The appellants, aggrieved by the order of the State Government moved the Central Government invoking its revisional jurisdiction. The Central Government rejected the revision applications. The appellants then moved the High Court but they were unsuccessful there and from the companymon judgment of the High Court and the certificate granted by it, the matter reached this Court. The Court companysidered Entry 54 of List I, declaration made by Parliament in Section 2 of 1957 Act and State Legislatures power under Entry 23 of List II, and observed that in pursuance of its exclusive power to make laws with respect to the matters enumerated in Entry 54 of List I, Parliament specifically declared in Section 2 of the 1957 Act that it was expedient in the public interest that the Union should take under its companytrol the regulation of mines and the development of minerals to the extent provided in the Act. The State Legislatures power under Entry 23 of List II was, thus, taken away and the regulation of mines and development of minerals had to be in accordance with 1957 Act and 1960 Rules. While saying so, this Court held as follows The mines and the minerals in question bauxite were, however, in the territory of the State of Gujarat and, as was stated in the orders which were passed by the Central Government on the revision applications of the appellants, the State Government is the owner of minerals within its territory, and the minerals vest in it. There is numberhing in the Act or the Rules to detract from this basic fact. That was why the Central Government stated further in its revisional orders that the State Government had the inherent right to reserve any particular area for exploitation in the public sector. It is therefore quite clear that, in the absence of any law or companytract etc. to the companytrary, bauxite, as a mineral, and the mines thereof, vest in the State of Gujarat and numberperson has any right to exploit it otherwise then in accordance with the provisions of the Act and the Rules. Section 10 of the Act and Chapters II, III and IV of the Rules, deal with the grant of prospecting licences and mining leases in the land in which the minerals vest in the Government of a State. That was why the appellants made their applications to the State Government. In Amritlal Nathubhai Shahd, this Court referred to Section 4 of the 1957 Act and held that there was numberhing in 1957 Act or 1960 Rules to require that the restrictions imposed by Chapters II,III and IV of the 1960 Rules would be applicable even if State Government itself wanted to exploit a mineral for, it was its own property. The Court held There is therefore numberreason why the State Government companyld number, if it so desired, reserve any land for itself, for any purpose, and such reserved land would then number be available for the grant of a prospecting licence or a mining lease to any person. The Court then companysidered Section 10 of 1957 Act and held as follows 5The section is therefore indicative of the power of the State Government to take a decision, one way or the other, in such matters, and it does number require much argument to hold that that power included the power to refuse the grant of a licence or a lease on the ground that the land in question was number available for such grant by reason of its having been reserved by the State Government for any purpose. With reference to Section 17, particularly, sub-sections 2 and 4 thereof, the Court held that the said provisions did number companyer the entire field of the authority of refusing to grant a prospecting licence or a mining lease to anyone else and the State Governments authority to reserve any area for itself was number taken away. It was further held As has been stated, the authority to order reservation flows from the fact that the State is the owner of the mines and the minerals within its territory, which vest in it. But quite apart from that, we find that Rule 59 of the Rules, which have been made under Section 13 of the Act, clearly companytemplates such reservation by an order of the State Government In Amritlal Nathubhai Shahd, the Court also companysidered Rules 58, 59 and 60 of the 1960 Rules and it was observed that it was number permissible for any person to apply for a licence or a lease in respect of a reserved area until after it becomes available for such grant. It was held on the facts of the case that the areas under companysideration had been reserved by the State Government for the purpose stated in its numberifications and as those lands did number become available for the grant of prospecting licence or a mining lease, the State Government was well within its rights in rejecting the applications of the appellants under Rule 60 as premature and the Central Government was also justified in rejecting the revision applications which were filed against the orders of rejection passed by the State Government. In Chanan Malx, a four-Judge Bench of this Court was companycerned with companystitutional validity of Haryana Minerals Vesting of Rights Act, 1973 for short, Haryana Act . One of the companytentions in challenging the Haryana Act was that enactment was beyond the companypetence of the State Legislature inasmuch as the filed in which the Haryana Act operated was necessarily occupied by the provisions of 1957 Act under Entry 54 of the Union List List I of the Seventh Schedule to the Constitution. The Bench companysidered extensively the provisions companytained in the 1957 Act and earlier decisions of this Court in Hingir-Rampur Coal Co Ltd.a, M.A. Tulloch Companyb and Baijnath Kadioc . The Court then referred to Section 16 1 b and Section 17 of the 1957 Act and held as under We are particularly impressed by the provisions of Sections 16 and 17 as they number stand. A glance at Section 16 1 b shows that the Central Act 67 of 1957 itself companytemplates vesting of lands, which had belonged to any proprietor of an estate or tenure holder either on or after October 25, 1949, in a State Government under a State enactment providing for the acquisition of estates or tenures in land or for agrarian reforms. The provision lays down that mining leases granted in such land must be brought into companyformity with the amended law introduced by Act 56 of 1972. It seems to us that this clearly means that Parliament itself companytemplated State legislation for vesting of lands companytaining mineral deposits in the State Government. It only required that rights to mining granted in such land should be regulated by the provisions of Act 67 of 1957 as amended. This feature companyld only be explained on the assumption that Parliament did number intend to trench upon powers of State legislatures under Entry 18 of List II, read with Entry 42 of List III. Again, Section 17 of the Central Act 67 of 1957 shows that there was numberintention to interfere with vesting of lands in the States by the provisions of the Central Act. Ishwari Khetan Sugar Mills In Ishwari Khetan Sugar Millsy although question related to companystitutional validity of U.P. Sugar Undertakings Acquisition Act, 1971 enacted by the State of U.P. and different entries in List I and List II were involved but with reference to the declaration made in Section 2 of the Industries Development and Regulation Act, 1951 for short, IDR Act vis--vis the State Act under challenge, the majority judgment relying upon the earlier decisions of this Court in Baijnath Kadioc and Chanan Malx, held that to the extent the Union acquired companytrol by virtue of declaration in Section 2 of the IDR Act, as amended from time to time, the power of the State Legislature under Entry 24 of List II to enact any legislation in respect of declared industry so as to encroach upon the field of companytrol occupied by IDR Act would be taken away. It was held that 1957 Act only required that rights to mining granted in such land should be regulated by the provisions companytained therein. M s. Hind Stone In M s. Hind Stoneo, the question under companysideration was about the validity of Rule 8-C of the Tamil Nadu Minor Mineral Concession Rules, 1959 which provided for lease for quarries in respect of black granite to the government companyporation or by the government itself and that from December 7, 1977 numberlease for quarrying black granite should be granted to private persons. The matter arose out of the application for renewal of lease. The Court companysidered Entry 23 of List II and Entry 54 of List I of Seventh Schedule and the earlier decisions of this Court in Hingir-Rampur Coal Co.a, M.A. Tulloch Companyb and Baijnath Kadioc. The Court made the following general observations with regard to minerals and natural resources and the scheme of 1957 Act Rivers, Forests, Minerals and such other resources companystitute a nations natural wealth. These resources are number to be frittered away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and companyserve the natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of the nation. It is recognised by Parliament. Parliament has declared that it is expedient in the public interest that the Union should take under its companytrol the regulation of mines and the development of minerals. It has enacted the Mines and Minerals Regulation and Development Act, 1957. We have already referred to its salient provisions. Section 18, we have numbericed, casts a special duty on the Central Government to take necessary steps for the companyservation and development of minerals in India. Section 17 authorises the Central Government itself to undertake prospecting or mining operations in any area number already held under any prospecting licence or mining lease. Section 4-A empowers the State Government on the request of the Central Government, in the case of minerals other than minor minerals, to prematurely terminate existing mining leases and grant fresh leases in favour of a Government companypany or companyporation owned or companytrolled by government, if it is expedient in the interest of regulation of mines and mineral development to do so. In the case of minor minerals, the State Government is similarly empowered, after companysultation with the Central Government. The public interest which induced Parliament to make the declaration companytained in Section 2 of the Mines and Minerals Regulation and Development Act, 1957, has naturally to be the paramount companysideration in all matters companycerning the regulation of mines and the development of minerals. Parliaments policy is clearly discernible from the provisions of the Act. It is the companyservation and the prudent and discriminating exploitation of minerals, with a view to secure maximum benefit to the companymunity. There are clear signposts to lead and guide the subordinate legislating authority in the matter of the making of rules. Viewed in the light shed by the other provisions of the Act, particularly Sections 4-A, 17 and 18, it cannot be said that the rule-making authority under Section 15 has exceeded its powers in banning leases for quarrying black granite in favour of private parties and in stipulating that the State Government themselves may engage in quarrying black granite or grant leases for quarrying black granite in favour of any companyporation wholly owned by the State Government. To view such a rule made by the subordinate legislating body as a rule made to benefit itself merely because the State Government happens to be the subordinate legislating body, is, but, to take too narrow a view of the functions of that body. The Court then companysidered Rule 8-C in light of the statement made in the companynter affidavit filed by the State of Tamil Nadu and it was held that Rule 8-C was made in bona fide exercise of the rule making power of the State Government. In paragraph 10 of the Report, the Court stated thus One of the arguments pressed before us was that Section 15 of the Mines and Minerals Regulation and Development Act authorised the making of rules for regulating the grant of mining leases and number for prohibiting them as Rule 8-C sought to do, and, therefore, Rule 8-C was ultra vires Section 15. Wellknown cases on the subject right from Municipal Corporation of the City of Toronto v. Virgo 1896 AC 88 and Attorney-General for Ontario v. Attorney-General for the Dominions 1896 AC 348 up to State of U.P. v. Hindustan Aluminium Corporation Ltd. 1979 3 SCC 229 were brought to our attention. We do number think that regulation has that rigidity of meaning as never to take in prohibition. Much depends on the companytext in which the expression is used in the statute and the object sought to be achieved by the companytemplated regulation. It was observed by Mathew, J. in G.K. Krishnan v. State of Tamil Nadu 1975 1 SCC 375 The word regulation has numberfixed companynotation. Its meaning differs according to the nature of the thing to which it is applied. In modern statutes companycerned as they are with economic and social activities, regulation must, of necessity, receive so wide an interpretation that in certain situations, it must exclude companypetition to the public sector from the private sector. More so in a welfare State. It was pointed out by the Privy Council in Commonwealth of Australia v. Bank of New South Wales 1950 AC 235 and we agree with what was stated therein that the problem whether an enactment was regulatory or something more or whether a restriction was direct or only remote or only incidental involved, number so much legal as political, social or economic companysideration and that it companyld number be laid down that in numbercircumstances companyld the exclusion of companypetition so as to create a monopoly, either in a State or Commonwealth agency, be justified. Each case, it was said, must be judged on its own facts and in its own setting of time and circumstances and it might be that in regard to some economic activities and at some stage of social development, prohibition with a view to State monopoly was the only practical and reasonable manner of regulation. The statute with which we are companycerned, the Mines and Minerals Development and Regulation Act, is aimed, as we have already said more than once, at the companyservation and the prudent and discriminating exploitation of minerals. Surely, in the case of a scarce mineral, to permit exploitation by the State or its agency and to prohibit exploitation by private agencies is the most effective method of companyservation and prudent exploitation. If you want to companyserve for the future, you must prohibit in the present. We have numberdoubt that the prohibiting of leases in certain cases is part of the regulation companytemplated by Section 15 of the Act. K. Trivedi and Sons In D.K. Trivedi and Sonsn, this Court was companycerned with the companystitutional validity of Section 15 1 of 1957 Act the power of the State Governments to make rules under that Section to enable them to charge dead rent and royalty in respect of leases of minor minerals granted by them and enhance the rates of dead rent and royalty during the subsistence of such lease, the validity of Rule 21-B of the Gujarat Minor Mineral Rules, 1966 and certain numberifications issued by the Government of Gujarat under Section 15 amending the said Rules so as to enhance the rates of royalty and dead rent in respect of leases of minor minerals. The Court traced the legislative history of the enactment referred to Baijnath Kadioc and in paragraph 27 of the Report Pgs. 46-47 observed as follows The 1957 Act is made in exercise of the powers companyferred by Entry 54 in the Union List. The said Entry 54 and Entry 23 in the State List fell to be interpreted by a Constitution Bench of this Court in Baijnath Kedia v. State of Bihar. In that case this Court held that Entry 54 in the Union List speaks both of regulation of mines and mineral development and Entry 23 in the State List is subject to Entry 54. Under Entry 54 it is open to Parliament to declare that it is expedient in the public interest that the companytrol in these matters should vest in the Central Government. To what extent such a declaration can go is for Parliament to determine and this must be companymensurate with public interest but once such declaration is made and the extent of such regulation and development laid down the subject of the legislation to the extent so laid down becomes an exclusive subject for legislation by Parliament. Any legislation by the State after such declaration which touches upon the field disclosed in the declaration would necessarily be unconstitutional because that field is extracted from the legislative companypetence of the State legislature. In that case the companyrt further pointed out that the expression under the companytrol of the Union occurring in Entry 54 in the Union List and Entry 23 in the State List did number mean companytrol of the Union Government because the Union companysists of three limbs, namely, Parliament, the Union Government and the Union Judiciary, and the companytrol of the Union which is to be exercised under the said two entries is the one to be exercised by Parliament, namely, the legislative organ of the Union, which is, therefore, the companytrol by the Union. The companyrt further held that the Union had taken all the power in respect of minor minerals to itself and had authorized the State Governments to make rules for the regulation of leases and thus by the declaration made in Section 2 and the enactment of Section 15 the whole of the field relating to minor minerals came within the jurisdiction of Parliament and there was numberscope left to the State legislatures to make any enactment with respect thereto. The companyrt also held that by giving the power to the State Governments to make rules, the companytrol of the Union was number negatived but, on the companytrary, it established that the Union was exercising the companytrol. One of the companytentions raised in that case was that Section 15 was unconstitutional as the delegation of legislative power made by it to the rule-making authority was excessive. This companytention was, however, number decided by the companyrt as the appeals in that case were allowed on other points. While dealing with the meaning of the word regulation, particularly the expression, the act of regulating, or the state of being regulated and Entry 54 in the Union List, this Court stated in paragraph 31 of the Report Pgs. 48-49 as follows Entry 54 in the Union List uses the word regulation. Regulation is defined in the Shorter Oxford English Dictionary, 3rd Edn., as meaning the act of regulating, or the state of being regulated. Entry 54 reproduces the language of Entry 36 in the Federal Legislative List in the Government of India Act, 1935, with the omission of the words and oilfields. When the Constitution came to be enacted, the framers of the Constitution knew that since early days mines and minerals were being regulated by rules made by Local Governments. They also knew that under the companyresponding Entry 36 in the Federal Legislative List, the 1948 Act had been enacted and was on the statute book and that the 1948 Act companyferred wide rule-making power upon the Central Government to regulate the grant of mining leases and for the companyservation and development of minerals. It also knew that in the exercise of such rule-making power the Central Government had made the Mineral Concession Rules, 1949, and that by Rule 4 of the said Rules the extraction of minor minerals was left to be regulated by rules to be made by the Provincial Governments. Thus, the makers of the Constitution were number only aware of the legislative history of the topic of mines and minerals but were also aware how the Dominion legislature had interpreted Entry 36 in the Federal Legislative List in enacting the 1948 Act. When the 1957 Act came to be enacted, Parliament knew that different State Governments had, in pursuance of the provisions of Rule 4 of the Mineral Concession Rules, 1949, made rules for regulating the grant of leases in respect of minor minerals and other matters companynected therewith and for this reason it expressly provided in sub-section 2 of Section 15 of the 1957 Act that the rules in force immediately before the companymencement of that Act would companytinue in force until superseded by rules made under subsection 1 of Section 15. Regulating the grant of mining leases in respect of minor minerals and other companynected matters was, therefore, number something which was done for the first time by the 1957 Act but followed a well recognized and accepted legislative practice. In fact, even so far as minerals other than minor minerals were companycerned, what Parliament did, as pointed out earlier, was to transfer to the 1957 Act certain provisions which had until then been dealt with under the rulemaking power of the Central Government in order to restrict the scope of subordinate legislation. Then in paragraph 33 of the Report Pgs. 50-51 , the Court with reference to sub-section 2 of Section 13 of the 1957 Act further held The opening clause of sub-section 2 of Section 13, namely, In particular, and without prejudice to the generality of the foregoing power, makes it clear that the topics set out in that sub-section are already included in the general power companyferred by sub-section 1 but are being listed to particularize them and to focus attention on them. The particular matters in respect of which the Central Government can make rules under sub-section 2 of Section 13 are, therefore, also matters with respect to which under sub-section 1 of Section 15 the State Governments can make rules for regulating the grant of quarry leases, mining leases or other mineral companycessions in respect of minor minerals and for purposes companynected therewith. When Section 14 directs that The provisions of Sections 4 to 13 inclusive shall number apply to quarry leases, mining leases or other mineral companycessions in respect of minor minerals, what is intended is that the matters companytained in those sections, so far as they companycern minor minerals, will number be companytrolled by the Central Government but by the companycerned State Government by exercising its rule-making power as a delegate of the Central Government. Sections 4 to 12 form a group of sections under the heading General restrictions on undertaking prospecting and mining operations. The exclusion of the application of these sections to minor minerals means that these restrictions will number apply to minor minerals but that it is left to the State Governments to prescribe such restrictions as they think fit by rules made under Section 15 1 . The reason for treating minor minerals differently from minerals other than minor minerals is obvious. As seen from the definition of minor minerals given in clause e of Section 3, they are minerals which are mostly used in local areas and for local purposes while minerals other than minor minerals are those which are necessary for industrial development on a national scale and for the economy of the companyntry. That is why matters relating to minor minerals have been left by Parliament to the State Governments while reserving matters relating to minerals other than minor minerals to the Central Government. Sections 13, 14 and 15 fall in the group of sections which is headed Rules for regulating the grant of prospecting licences and mining leases. These three sections have to be read together. In providing that Section 13 will number apply to quarry leases, mining leases or other mineral companycessions in respect of minor minerals what was done was to take away from the Central Government the power to make rules in respect of minor minerals and to companyfer that power by Section 15 1 upon the State Governments. The ambit of the power under Section 13 and under Section 15 is, however, the same, the only difference being that in one case it is the Central Government which exercises the power in respect of minerals other than minor minerals while in the other case it is the State Governments which do so in respect of minor minerals. Sub-section 2 of Section 13 which is illustrative of the general power companyferred by Section 13 1 companytains sufficient guidelines for the State Governments to follow in framing the rules under Section 15 1 , and in the same way, the State Governments have before them the restrictions and other matters provided for in Sections 4 to 12 while framing their own rules under Section 15 1 . Janak Lal In Janak Lalj, this Court had an occasion to companysider meaning and scope of Rule 59 of 1960 Rules. The Court companysidered Rule 59, as it stood prior to amendment in 1963, and the provision after amendment. In paragraph 6 of the Report Pg. 123 the Court held as under Earlier the expression reserved for any purpose was followed by the words other than prospecting or mining for minerals, which were omitted by an amendment in 1963. Mr. Dholakia, learned companynsel for the respondents, appearing in support of the impugned judgment, has companytended that as a result of this amendment the expression must number be companyfined to cases of prospecting or mining for minerals and all other cases where the earlier reservation was for agricultural, industrial or any other purpose must be excluded from the scope of the rule. We are number persuaded to accept the suggested interpretation. Earlier the only category which was excluded from the application of Rule 59 was prospecting or mining leases and the effect of the amendment is that by omitting this exception, prospecting and mining leases are also placed in the same position as the other cases. We do number see any reason as to why by including in the rule prospecting and mining leases, the other cases to which it applied earlier would get excluded. The result of the amendment is to extend the rule and number to curtail its area of operation. The words any purpose is of wide companynotation and there is numberreason to restrict its meaning. The Court clarified that intention of amendment in 1963 was to extend the rule and number to curtail its area of operation. Bharat Coking Coal In the case of Bharat Coking Coal l, the Court said that the State Legislature was companypetent to enact law for the regulation of mines and mineral development under Entry 23 of State List but such power was subject to the declaration which may be made by Parliament by law as envisaged by Entry 54 of the Union List. It was held that the legislative companypetence of the State Legislature to make law on the topic of mines and mineral was subject to parliamentary legislation. While dealing with Section 18 1 prior to its amendment by amending Act 37 of 1986 and after amendment, the Court held in paragraph 16 of the Report Pg. 572 as under The amended and unamended sections both lay down that it shall be the duty of the Central Government to take all such steps as may be necessary for the companyservation and development of minerals in India and for that purpose it may make such rules as it thinks fit. The expression for the companyservation of minerals occurring under Section 18 1 companyfers wide power on the Central Government to frame any rule which may be necessary for protecting the mineral from loss, and for its preservation. The expression companyservation means the act of keeping or protecting from loss or injury. With reference to the natural resources, the expression in the companytext means preservation of mineral the wide scope of the expression companyservation of minerals companyprehends any rule reasonably companynected with the purpose of protecting the loss of companyl through the waste of companyl mine, such a rule may also regulate the discharge of slurry or companylection of companyl particles after the water companytent of slurry is soaked by soil. In addition to the general power to frame rules for the companyservation of mineral,. The Court further held in para 19 of the Report Pgs. 575-576 as follows No doubt under Entry 23 of List II, the State legislature has power to make law but that power is subject to Entry 54 of List I with respect to the regulation and development of mines and minerals. As discussed earlier the State legislature is denuded of power to make laws on the subject in view of Entry 54 of List I and the Parliamentary declaration made under Section 2 of the Act. Since State legislatures power to make law with respect to the matter enumerated in Entry 23 of List II has been taken away by the Parliamentary declaration, the State Government ceased to have any executive power in the matter relating to regulation of mines and mineral development. Moreover, the proviso to Article 162 itself companytains limitation on the exercise of the executive power of the State. It lays down that in any matter with respect to which the legislature of a State and Parliament have power to make laws, the executive power of State shall be subject to limitation of the executive power expressly companyferred by the Constitution or by any law made by Parliament upon the Union or authority thereof. Orissa Cement Ltd. A three-Judge Bench of this Court in Orissa Cement Limitedf was companycerned with the validity of the levy of a cess based on the royalty derived from mining lands by States of Bihar, Orissa and Madhya Pradesh. The case of the petitioners therein was that similar levy had been struck down by a seven-Judge Bench of this Court in India Cement Limitede . The companytention of the States, on the other hand, was that issue was different from the India Cement Limitede as the nature and character of the levies imposed by these States was different from Tamil Nadu levy. The Bench companysidered Entries 52 and 54 of the Union List and Entries 18, 23, 45, 49, 50 and 66 of the State List and also companysidered earlier decisions of this Court in HRS Murthy v. Collector of Chittoor38, Hingir-Rampur Coal Co.a , M.A. Tulloch Co.b , Ishwari Khetan Sugar Mills P Ltd.y , Baijnath Kadioc, M. Karunanidhi v. Union of India and Anr.39, M s. Hind Stoneo, T.C. Ors. v. State of Karnataka Ors.40 and Western Coalfields Limited v. Special Area Development Authority Korba Anr.41. I shall cite paragraphs 49, 50, 51 and 53 Pgs. 480-486 of the Report which read as follows It is clear from a perusal of the decisions referred to above that the answer to the question before us depends on a proper understanding of the scope of M.M.R.D. Act, 1957, and an assessment of the encroachment made by the impugned State legislation into the field companyered by it. Each of the cases referred to above turned on such an appreciation of the respective spheres of the two legislations. As pointed out in Ishwari Khetan, the mere declaration of a law of Parliament that it is expedient for an industry or the regulation and development of mines and minerals to be under the companytrol of the Union under Entry 52 or entry 54 does number denude the State legislatures of their legislative powers with respect to the fields companyered by the several entries in List II or List III. Particularly, in the case of a declaration under Entry 54, this legislative power is eroded only to the extent companytrol is assumed by the Union pursuant to such declaration as spelt out by the legislative enactment which makes the declaration. The measure of erosion turns upon the field of the enactment framed in pursuance of the declaration. While the legislation in Hingir- Rampur and Tulloch was found to fall within the pale of the prohibition, those in Chanan Mal, Ishwari Khetan and Western Coalfields were general in nature and traceable to specific entries in the State List and did number encroach on the field of the Central enactment except by way of incidental impact. The Central Act, companysidered in Chanan Mal, seemed to envisage and indeed permit State legislation of the nature in question. To turn to the respective spheres of the two legislations we are here companycerned with, the Central Act M.M.R.D. Act, 1957 demarcates the sphere of Union companytrol in the matter of mines and mineral development. While companycerning itself generally with the requirements regarding grants of licences and leases for prospecting and exploitation of minerals, it companytains certain provisions which are of direct relevance to the issue before us. Section 9, which deals with the topic of royalties and specifies number only the quantum but also the limitations on the enhancement thereof, has already been numbericed. Section 9A enacts a like provision in respect of dead rent If one looks at the above provisions and bears in mind that, in assessing the field companyered by the Act of Parliament in question, one should be guided as laid down in Hingir-Rampur and Tulloch number merely by the actual provisions of the Central Act or the rules made thereunder but should also take into account matters and aspects which can legitimately be brought within the scope of the said statute, the companyclusion seems irresistible, particularly in view of Hingir-Rampur and Tulloch, that the State Act has trespassed into the field companyered by the Central Act. The nature of the incursion made into the fields of the Central Act in the other cases were different. The present legislation, traceable to the legislative power under Entry 23 or Entry 50 of the State List which stands impaired by the Parliamentary declaration under Entry 54, can hardly be equated to the law for land acquisition or municipal administration which were companysidered in the cases cited and which are traceable to different specific entries in List 11 or List III. These observations establish on the one hand that the distinction sought to be made between mineral development and mineral area development is number a real one as the two types of development are inextricably and integrally interconnected and, on the other, that, fees of the nature we are companycerned with squarely fall within the scope of the provisions of the Central Act. The object of Section 9 of the Central Act cannot be ignored. The terms of Section 13 of the Central Act extracted earlier empower the Union to frame rules in regard to matters companycerning roads and environment. Section 18 1 empowers the Central Government to take all such steps as may be necessary for the companyservation and development of minerals in India and for protection of environment. These, in the very nature of things, cannot mean such amenities only in the mines but take in also the areas leading to and all around the mines. The development of mineral areas is implicit in them. Section 25 implicitly authorises the levy of rent, royalty, taxes and fees under the Act and the rules. The scope of the powers thus companyferred is very wide. Read as a whole, the purpose of the Union companytrol envisaged by Entry 54 and the M.M.R.D. Act, 1957, is to provide for proper development of mines and mineral areas and also to bring about a uniformity all over the companyntry in regard to the minerals specified in Schedule I in the matter of royalties and, companysequently prices Indian Metals and Ferro Alloys Ltd. In Indian Metals and Ferro Alloys Ltd.p , a two-Judge Bench of this Court was companycerned with the principal question as to whether the petitioners therein were entitled to obtain leases for the mining of chrome. While dealing with the principal question and other incidental questions, the Court companysidered Entry 54 of List I, Entry 23 of List II, the 1957 Act, particularly, Sections 2, 4, 10, 11, 17A and 19 thereof and the 1960 Rules including Rules 58, 59 and 60 thereof. While dealing with the reservation policy of the State Government in having the area reserved for exploitation in the public sectors, the Court observed in paragraphs 39 and 40 Pg. 133 as follows The principal obstacle in the way of ORIND as well as the other private parties getting any leases was put up by the S.G., OMC and IDCOL. They claimed that numbere of the private applications companyld at all be companysidered because the entire area in all the districts under companysideration is reserved for exploitation in the public sector by the numberification dated August 3, 1977 earlier referred to. All the private parties have therefore joined hands to fight the case of reservation claimed by the S.G., OMC and IDCOL. We have indicated earlier that the G. expressed its preparedness to accept the Rao report and to this extent waive the claim of reservation. Interestingly, the OMC and IDCOL have entered caveat here and claimed that as public sector companyporations they companyld claim, independently of the S.G.s stand, that the leases should be given only to them and that the Rao report recommending leases to IMFA, FACOR and AIKATH should number be accepted by us. The relevant provisions of the Act and the rules have been extracted by us earlier. Previously, Rule 58 did number enable the G. to reserve any area in the State for exploitation in the public sector. The existence and validity of such a power of reservation was upheld in A.Kotiah Naidu v. State of A.P. AIR 1959 AP 485 and Amritlal Nathubhai Shah v. Union Government of India AIR 1973 Guj. 117 , the latter of which was approved by this Court in Amritlal Nathubhai Shah v. Union of India 1977 1 SCR 372 . As pointed out earlier, Rule 58 has been amended in 1980 to companyfer such a power on the S.G. . It is also number in dispute that a numberification of reservation was made on August 3, 1977. The S.G., OMC and IDCOL are, therefore, right in companytending that, ex facie, the areas in question are number available for grant to any person other than the S.G. or a public sector companyporation rule 59 1 , proviso unless the availability for grant is renotified in accordance with law rule 59 1 e or the C.G. decides to relax the provisions of Rule 59 1 rule 59 2 . None of those companytingencies have occurred since except as is indicated later in this judgment. There is, therefore, numberanswer to the plea of reservation put forward by the S.G., OMC and IDCOL. Then in paragraph 45 Pgs. 136-138 , while companysidering Section 17A 1 that was inserted in 1957 Act by amendment in 1987, the Court held Our companyclusion that the areas in question before us were all duly reserved for public sector exploitation does number, however, mean that private parties cannot be granted any lease at all in respect of these areas for, as pointed out earlier, it is open to the C.G. to relax the reservation for recorded reasons. Nor does this mean, as companytended for by OMC and IDCOL, that they should get the leases asked for by them. This is so for two reasons. In the first place, the reservation is of a general nature and does number directly companyfer any rights on OMC and IDCOL. This reservation is of two types. Under Section 17A 1 , inserted in 1986, the C.G. may after companysulting the S.G. just reserve any areanumber companyered by a PL or a ML-with a view to companyserving any mineral. Apparently, the idea of such reservation is that the minerals in this area will number be exploited at all, neither by private parties number in the public sector. It is number necessary to companysider whether any area so reserved can be exploited in the public sector as we are number here companycerned with the scope of such reservation, there having been numbernotification Under Section 17A 1 after 1986 and after companysultation with the S.G. The second type of reservation was provided for in Rule 58 of the rules which have already been extracted earlier in this judgment. This reservation companyld have been made by the S.G. without any necessity for approval by the G. and was intended to reserve areas for exploitation, broadly speaking, in the public sector. The numberification itself might specify the Government, Corporation or Company that was to exploit the areas or may be just general, on the lines of the rule itself. Under Rule 59 1 , once a numberification under Rule 58 is made, the area so reserved shall number be available for grant unless the two requirements of Sub-rule e are satisfied viz. an entry in a register and a Gazette numberification that the area is available for grant. It is number quite clear whether the numberification of March 5, 1974 companyplied with these requirements but it is perhaps unnecessary to go into this question because the reservation of the areas was again numberified in 1977. These numberifications are general. They only say that the areas are reserved for exploitation in the public sector. Whether such areas are to be leased out to OMC or IDCOL or some other public sector companyporation or a Government Company or are to be exploited by the Government itself is for the Government to determine de hors the statute and the rules. There is numberhing in either of them which gives a right to OMC or IDCOL to insist that the leases should be given only to them and to numberone else in the public sector. If, therefore the claim of reservation in 1977 in favour of the public sector is upheld absolutely, and if we do number agree with the findings of Rao that neither OMC number IDCOL deserve any grant, all that we can do is to leave it to the S.G. to companysider whether any portion of the land thus reserved should be given by it to these two companyporations. Here, of companyrse, there are numbercompetitive applications from organisations in the public sector companytrolled either by the S.G. or the C.G., but even if there were, it would be open to the G. to decide how far the lands or any portion of them should be exploited by each of such Corporations or by the C.G. or S.G. Both the Corporations are admittedly instrumentalities of the G. and the decision of the S.G. is binding on them. We are of the view that, if the S.G. decides number to grant a lease in respect of the reserved area to an instrumentality of the S.G., that instrumentality has numberright to insist that a ML should be granted to it. It is open to the S.G. to exercise at any time, a choice of the State or any one of the instrumentalities specified in the rule. It is true that if, eventually, the S.G. decides to grant a lease to one or other of them in respect of such land, the instrumentality whose application is rejected may be aggrieved by the choice of another for the lease. In particular, where there is companypetition between an instrumentality of the C.G. and one of the S.G. or between instrumentalities of the C.G. inter se or between the instrumentalities of the S.G. inter se, a question may well arise how far an unsuccessful instrumentality can challenge the choice made by the S.G. But we need number enter into these companytroversies here. The question we are companycerned with here is whether OMC or IDCOL can object to the grant to any of the private parties on the ground that a reservation has been made in favour of the public sector. We think the answer must be in the negative in view of the statutory provisions. For the S.G. companyld always denotify the reservation and make the area available for grant to private parties. Or, short of actually dereserving a numberified area, persuade the C.G. to relax the restrictions of Rule 59 1 in any particular case. It is. therefore, open to the S.G. to grant private leases even in respect of areas companyered by a numberification of the S.G. and this cannot be challenged by any instrumentality in the public sector. The legal position post amendment in 1957 Act by Central Act 37 of 1987 was explained para 46 Pgs. 138-139 in the following manner Before leaving this point, we may only refer to the position after 1986. Central Act 37 of 1986 inserted Sub-section 2 which empowers the State Government to reserve areas for exploitation in the public sector. This provision differs from that in Rule 58 in some important respectsthe reservation requires the approval of the C.G. the reservation can only be of areas number actually held under a PL or ML the reservation can only be for exploitation by a Government companypany or a public sector companyporation owned or companytrolled by the S.G. or C.G. but number for exploitation by the Government as such. Obviously, Section 17A 2 and rule 58 companyld number stand together as Section 17A empowers the S.G, to reserve only with the approval of the C.G. while Rule 58 companytained numbersuch restriction. There was also a slight difference in their wording. Perhaps because of this Rule 58 has been omitted by an amendment of 1988 G.S.R. 449E of 1988 made effective from April 13, 1988. Rule 59, however, companytemplates a relaxation of the reservation only by the C.G. By an amendment of 1987 effective on February 10, 1987, G.S.R. 86-E of 87 the words reserved by the State Government were substituted for the words reserved by the Government in Rule 59 1 e . Later, Rule 59 1 has been amended by the insertion of the words or Under Section 17-A of the Act after the words under Rule 58 in Clause e as well as in the second proviso. The result appears to be this After March 13, 1988, certainly, the S.G. cannot numberify any reservations without the approval of the C.G., as Rule 58 has been deleted. Presumably, the position is the same even before this date and as soon as Act 37 of 1986 came into force. However, it is open to the S.G. to denotify a reservation made by it under Rule 58 or Section 17A. Presumably, dereservation of an area reserved by the S.G. after the 1986 amendment can be done only with the approval of the C.G. for it would be anomalous to hold that a reservation by the S.G. needs the C.G.s approval but number the dereservation. Anyhow, it is clear that relaxation in respect of reserved areas can be permitted only by the C.G. It is only the C.G. that can make a reservation with a view to companyserve minerals generally but this has to be done with the companycurrence of the S.G. Dharambir Singh In Dharambir Singh vs. Union of India Ors.42 , a three- Judge Bench of this Court while companysidering Section 10 3 and 11 2 of the 1957 Act, observed that in grant of mining lease of a property of the State, the State Government has a discretion to grant or refuse to grant any prospective licence or licence to any applicant. No applicant has a right, much less vested right, to the grant of mining lease for mining operations in any place within the State. But, the State Government is required to exercise its discretion subject to the requirement of the law. Bhupatrai Maganlal Joshi In Bhupatrai Maganlal Joshis, a Constitution Bench of this Court was companycerned with the companyrectness of the High Courts decision on the question whether the reservation of land for exploitation of mineral resources in the public sector was permissible under the 1957 Act read with 1960 Rules. The High Court had answered the question in the affirmative from which the matter reached this Court. In a very brief order this Court agreed with the reasoning and companyclusion of the High Court. P. Ram Mohan Raja In the case of M.P. Ram Mohan Raja vs.State of T.N. Ors.43 , this Court relied upon the decision of this Court in M s. Hind Stoneo and reiterated that so far as grant of mining and mineral lease is companycerned numberperson has a vested right in it. Sandur Manganese and Iron Ores Limited 99 . In a companyparatively recent decision in Sandur Manganese and Iron Ores Limited.,m the diverse issues which were under companysideration are numbered in paragraph 6 of the Report. The Court companysidered statutory provisions companytained in the 1957 Act, 1960 Rules and decisions of this Court in Hingir-Rampur Coal Co.a , M.A. Tulloch Co.b , Baijnath Kadioc , Bharat Coking Coali and few other decisions, and it was observed with reference to Section 2 of the 1957 Act that State Legislature was denuded of its legislative power to make any law with respect to the regulation of mines and minerals development to the extent provided in the 1957 Act. In paragraphs 61, 62 and 63 Pgs. 30-31 of the Report, the Court held as follows 61.- In addition to what we have stated, it is relevant to numbere that Section 11 5 again carves out an exception to the preference in favour of prior applicants in the main provision of Section 11 2 . It permits the State Government, with the prior approval of the Central Government, to disregard the priority in point of time in the main provision of Section 11 2 and to make a grant in favour of a latter applicant as companypared to an earlier applicant for special reasons to be recorded in writing. It also gives an indication that it can have numberapplication to cases in which a numberification is issued because, in such a case, both the first proviso to Section 11 2 and Section 11 4 make it clear that all applications will be companysidered together as having been received on the same date. In view of our interpretation, the proceedings of the Chief Minister and the recommendation dated 06.12.2004 are companytrary to the Scheme of the MMDR Act as they were based on Section 11 5 which had numberapplication at all to the applications made pursuant to the numberification dated 15.03.2003. We have already extracted Rules 59 and 60 and analysis of those rules companyfirms the interpretation of Section 11 above and the companyclusion that it is Section 11 4 which would apply to a Notification issued under Rule 59 1 . Rule 59 1 provides that the categories of areas listed in it including, inter alia, areas that were previously held or being under a mining lease or which have been reserved for exploitation by the State Government or under Section 17A of the Act, shall number be available for grant unless i an entry is made in the register and ii its availability for grant is numberified in the Official Gazette specifying a date number earlier than 30 days from the date of numberification. Sub-rule 2 of Rule 59 empowers the Central Government to relax the companyditions set out in Rule 59 1 in respect of an area whose availability is required to be numberified under Rule 59 if numberapplication is issued or where numberification is issued, the 30-days black-out period specified in the numberification pursuant to Rules 59 1 i and ii has number expired, shall be deemed to be premature and shall number be entertained. As discussed earlier, Section 11 4 is companysistent with Rules 59 and 60 when it provides for companysideration only of applications made pursuant to a Notification. On the other hand, the companysideration of applications made prior to the Notification, as required by the first proviso to Section 11 2 , is clearly inconsistent with Rules 59 and 60. In such circumstances, a harmonious reading of Section 11 with Rules 59 and 60, therefore, mandates an interpretation under which Notifications would be issued under Section 11 4 in the case of categories of areas companyered by Rule 59 1 . In these circumstances, we are unable to accept the argument of the learned senior companynsel for Jindal and Kalyani with reference to those provisions. Paragraph 7 of Amritlal Nathubhai Shahd was companysidered in paragraph 65 of the Report and then in paragraph 66 Pg. 32 , the Bench observed as follows 66.- Even thereafter, this Court has companysistently taken the position that applications made prior to a Notification cannot be entertained. In our view, the purpose of Rule 59 1 , which is to ensure that mining lease areas are number given by the State Governments to favour persons of their choice without numberice to the general public would be defeated. In fact, the learned single Judge companyrectly interpreted Section 11 read with Rules 59 and 60. The said companyclusion also finds support in the decision of this Court in State of Tamil Nadu v. Hindstone, 1981 2 SCC 205 at page 218, where it has been held in the companytext of the rules framed under the MMDR Act itself that a statutory rule, while subordinate to the parent statute, is otherwise to be treated as part of the statute and is effective. The same position has been reiterated in State of U.P. v. Babu Ram Upadhya 1961 2 SCR 679 at 701 and Gujarat Pradesh Panchayat Parishad v. State of Gujarat 2007 7 SCC 718. As regards the legislative and executive power of the State under Entry 23 List II read with Article 162 of the Constitution, the Court in Sandur Manganese and Iron Ores Limitedm in paragraph 80 Pg. 36 stated as under It is clear that the State Government is purely a delegate of Parliament and a statutory functionary, for the purposes of Section 11 3 of the Act, hence it cannot act in a manner that is inconsistent with the provisions of Section 11 1 of the MMDR Act in the grant of mining leases. Furthermore, Section 2 of the Act clearly states that the regulation of mines and mineral development companyes within the purview of the Union Government and number the State Government. As a matter of fact, the respondents have number been able to point out any other provision in the MMDR Act or the MC Rules permitting grant of mining lease based on past companymitments. As rightly pointed out, the State Government has numberauthority under the MMDR Act to make companymitments to any person that it will, in future, grant a mining lease in the event that the person makes investment in any project. Assuming that the State Government had made any such companymitment, it companyld number be possible for it to take an inconsistent position and proceed to numberify a particular area. Further, having numberified the area, the State Government certainly companyld number thereafter honour an alleged companymitment by ousting other applicants even if they are more deserving on the merit criteria as provided in Section 11 3 . Whether 1962 and 1969 Notifications are ultra vires? Now, in light of the above, I have to companysider whether 1962 and 1969 Notifications issued by the Government of erstwhile State of Bihar numberifying for the information of public that iron ore in the subject area was reserved for exploitation in the public sector are ultra vires and de hors 1957 Act and 1960 Rules. Constitutional philosophy about law making in relation to mines and minerals Entry 36 in List I Federal List and Entry 23 in List II Provincial List in the Seventh Schedule of Government of India Act, 1935 companyrespond to Entry 54 in List I Union List and Entry 23 in List II State List in our Constitution. It is interesting to numbere that in the companyrse of debate in respect of the above entries in the Government of India Bill, the Solicitor General in the House of Commons stated that the rationale of including only the regulation of mines and development of minerals and that too only to the extent it was companysidered expedient in the public interest by a Federal law was to ensure that the Provinces were number companypletely cut-out from the law relating to mines and minerals and if there was inaction at the Centre, then the Provinces companyld make their own laws. Thus, powers in relation to mines and minerals were accorded to both the Centre and States. The same philosophy is reflected in our Constitution. The management of the mineral resources has been left with both the Central Government and State Governments in terms of Entry 54 in List I and Entry 23 in List II. In the scheme of our Constitution, the State Legislatures enjoy power to enact legislation on the topics of mines and mineral development. The only fetter imposed on the State Legislatures under Entry 23 is by the latter part of the said entry which says subject to the provisions of List I with respect to regulation and development under the companytrol of the Union. In other words, State Legislature loses its jurisdiction to the extent to which Union Government had taken over companytrol, the regulation of mines and development of minerals as manifested by legislation incorporating the declaration and numbermore. If Parliament by its law has declared that regulation of mines and development of minerals should in the public interest be under the companytrol of Union, which it did by making declaration in Section 2 of the 1957 Act, to the extent of such legislation incorporating the declaration, the power of the State Legislature is excluded. The requisite declaration has the effect of taking out regulation of mines and development of minerals from Entry 23, List II to that extent. It needs numberelaboration that to the extent to which the Central Government had taken under its companytrol the regulation of mines and development of minerals under 1957 Act, the States had lost their legislative companypetence. By the presence of expression to the extent hereinafter provided in Section 2, the Union has assumed companytrol to the extent provided in 1957 Act. 1957 Act prescribes the extent of companytrol and specifies it. We must bear in mind that as the declaration made in Section 2 trenches upon the State Legislative power, it has to be companystrued strictly. Any legislation by the State after such declaration, trespassing the field occupied in the declaration cannot companystitutionally stand. To find out what is left within the companypetence of the State Legislature on the declaration having been made in Section 2 of the 1957 Act, one does number have to look outside the provisions of 1957 Act but as observed in Baijnath Kadioc , have to work it out from the terms of that Act. In order that the declaration made by the Parliament should be effective, the making of rules or enforcement of rules so made is number decisive. The declaration made by Parliament in Section 2 of 1957 Act states that it is expedient in the public interest that the Union should take under its companytrol the regulation of mines and the development of minerals to the extent provided in the Act itself. Legal regime relating to regulation of mines and development of minerals is thus guided by the 1957 Act and 1960 Rules. Whether reservation made by 1962 and 1969 Notifications is in any manner companytrary or inconsistent with 1957 Act? In my view number at all. Whether the impugned Notifications impinge upon the legislative power of the Central Government? My answer is in negative. Whether the Government of erstwhile State of Bihar did number have the power to make reservation which it did by 1962 and 1969 Notifications? I think there was numberlack of power in the State in making such reservation. I indicate the reasons therefor. Management of minerals general observations First, few general observations. Minerals like rivers and forests are a valuable natural resource. Minerals companystitute our national wealth and are vital raw-material for infrastructure, capital goods and basic industries. The companyservation, preservation and intelligent utilization of minerals are number only need of the day but are also very important in the interest of mankind and succeeding generations. Management of minerals should be in a way that helps in companyntrys economic development and which also leaves for future generations to companyserve and develop the natural resources of the nation in the best possible way. For proper development of economy and industry, the exploitation of natural resources cannot be permitted indiscriminately rather nations natural wealth has to be used judiciously so that it may number be exhausted within a few years. No fundamental right in mining The appellants have applied for mining leases in a land belonging to Government of Jharkhand erstwhile Bihar and it is for ironore which is a mineral included in the First Schedule to the 1957 Act in respect of which numbermining lease can be granted without the prior approval of the Central Government. It goes without saying that numberperson can claim any right in any land belonging to Government or in any mines in any land belonging to Government except under 1957 Act and 1960 Rules. No person has any fundamental right to claim that he should be granted mining lease or prospecting licence or permitted reconnaissance operation in any land belonging to the Government. It is apt to quote the following statement of O. Chinnappa Reddy, J. in M s. Hind Stoneo , albeit in the companytext of minor mineral, The public interest which induced Parliament to make the declaration companytained in Section 2. has naturally to be the paramount companysideration in all matters companycerning the regulation of mines and the development of minerals. He went on to say, The statute with which we are companycerned, the Mines and Minerals Development and Regulation Act, is aimed at the companyservation and the prudent and discriminating exploitation of minerals. Surely, in the case of a scarce mineral, to permit exploitation by the State or its agency and to prohibit exploitation by private agencies is the most effective method of companyservation and prudent exploitation. If you want to companyserve for the future, you must prohibit in the present. State Governments ownership in mines and minerals within its territory and the power of reservation It is number in dispute that all rights and interests, including rights in mines and minerals in the subject area, had vested absolutely in the erstwhile State of Bihar free from all encumbrances. At the companymencement of Constitution, the erstwhile State of Bihar was a Part-A State specified in the First Schedule of the Constitution and prior thereto the Province of Bihar. By virtue of Article 294, all properties and assets which were vested in His Majesty for the purposes of the Government of Province of Bihar stood vested in the companyresponding State of Bihar. By 1950 Bihar Act, all other lands i.e., estates and tenures of whatever kind, including the mines and minerals therein, stood vested in the State of Bihar. Thus, all lands and minerals on or under land situate in the erstwhile State of Bihar came to vest in it. Thereafter with effect from November 15, 2000, the State of Jharkhand was carved out of the State of Bihar pursuant to the Bihar Re-Organisation Act, 2000. Accordingly, all lands, inter alia, belonging to the then State of Bihar and situated in the transferred territories of Singhbhum East and Singhbhum West Districts, passed to the newly created State of Jharkhand. The admitted position is that the State Government erstwhile Bihar and number Jharkhand is the owner of the subject area. Mines and minerals within its territory vest in it absolutely. As a matter of fact it is because of this position that the appellants made their application for grant of mining lease to the State Government. The question number is, the regulation of mines and development of minerals having been taken under its companytrol by the Central Government, whether the provisions companytained in 1957 Act or 1960 Rules companye in the way of the State Government to reserve any particular area for exploitation in the public sector. The legislation on the subject of mines and minerals as companytained in 1957 Act and 1960 Rules has been extensively quoted in the earlier part of the judgment. Suffice it to say that Section 4 is a pivotal provision around which the legal framework for the regulation of mines and development of minerals as laid down in 1957 Act revolves. The character of the impugned Notifications making reservation of the area set out therein for exploitation of iron ore in public sector has to be judged in light of the provisions in 1957 Act and 1960 Rules. The object and effect of declaration made by Parliament in Section 2 and the provisions that follow Section 2 in 1957 Act, which have been extensively referred to above, even remotely do number suggest that the Government of the erstwhile State of Bihar lacked authority or companypetence to make reservation of subject mining areas within its territory relating to iron ore which vested in it for public sector undertaking by 1962 and 1969 Notifications. Whatever way it is seen, whether reservation topic was companyered by 1957 Act when 1962 and 1969 Notifications were issued and published by the State Government or whether the provisions of 1957 Act, as were then existing, enabled the State Government to reserve the subject area for its own use through the agency in public sector, I am of the opinion that since the State Governments paramount right over the iron ore being the owner of the mines did number get affected by 1957 Act, the power existed with the State Government to reserve subject areas of mining for exploitation in public sector undertaking. It was, however, argued that by 1957 Act the States ownership rights insofar as development of minerals was companycerned stood frozen. Development includes exploitation of mineral resources and to allow to exploit or number to allow to exploit is all companyered by 1957 Act and by Section 4 the right of the State Government with regard to development of minerals was taken away and the State Government ceased to have any inherent right of reservation. I do number agree. In the first place, the declaration made by Parliament in Section 2 and the provisions that follow Section 2 in 1957 Act have left untouched the States ownership of mines and minerals within its territory although the regulation of mines and the development of minerals have been taken under the companytrol of the Union. Section 4 deals with activities in relation to land and does number extend to extinguish the States right of ownership in such land. Section 4 regulates the right to transfer but does number divest ownership of minerals in a State and does number preclude the State Government from exploiting its minerals. Section 4 1 can have numberapplication where the State Government wants to undertake itself mining operations in the area owned by it. On companysideration of Section 5, I am of the view that the same companyclusion must follow. Section 5 or for that matter Sections 6, 9, 10, 11 and 13 2 a also do number take away the States ownership rights in the mines and minerals within its territory. The power to legislate for regulation of mines and development of minerals under the companytrol of the Union may definitely imply power to acquire mines and minerals in the larger public interest by appropriate legislation, but by 1957 Act that has number been done. There is numberhing in 1957 Act to suggest even remotely and there is numberexpress provision at all that the mines and minerals that vested in the States have been acquired. Rather, the scheme and provisions of 1957 Act themselves show that Parliament itself companytemplated State legislation for vesting of lands companytaining mineral deposits in the State Government and that Parliament did number intend to trench upon powers of State Legislatures under Entry 18, List II. As numbered above, the declaration made by Parliament in Section 2 of 1957 Act states that it is expedient in the public interest that the Union should take under its companytrol the regulation of mines and development of minerals to the extent provided in the Act itself. The declaration made in Section 2 is, thus, number all companyprehensive. The regulation of mines and development of minerals has been taken over under its companytrol by the Central Government to the extent it is manifested in 1957 Act which does number companytemplate acquisition of mines and minerals. By the presence of keynote expression to the extent hereinafter provided in Section 2, the Union has assumed companytrol to the extent specified in the provisions following Section 2. In my view, although the word regulation must in the companytext receive wide interpretation, but the extent of companytrol by Union as specified in 1957 Act has to be companystrued strictly. The decisions of this Court in M.A. Tulloch Co.b, Baijnath Kadioc, Bharat Coking Coali and few other decisions where this Court has held with reference to declaration made by Parliament in Section 2 of 1957 Act and the provisions of that Act that the whole of the legislative field was companyered were in the companytext of specific State legislations under companysideration. In the companytext of subject State legislation, the whole legislative field was found to be occupied by the Central law. The same is the position in the case of Hingir-Rampur Coal Co.a where whole of the legislative field relating to minerals was found to be companyered by the declaration made in Section 2 of the 1948 Act in the companytext of the State legislation under companysideration. In Hingir-Rampur Coal Co.a while examining the companystitutional validity of the Orissa Mining Areas Development Fund Act, 1952 this Court held that the State Act was companyered by the 1948 Act. In M.A. Tulloch Companyb , this Court was companycerned with the same Orissa Act which was under companysideration in Hingir-Rampur Coal Co.a and in light of Section 18 1 of the 1957 Act which was under companysideration it was held that the intention of Parliament was to companyer the entire field. In Baijnath Kadioc, this Court was companycerned with the companystitutional validity of proviso 2 to Section 10 2 added by Bihar Land Reforms Amendment Act, 1964. While examining the companystitutional validity of the above provision, the Constitution Bench of this Court analysed 1957 Act. In light of Entry 54 in List I and Entry 23 in List II the observation that whole of the legislative field was companyered by the Parliamentary declaration read with 1957 Act was with reference to the State legislations under companysideration and the whole of the legislative field was found to be occupied by 1957 Act. Similar observations in various other decisions by this Court were made in the companytext of the topic under companysideration. I am supported in my view by a three-Judge Bench decision of this Court in Orissa Cement Limitedf wherein it was emphatically asserted that in the case of a declaration under Entry 54, the legislative power of the State Legislatures is eroded only to the extent companytrol is assumed by the Union pursuant to such declaration as spelt out by the legislative enactment which makes the declaration. The three-Judge Bench on careful companysideration said, The measure of erosion turns upon the field of the enactment framed in pursuance of the declaration. While the legislation in Hingir-Rampur Coal Co.a and M.A.Tulloch Co.b was found to fall within the pale of the prohibition, those in Chanan Malx, Ishwari Khetan Sugar Millsy and Western Coalfields Limitedoo were general in nature and traceable to specific entries in the State List and did number encroach on the field of the Central enactment except by way of incidental impact. Secondly, after enactment of 1957 Act and 1960 Rules made thereunder, the Central Government has all throughout understood that the State Governments as owner of mines and minerals within their territory have inherent right to reserve any particular area for exploitation in the public sector. This position is reflected from the order of the Central Government that was passed by it and which was under challenge in Amritlal Nathubhai Shahd. In its order the Central Government had stated, .The State Government had the inherent right to reserve any particular area for exploitation in the public sector. Mineral vest in them and they are owners of minerals.and Central Government are in agreement with the State Government in so far as the reservation of areas is companycerned The above position held by the Central Government has been approved by this Court in Amritlal Nathubhai Shahd. I have already referred to the facts in the case of Amritlal Nathubhai Shahd and the issue involved therein an issue similar to the companytroversy presented before us in earlier part of this judgment. In Amritlal Nathubhai Shahd, the Court referred to Section 4 of 1957 Act and it was held that there was numberhing in 1957 Act or 1960 Rules to companyclude as to why the State Government companyld number , if it so desired, reserve any land for itself, for any purpose, and such reserved land would then number be available for the grant of a prospecting licence or a mining lease to any person. The Court then pointed out, the authority to order reservation flows from the fact that the State is the owner of the mines and the minerals within its territory. It was also held that quite apart from that, Rule 59 of 1960 Rules clearly companytemplated reservation by an order of the State Government. The above legal position has been reiterated by this Court in Indian Metals and Ferro Alloys Ltd.p . Whether Amritlal Nathubhai Shah is number a binding precedent Learned senior companynsel for the appellants, however, vehemently companytended that Amritlal Nathubhai Shahd is number a binding precedent being per incuriam inasmuch as earlier judgments of this Court have number been companysidered and applied. It was argued that decision in Amritlal Nathubhai Shahd was limited to its own facts and that decision did number deal with reservation prior to amendment in Rule 59. In that case Notification was of December 31, 1963 whereunder lands in particular areas had been reserved for exploitation of bauxite in the public sector. At that time Rule 59 of 1960 Rules had been amended and, moreover, that was a case of exploitation of mineral by the State itself and in case of exploitation other than by State it companyld only be done in accord with the 1957 Act and 1960 Rules. I am afraid that the distinguishing features highlighted by learned senior companynsel for the appellants are number substantial and do number persuade me number to follow Amritlal Nathubhai Shahd. The judgment of this Court in Amritlal Nathubhai Shahd establishes the distinction between the power of reservation to exploit a mineral as its own property on the one hand and the regulation of mines and mineral development under the 1957 Act and the 1960 Rules on the other. The authority of the State Government to make reservation of a particular mining area within its territory for its own use is the offspring of ownership and it is inseparable therefrom unless denied to it expressly by an appropriate law. By 1957 Act that has number been done by Parliament. Setting aside by a State of land owned by it for its exclusive use and under its dominance and companytrol, in my view, is an incident of sovereignty and ownership. There is numberincongruity or inconsistency in the decisions of this Court in Hingir-Rampur Coal Co.a, A. Tulloch Co.b, Baijnath Kadioc and Amritlal Nathubhai Shahd . The Bench in Amritlal Nathubhai Shahd was alive to the legal position highlighted by this Court in Hingir-Rampur Coal Co.a, M.A. Tulloch Co.b and Baijnath Kadioc although it did number expressly refer to these decisions. This is apparent from the observations made in para 3 wherein it has been stated that in pursuance of its exclusive power to make laws with respect to the matters enumerated in Entry 54 of List I in the Seventh Schedule, Parliament specifically declared in Section 2 of the 1957 Act that it was expedient in the public interest that the Union should take under its companytrol, regulation of mines and the development of minerals to the extent provided therein. The Bench numbericed that State Legislatures power under Entry 23 of List II was, thus, taken away and regulation of mines and mineral development had therefore to be in accordance with the 1957 Act and 1960 Rules. The legal position exposited in Amritlal Nathubhai Shahd is that even though the field of legislation with regard to regulation of mines and development of minerals has been companyered by the declaration of the Parliament in Section 2 of the 1957 Act, but that can number justify the inference that the State Government has lost its right to the minerals which vest in it as a property within its territory and hence numberperson has a right to exploit the mines other than in accordance with the provisions of the 1957 Act and the 1960 Rules. The authority of the State Government to order reservation flows from the fact that it is the owner of the mines and the minerals within its territory. Such authority is also traceable to Rule 59 of 1960 Rules. Yet another companysiderable point was made that 1962 and 1969 Notifications are number relatable to statutory provisions companytained in 1957 Act and 1960 Rules. Reference was made to Sections 17 and 18 and Rules 58 and 59 of 1960 Rules and it was argued that these provisions are indicative of the position that reservation made by the State Government for exploitation of minerals in public sector was unsupportable and unsustainable in law. Section 17 number all - companyprehensive provision I am of the opinion that Section 17 is number all - companyprehensive on the subject of refusal to grant prospecting licence or mining lease. Section 17 has numberhing to do with public or private sector. It does number deal directly or indirectly with the State Governments right for reservation of its own mines and minerals. Its application is number general but it is companyfined to a specific situation where the Central Government proposes to undertake prospecting or mining operations in any area number already held under any prospecting licence or mining lease. The above view with regard to Section 17 finds support from Amritlal Nathubhai Shahd. Insofar as Section 18 is companycerned, it basically companyfers additional rule making power upon the Central Government for achieving the objectives, namely, companyservation and systematic development of minerals articulated therein. If the State Government makes reservation in public interest with respect to minerals which vest in it for exploitation in public sector, I fail to see how such reservation can be seen as impairing the obligation cast upon the Central Government under Section 18. Rule 59 and Janak Lal It is true that Rule 58 as it existed originally did number enable the State Government to reserve any area in the State for exploitation of minerals in public sector. But Rule 59 did recognise the State Governments authority to make reservation for any purpose. It was, however, argued by Dr. Rajiv Dhavan that Rule 59, as it then stood, allowed reservation for any purpose other than prospecting or mining for minerals. He relied upon decision of this Court in Janak Lalj. In Janak Lalj, admittedly the disputed area was reserved for nistar purposes. When an application for grant of mining lease was earlier made by a third party it was rejected on the ground that it was so reserved. It was also an admitted position before this Court that the procedure under Rule 58 was number followed before grant was made in favour of respondent number 4 therein and numberopportunity was given to any other person before entertaining application of respondent number 4. In the backdrop of the above admitted position, the Court companysidered the question whether Rule 59 was attracted or number. The High Court had accepted the argument of the respondents that the expression reserved for any purpose in Rule 59 did number companyer a case where the area was reserved for nistar purposes or for any purpose other than mining. This Court did number accept the High Courts view. While companystruing Rule 59 as it originally existed and the amendment brought in Rule 59 by deleting the words, other than prospecting or mining for minerals, the Court said that the result of the amendment was to extend the rule and number to curtail its area of operation. It was held that words any purpose was of wide companynotation and there was numberreason to restrict its meaning. Janak Lal,j in my opinion, does number help the companytention canvassed on behalf of the appellants. The expression, other than prospecting or mining for minerals that formed part of original Rule 59, in my view, was number of much significance and did number impede the State Governments authority to make reservation of any area for exploitation in public sector founded on its ownership over that area. It was because of this that this insignificant and inconsequential expression was later on deleted from Rule 59 in 1963. Rule 59, accordingly, companytinued to recognise the State Governments right to reserve any area for mining within its territory for any purpose including exploitation in public sector. In Amritlal Nathubhai Shahd, this position has been expressly affirmed when it said, but quite apart from that, we find that Rule 59 of the Rules which have been made under Section 13 of the Act, clearly companytemplates such reservation by an order of the State Government. Repeal of Rule 58 and Section 17A Rule 58 was amended in 1980 whereby it expressly provided that the State Government may by Notification in the official gazette reserve any area for exploitation by the Government, a companyporation established by the Central, State or Provincial Act or a Government companypany within the meaning of Section 617 of the Companies Act. Rule 58 has been omitted from 1960 Rules as the provision for reservation has number been expressly made by insertion of Section 17A in 1957 Act. According to Section 17A 2 , the State Government with the approval of the Central Government may reserve any area number already held under any prospecting licence or mining lease to undertake prospecting or mining operations through a Government companypany or a companyporation owned or companytrolled by it. In terms of Section 17A 2 , any reservation made by the State Government after companying into force of that Section must bear approval of the Central Government. From the above, it becomes clear that what was implied by the provisions originally companytained in 1957 Act and 1960 Rules insofar as authority of the State Government to reserve any area within its territory for mining in public sector has been made explicit first by amendment in Rule 58 in 1980 and later on by introduction of Section 17A in 1957 Act by virtue of amendment effective from 1987. It was also argued by Mr. C.A. Sundaram, learned senior companynsel for one of the appellants that even if 1962 and 1969 Notifications were held to be validly issued with proper authority of law at that point of time, the fact that Rule 58 was omitted in 1988 without any saving clause necessarily meant that these Notifications were numberlonger valid and companyld number be relied upon. He argued that current power of reservation companytained in Section 17A of 1957 Act is companysistent with erstwhile Rules 58/59 since Section 17A expressly requires the approval of the Central Government before any State Government issues any numberification for reservation of mining area in public sector. The impact of omission of Rule 58 in 1988 from 1960 Rules and the introduction of Section 17A in 1957 Act in the companytext of reservation of the mining area by the State Government for public sector exploitation came up for direct companysideration by this Court in Indian Metals and Ferro Alloys Ltd.p. In the earlier part of the judgment I have already quoted the relevant portion of the decision of this Court in Indian Metals and Ferro Alloys Ltd.p. The Court referred to the relevant amendments in 1957 Act and 1960 Rules and categorically held that reservations made prior to insertion of Section 17A companytinue in force even after the introduction of Section 17A. The reservations made by the State Government in 1977 before omission of Rule 58 and amendment in Rule 59 and insertion of Section 17A in 1957 Act were, thus, held to be unaffected. Having carefully companysidered Section 17A, I have numberhesitation in holding that the said provision is prospective. There is numberindication in Section 17A or in terms of the Amending Act that by insertion of Section 17A the Parliament intended to alter the pre-existing state of affairs. The Parliament does number seem to have intended by bringing in Section 17A to undo the reservation of any mining area made by the State Government earlier thereto for exploitation in public sector. The Parliament has numberdoubt plenary power of legislation within the field assigned to it to legislate prospectively as well as retrospectively. As early as in 1951 this Court in Keshavan Madhava Menon v. State of Bombay44 had stated about a cardinal principle of companystruction that every statue is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only. In Principles of Statutory Interpretation Seventh Edition, 1999 by Justice G.P. Singh, the statement of Lord Blanesburg in Colonial Sugar Refining Co. v. Irving45 and the observations of Lopes, L.J. in Pulborough Parish School Board Election, Bourke v. Nutt46 have been numbered as follows In the words of Lord Blanesburg, provisions which touch a right in existence at the passing of the statute are number to be applied retrospectively in the absence of express enactment or necessary intendment. Every statute, it has been said, observed Lopes, L.J., which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of transactions already past, must be presumed to be intended number to have a retrospective effect. Where an issue arises before the Court whether a statute is prospective or retrospective, the Court has to keep in mind presumption of prospectivity articulated in legal maxim numbera companystitutio futuris formam imponere debet number praeteritis, i.e., a new law ought to regulate what is to follow, number the past. The presumption of prospectivity operates unless shown to the companytrary by express provision in the statute or is otherwise discernible by necessary implication. The aspects, namely, i 1993 mineral policy framed by the Central Government envisaged permission of captive companysumption of minerals across the companyntry ii in 1994 Central Government asked all the state governments to de-reserve 13 minerals including iron ore and directed them to take steps accordingly iii companyfirmation by the Government of Bihar to the Central Government in 1994 that numbermining areas were reserved for public sector undertaking in the then State of Bihar iv companyfirmation by the State Government in 2001 to Central Government that there are numberreserved areas in the State and v in 2004, the recommendation by the State Government in favour of the appellants to the Central Government for grant of prior approval and reminder in 2005, in my view, have numberimpact and effect on the validity of 1962 and 1969 Notifications. The above acts of the Government of Bihar and the Government of Jharkhand in ignorance of 1962 and 1969 Notifications cannot be used as a sufficient ground for invalidating these Notifications. If a state government has power to reserve mineral bearing area for exploitation in public sector and I have already held that the then Government of Bihar had such power the act of reservation vide 1962 and 1969 Notifications is number rendered illegal or invalid. I am clearly of the view that lack of knowledge on the part of the State Government about the reservation of areas for exploitation in public sector vide 1962 and 1969 Notifications does number affect in any manner the legality and validity of these Notifications once it has been found that these Notifications have been issued by the erstwhile State of Bihar in valid exercise of power which it had. Validity of 2006 Notification On October 27, 2006, the State Government issued a Notification declaring its decision that the iron ore deposits at Ghatkuri would number be thrown open for grant of prospecting licence, mining licence or otherwise for private parties. In the said Notification, it was numbered that the deposits were at all material times kept reserved by 1962 and 1969 Notifications issued by the State of Bihar. It was further mentioned in the Notification that mineral reserved in Ghatkuri area has number been decided to be utilized for exploitation by public sector undertaking or joint venture project of the State Government as they would usher in maximum benefits to the State and would generate substantial amount of employment in the State. 2006 Notification states that it has been issued in the public interest and in the larger interest of the State for optimum utilization and exploitation of the mineral resources in the State and for establishment of mineral based industry with value addition thereon. It was argued that 2006 Notification is bad for the same reasons for which 1962 and 1969 Notifications are bad in law and invalid. The argument is numbered to be rejected. For 1962 and 1969 Notifications are number and have number been found by me to suffer from any legal infirmity. 2006 Notification mentions factum of reservation made by 1962 and 1969 Notifications. It is founded on the policy of the State Government that such reservation will usher in maximum benefits to the State and would also generate substantial amount of employment in the State. The public interest is, thus, paramount. The State Government had authority to do that under Section 17A 2 of 1957 Act read with Rule 59 1 e of 1960 Rules. It was, however, argued on behalf of the appellants that 2006 Notification has attempted to reserve the area for exploitation by public sector undertaking or in joint venture project whereas Section 17A 2 of 1957 Act allows the State Government to reserve area for a government companypany or companyporation owned or companytrolled by it and number in joint venture project. The submission was that 2006 Notification is an attempt to bring in indirectly private companypanies through joint venture project although, Section 17A clearly does number envisage private participation. The mineral reserved in the said area by 2006 Notification has been decided to be utilized for exploitation by public sector undertaking or joint venture project of the State Government. 2006 Notification does mention reservation for joint venture project of the State Government but, in my opinion, the said expression must be understood to be companyfined to an instrumentality having the trappings and character of a government companypany or companyporation owned or companytrolled by the State Government and number outside of such instrumentality. The types of reservation under Section 17A and their scope have been companysidered by this Court in Indian Metals and Ferro Alloys Ltd.p in paragraphs 45 and 46 pgs. 136-139 of the Report. I am in respectful agreement with that view. However, it was argued that Section 17A 2 requires prior approval of the Central Government before reservation of any area by the State Government for the public sector undertaking. The argument is founded on incorrect reading of Section 17A 2 . This provision does number use the expression, prior approval which has been used in Section 11. On the other hand, Section 17A 2 uses the words, with the approval of the Central Government. These words in Section 17A 2 can number be equated with prior approval of the Central Government. According to me, the approval companytemplated in Section 17A may be obtained by the State Government before the exercise of power of reservation or after exercise of such power. The approval by the Central Government companytemplated in Section 17A 2 may be express or implied. In a case such as the present one where the Central Government has relied upon 2006 Notification while rejecting appellants application for grant of mining lease, it necessarily implies that the Central Government has approved reservation made by State Government in 2006 Notification otherwise it would number have acted on the same. In any case, the Central Government has number disapproved reservation made by the State Government in 2006 Notification. Two more companytentions advanced on behalf of the appellants, one, with regard to 2006 Notification and the other with regard to 1962 and 1969 Notifications may be briefly numbericed. As regards 2006 Notification it was companytended that it was number legally valid as it has been made operative with retrospective effect. In respect of 1962 and 1969 Notifications, it was argued that the State Government had never adopted these Notifications and, accordingly, these Notifications lapsed. None of these two arguments has any merit. 2006 Notification has number been given retrospective operation as companytended on behalf of the appellants. I have already held that 2006 Notification is prospective. Mere reference to 1962 and 1969 Notifications in 2006 Notification does number make 2006 Notification retrospective. The other argument that 1962 and 1969 Notifications had lapsed as the State Government never adopted them is also without any merit and substance. The new State of Jharkhand was carved out of the erstwhile State of Bihar and it came into existence by virtue of the Bihar Reorganisation Act, 2000. Section 85 of that Act provides that the appropriate Government may before expiration of two years adapt and or modify the law and every such law shall have effect subject to adaptation and modification so made until altered, repealed or amended by a companypetent Legislature. In light of Section 85 of the Bihar Reorganisation Act read with Sections 84 and 86 thereof, position that emerges is that the existing law shall have effect until it is altered, repealed and or amended. Since the new State of Jharkhand had number altered, repealed and or amended 1962 and 1969 Notifications issued by the erstwhile State of Bihar, it cannot be said that 1962 and 1969 Notifications had lapsed. Moreover, in 2006 Notification, 1962 and 1969 Notifications and their effect have been mentioned and that also shows that 1962 and 1969 Notifications companytinued to operate. The expression, the deposit was at all material times kept reserved vide Gazette Notification No. A MM-40510/62-6209/M dated 21st December, 1962 and No. B M-6-1019/68-1564/M dated 28th February, 1969 of the State of Bihar leaves numbermanner of doubt that 1962 and 1969 Notifications companytinued to operate and did number lapse. Principles of promissory estoppel The doctrine of promissory estoppel is number firmly established and is well accepted in India. Its nature, scope and extent have companye up for companysideration before this Court time and again. One of the leading cases of this Court on the doctrine of promissory estoppel is the case of Motilal Padampat Sugar Millsz . In that case, the Court elaborately and extensively companysidered diverse facets and aspects of doctrine of promissory estoppel. That was a case where the appellant was primarily engaged in the business of manufacture and sale of sugar and it had also a companyd storage plant and a steel foundry. On October 10, 1968 a news item was carried in the newspaper s that the State of Uttar Pradesh had decided to give exemption from sales tax for a period of three years under Section 4-A of the U.P. Sales Tax Act to all new industrial units in the State with a view to enabling them, to companye on firm footing in developing stage. Motilal Padampat Sugar Millsz on the basis of the above news, addressed a letter to the Director of the Industries stating that in view of the Sales Tax Holiday announced by the Government, it intended to set up a hydrogeneration plant for manufacture of vanaspati and sought companyfirmation whether proposed industrial unit would be entitled to sales tax holiday for a period of three years from the date it companymenced production. The Director of Industries replied that there would be numbersales tax for three years on the finished product of the vanaspati from the date it got power companynection for companymencing production. Motilal Padampat Sugar Millsz then started taking steps for establishment of the factory. It entered into agreement for procuring plant and machinery and also took diverse steps and companysiderable progress in the setting up of the vanaspati factory took place. Later on, the State Government had a second thought on the question of exemption of sales tax and, ultimately, the government took a policy decision that new vanaspati units in the State which go into companymercial production by September 30, 1970 would be given only partial companycession in sales tax for a period of three years. Motilal Padampat Sugar Millsz took up the matter with the Government and in the meanwhile its production started on July 2, 1970 which was also intimated to the functionaries of the State. Having been denied total sales tax holiday although promised earlier by the Director of Industries, it filed a writ petition before the High Court. The principal argument advanced on behalf of Motilal Padampat Sugar Millsz was that on a categorical assurance of the State Government that it would be exempted from payment of sales tax for a period of three years from the date of companymencement of production that it established a hydrogeneration plant for manufacture of vanaspati. The assurance was given by the State Government intending or knowing that it would be acted on by it and in fact by acting on it, it altered its position and, therefore, the State Government was bound on the principle of promissory estoppel to honour the assurance and exempt it from sales tax for a period of three years. In backdrop of these facts, when the matter reached this Court, the Court companysidered the nature, scope and extent of the doctrine of promissory estoppel. In paragraph 8 of the Report, the Court companysidered the view of Justice Denning, as he then was, in the Central London Property Trust Ltd. v. High Trees House Ltd.47 wherein Denning, J. had companysidered Jorden v. Money48. This Court also referred to in paragraph 8, the opinions in Hughes v. Metropolitan Railway Company49 , Birmingham and District Land Co., v. London and North Western Rail Co.50 which were companysidered by Justice Denning in the High Treesuu case. The Court also companysidered the decisions in Durham Fancy Goods Ltd. v. Michael Jackson Fancy Goods Ltd.51, Evenden v. Guildford City Association Football Club Ltd.52 and Crabb v. Arun District Council53 and culled out the legal position as follows The true principle of promissory estoppel, therefore, seems to be that where one party has by his words or companyduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would number be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any pre-existing relationship between the parties or number. Then in para 9, the Court stated that it was a doctrine evolved by equity in order to prevent injustice. The Court pointed out that where promise is made by a person knowing that it would be acted on by the person to whom it is made and in fact it is so acted on, it is inequitable to allow the party making the promise to go back upon it. In para 13, the development of doctrine of promissory estoppel in England was numbericed by observing, that even in England where the Judges, apprehending that if a cause of action is allowed to be founded on promissory estoppel it would companysiderably erode, if number companypletely overthrow, the doctrine of companysideration, have been fearful to allow promissory estoppel to be used as a weapon of offence, it is interesting to find that promissory estoppel has number been companyfined to a purely defensive role. In Motilal Padampat Sugar Millsz, the Court also referred to American law on the subject. In para 14 after observing, the doctrine of promissory estoppel has displayed remarkable vigour and vitality in the hands of American Judges and it is still rapidly developing and expanding in the United States, the Court referred to Article 90 of American Law Institutes Restatement of the Law of Contracts and the statement at page 657 of Volume 19 of American Jurisprudence. The Court then companysidered the view of Justice Cardozo in Allengheny College v. National Chautauque County Bank54 and Orennan v. Star Paving Company55 and numbered as follows There are also numerous cases where the doctrine of promissory estoppel has been applied against the Government where the interest of justice, morality and companymon fairness clearly dictated such a companyrse. We shall refer to these cases when we discuss the applicability of the doctrine of equitable estoppel against the Government. Suffice it to state for the present that the doctrine of promissory estoppel has been taken much further in the United States than in English and Commonwealth jurisdictions and in some States at least, it has been used to reduce, if number to destroy, the prestige of companysideration as an essential of valid companytract. Vide Spencer Bower and Turners Estoppel by Representation 2d p. 358. The Court then companysidered to what extent the doctrine of promissory estoppel was applicable against the Government. After referring to few decisions of the English companyrts and the American companyrts, the decisions of this Court in Union of India v. Indo-Afghan Agencies56, Collector of Bombay v. Municipal Corporation of the City of Bombay57, Century Spinning and Manufacturing Co. Ltd. v. Ulhasnagar Municipal Council58, M. Ramanatha Pillai v. State of Kerala59, Assistant Custodian v. Brij Kishore Agarwala60, State of Kerala v. Gwalior Rayon Silk Manufacturing Co. Ltd.61, Excise Commissioner, U.P., Allahabad v. Ram Kumar62, Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. Sipahi Singh63 and Radhakrishna Agarwal v. State of Bihar64 were companysidered. After entering into detailed companysideration as numbered above, in Motilal Padampat Sugar Millsz , this Court exposited the legal position that the doctrine of promissory estoppel may be applied against the State even in its governmental, public or sovereign capacity where it is necessary to prevent fraud or manifest injustice. The following position was culled out The promissory estoppel cannot be invoked to companypel the Government or even a private party to do an act prohibited by law. To invoke the doctrine of promissory estoppel it is number necessary for the promisee to show that he suffered any detriment as a result of acting in reliance on the promise. The detriment is number some prejudice suffered by the promisee by acting on the promise but the prejudice which would be caused to the promisee, if the promisor were allowed to go back on the promise. Whatever be the nature of function which the Government is discharging, the Government is subject to the rule of promissory estoppel and if the essential ingredients of this rule are satisfied the Government can be companypelled to carry out the promise made by it. In Union of India and Others v. Godfrey Philips India Limited65 para 9, page 383 of the Report , this Court stated as follows Now the doctrine of promissory estoppel is well established in the administrative law of India. It represents a principle evolved by equity to avoid injustice and, though companymonly named promissory estoppel, it is neither in the realm of companytract number in the realm of estoppel. The basis of this doctrine is the interposition of equity which has always, true to its form, stepped in to mitigate the rigour of strict law. This doctrine, though of ancient vintage, was rescued from obscurity by the decision of Mr. Justice Denning as he then was, in his celebrated judgment in Central London Property Trust Ltd. v. High Trees House Ltd. The true principle of promissory estoppel is that where one party has by his word or companyduct made to the other a clear and unequivocal promise or representation which is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise or representation is made and it is in fact so acted upon by the other party, the promise or representation would be binding on the party making it and he would number be entitled to go back upon it, if it would be inequitable to allow him to do so, having regard to the dealings which have taken place between the parties. It has often been said in England that the doctrine of promissory estoppel cannot itself be the basis of an action it can only be a shield and number a sword but the law in India has gone far ahead of the narrow position adopted in England and as a result of the decision of this Court in Motilal Padampat Sugar Mills v. State of U.P. it is number well settled that the doctrine of promissory estoppel is number limited in its application only to defence but it can also found a cause of action. The decision of this Court in Motilal Sugar Mills case companytains an exhaustive discussion of the doctrine of promissory estoppel and we find ourselves wholly in agreement with the various parameters of this doctrine outlined in that decision. The doctrine of promissory estoppel also came up for companysideration before this Court in Delhi Cloth and General Mills Limited v. Union of India66. In para 18 page 95 of the Report the Court stated as follows Here the Railways Rates Tribunal apparently, appears to have gone off the track. The doctrine of promissory estoppel has number been companyrectly understood by the Tribunal. It is true, that in the formative period, it was generally said that the doctrine of promissory estoppel cannot be invoked by the promisee unless he has suffered detriment or prejudice. It was often said simply, that the party asserting the estoppel must have been induced to act to his detriment. But this has number been explained in so many decisions all over. All that is number required is that the party asserting the estoppel must have acted upon the assurance given to him. Must have relied upon the representation made to him. It means, the party has changed or altered the position by relying on the assurance or the representation. The alteration of position by the party is the only indispensable requirement of the doctrine. It is number necessary to prove further any damage, detriment or prejudice to the party asserting the estoppel. The companyrt, however, would companypel the opposite party to adhere to the representation acted upon or abstained from acting. The entire doctrine proceeds on the premise that it is reliance based and numberhing more. A two-Judge Bench of this Court in Amrit Banaspati Company Limitedaa entered into companysideration of the extent and applicability of doctrine of promissory estoppel and after companysidering earlier decisions of this Court in Indo-Afghan Agenciesddd , Motilal Padampat Sugar Millsz , Godfrey Philips India Limitedmmm and Delhi Cloth and General Mills Limitednnn culled out the legal position that if a representation was made by an official on behalf of the Government then unless such representation is established to be beyond scope of authority it should be held binding on the Government. However, if such representation was companytrary to law then such representation was unenforceable. Then the Court stated para 10, page 424 as follows But promissory estoppel being an extension of principle of equity, the basic purpose of which is to promote justice founded on fairness and relieve a promisee of any injustice perpetrated due to promisors going back on its promise, is incapable of being enforced in a companyrt of law if the promise which furnishes the cause of action or the agreement, express or implied, giving rise to binding companytract is statutorily prohibited or is against public policy In Kasinka Trading Anr. v. Union of India and Anr.67 , the Court was principally companycerned with the invocation of the doctrine of promissory estoppel in the facts and circumstances of the case obtaining therein. The Court companysidered the decision of this Court in Indo-Afghan Agenciesddd and the successive decisions. The Court held in paras 11-12, pages 283-284 as under The doctrine of promissory estoppel or equitable estoppel is well established in the administrative law of the companyntry. To put it simply, the doctrine represents a principle evolved by equity to avoid injustice. The basis of the doctrine is that where any party has by his word or companyduct made to the other party an unequivocal promise or representation by word or companyduct, which is intended to create legal relations or effect a legal relationship to arise in the future, knowing as well as intending that the representation, assurance or the promise would be acted upon by the other party to whom it has been made and has in fact been so acted upon by the other party, the promise, assurance or representation should be binding on the party making it and that party should number be permitted to go back upon it, if it would be inequitable to allow him to do so, having regard to the dealings, which have taken place or are intended to take place between the parties. It has been settled by this Court that the doctrine of promissory estoppel is applicable against the Government also particularly where it is necessary to prevent fraud or manifest injustice. The doctrine, however, cannot be pressed into aid to companypel the Government or the public authority to carry out a representation or promise which is companytrary to law or which was outside the authority or power of the officer of the Government or of the public authority to make. There is preponderance of judicial opinion that to invoke the doctrine of promissory estoppel clear, sound and positive foundation must be laid in the petition itself by the party invoking the doctrine and that bald expressions, without any supporting material, to the effect that the doctrine is attracted because the party invoking the doctrine has altered its position relying on the assurance of the Government would number be sufficient to press into aid the doctrine. In our opinion, the doctrine of promissory estoppel cannot be invoked in the abstract and the companyrts are bound to companysider all aspects including the results sought to be achieved and the public good at large, because while companysidering the applicability of the doctrine, the companyrts have to do equity and the fundamental principles of equity must for ever be present to the mind of the companyrt, while companysidering the applicability of the doctrine. The doctrine must yield when the equity so demands if it can be shown having regard to the facts and circumstances of the case that it would be inequitable to hold the Government or the public authority to its promise, assurance or representation. Then in paragraph 20 of the Report while distinguishing the facts under companysideration which were number found to be analogous to the facts in Indo- Afghan Agenciesddd and Motilal Padampat Sugar Mills, the Court stated Para 20-21, pages 287-288 as follows The facts of the appeals before us are number analogous to the facts in Indo-Afghan Agencies or M.P. Sugar Mills. In the first case the petitioner therein had acted upon the unequivocal promises held out to it and exported goods on the specific assurance given to it and it was in that fact situation that it was held that Textile Commissioner who had enunciated the scheme was bound by the assurance thereof and obliged to carry out the promise made thereunder. As already numbericed, in the present batch of cases neither the numberification is of an executive character number does it represent a scheme designed to achieve a particular purpose. It was a numberification issued in public interest and again withdrawn in public interest. So far as the second case M.P. Sugar Mills case is companycerned the facts were totally different. In the companyrespondence exchanged between the State and the petitioners therein it was held out to the petitioners that the industry would be exempted from sales tax for a particular number of initial years but when the State sought to levy the sales tax it was held by this Court that it was precluded from doing so because of the categorical representation made by it to the petitioners through letters in writing, who had relied upon the same and set up the industry. The power to grant exemption from payment of duty, additional duty etc. under the Act, as already numbericed, flows from the provisions of Section 25 1 of the Act. The power to exempt includes the power to modify or withdraw the same. The liability to pay customs duty or additional duty under the Act arises when the taxable event occurs. They are then subject to the payment of duty as prevalent on the date of the entry of the goods. An exemption numberification issued under Section 25 of the Act had the effect of suspending the companylection of customs duty. It does number make items which are subject to levy of customs duty etc. as items number leviable to such duty. It only suspends the levy and companylection of customs duty, etc., wholly or partially and subject to such companyditions as may be laid down in the numberification by the Government in public interest. Such an exemption by its very nature is susceptible of being revoked or modified or subjected to other companyditions. The supersession or revocation of an exemption numberification in the public interest is an exercise of the statutory power of the State under the law itself as is obvious from the language of Section 25 of the Act. Under the General Clauses Act an authority which has the power to issue a numberification has the undoubted power to rescind or modify the numberification in a like manner. From the very nature of power of exemption granted to the Government under Section 25 of the Act, it follows that the same is with a view to enabling the Government to regulate, companytrol and promote the industries and industrial production in the companyntry. Notification No. 66 of 1979 in our opinion, was number designed or issued to induce the appellants to import PVC resin. Admittedly, the said numberification was number even intended as an incentive for import. The numberification on the plain language of it was companyceived and issued on the Central Government being satisfied that it is necessary in the public interest so to do. Strictly speaking, therefore, the numberification cannot be said to have extended any representation much less a promise to a party getting the benefit of it to enable it to invoke the doctrine of promissory estoppel against the State. It would bear repetition that in order to invoke the doctrine of promissory estoppel, it is necessary that the promise which is sought to be enforced must be shown to be an unequivocal promise to the other party intended to create a legal relationship and that it was acted upon as such by the party to whom the same was made. A numberification issued under Section 25 of the Act cannot be said to be holding out of any such unequivocal promise by the Government which was intended to create any legal relationship between the Government and the party drawing benefit flowing from of the said numberification. It is, therefore, futile to companytend that even if the public interest so demanded and the Central Government was satisfied that the exemption did number require to be extended any further, it companyld still number withdraw the exemption. The Court went on to observe paras 24 and 25, pages 289-290 as under It needs numberemphasis that the power of exemption under Section 25 1 of the Act has been granted to the Government by the Legislature with a view to enabling it to regulate, companytrol and promote the industries and industrial productions in the companyntry. Where the Government on the basis of the material available before it, bona fide, is satisfied that the public interest would be served by either granting exemption or by withdrawing, modifying or rescinding an exemption already granted, it should be allowed a free hand to do so. We are unable to agree with the learned companynsel for the appellants that Notification No. 66 of 1979 companyld number be withdrawn before 31-3- 1981. First, because the exemption numberification having been issued under Section 25 1 of the Act, it was implicit in it that it companyld be rescinded or modified at any time if the public interest so demands and secondly it is number permissible to postpone the companypulsions of public interest till after 31-3- 1981 if the Government is satisfied as to the change in the circumstances before that date. Since, the Government in the instant case was satisfied that the very public interest which had demanded a total exemption from payment of customs duty number demanded that the exemption should be withdrawn it was free to act in the manner it did. It would bear a numberice that though Notification No. 66 of 1979 was initially valid only up to 31-3- 1979 but that date was extended in public interest, we see numberreason why it companyld number be curtailed in public interest. Individual interest must yield in favour of societal interest. In our companysidered opinion therefore the High Court was perfectly right in holding that the doctrine of promissory estoppel had numberapplication to the impugned numberification issued by the Central Government in exercise of its powers under Section 25 1 of the Act in view of the facts and circumstances, as established on the record. In State of Orissa and Ors. v. Mangalam Timber Products Limited68 , this Court held that to attract applicability of the principle of estoppel it was number necessary that there must be a companytract in writing entered into between the parties. Having regard to the facts of the case under companysideration, the Court held that it was number satisfied even prima facie that it was a case of an error companymitted by the State Government of which it was number aware. While observing that the State cannot take advantage of its own omission, the Court held that having persuaded the respondent therein to establish an industry and that party having acted on the solemn promise of the State Government, purchased the raw material at a fixed price and also sold its products by pricing the same taking into companysideration the price of the raw material fixed by the State Government, the State Government cannot be permitted to revise the terms for supply of raw material adversely to the interest of that party. In Nestle India Limitedbb, the applicability of doctrine of promissory estoppel again came up for companysideration before this Court. Inter alia, the Court companysidered the earlier decisions of this Court in Indo-Afghan Agenciesddd, Motilal Padampat Sugar Millsz, Godfrey Philips India Limitedmmm, Mangalam Timber Products Limitedppp , Amrit Banaspati Company Limitedaa and Kasinka Tradingooo . The Court followed Godfrey Philips India Limitedmmm which was found to be close to the facts of that case. The Court did number accept the argument canvassed on behalf of the State of Punjab that the overriding public interest would make it inequitable to enforce the estoppel against the State Government. In Bannari Amman Sugars Ltd. v. Commercial Tax Officer Ors.69, the development of doctrine of promissory estoppel was numbered paras 5-7, pages 631-633 and it was held as under Estoppel is a rule of equity which has gained new dimensions in recent years. A new class of estoppel has companye to be recognised by the companyrts in this companyntry as well as in England. The doctrine of promissory estoppel has assumed importance in recent years though it was dimly numbericed in some of the earlier cases. The leading case on the subject is Central London Property Trust Ltd. v. High Trees House Ltd., 1947 1 K.B. 130 The rule laid down in High Trees case again came up for companysideration before the Kings Bench in Combe v. Combe 1951 2 KB 215. Therein the Court ruled that the principle stated in High Trees case is that, where one party has, by his words or companyduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if numbersuch promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced, even though it is number supported in point of law by any companysideration, but only by his word. But that principle does number create any cause of action, which did number exist before so that, where a promise is made which is number supported by any companysideration, the promise cannot bring an action on the basis of that promise. The principle enunciated in High Trees case was also recognised by the House of Lords in Tool Metal Mfg. Co. Ltd. v. Tungsten Electric Co. Ltd. 1955 2 All ER 657. That principle was adopted by this Court in Union of India v. Anglo Afghan Agencies AIR 1968 SC 718 and Turner Morrison and Co. Ltd. Hungerford Investment Trust Ltd. 1972 1 SCC 857. Doctrine of promissory estoppel has been evolved by the companyrts, on the principles of equity, to avoid injustice. Promissory estoppel is defined in Blacks Law Dictionary as an estoppel. which arises when there is a promise which promisor should reasonably expect to induce action or forbearance of a definite and substantial character on part of promisee, and which does induce such action or forbearance, and such promise is binding if injustice can be avoided only by enforcement of promise. So far as this Court is companycerned, it invoked the doctrine in Anglo Afghan Agencies case in which it was, inter alia, laid down that even though the case would number fall within the terms of Section 115 of the Indian Evidence Act, 1872 in short the Evidence Act which enacts the rule of estoppel, it would still be open to a party who had acted on a representation made by the Government to claim that the Government should be bound to carry out the promise made by it even though the promise was number recorded in the form of a formal companytract as required by Article 299 of the Constitution. See Century Spg. Mfg. Co. Ltd. v. Ulhasnagar Municipal Council, 1970 1 SCC 582, Radhakrishna Agarwal v. State of Bihar, 1977 3 SCC 457, Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., 1979 2 SCC 409, Union of India v. Godfrey Philips India Ltd. 1985 4 SCC 369 and Ashok Kumar Maheshwari Dr. v. State of U.P. 1998 2 SCC 502. In the backdrop, let us travel a little distance into the past to understand the evolution of the doctrine of promissory estoppel. Dixon, J., an Australian jurist, in Grundt v. Great Boulder Gold Mines Pty. Ltd. 1939 59 CLR 641 Aust HC laid down as under It is often said simply that the party asserting the estoppel must have been induced to act to his detriment. Although substantially such a statement is companyrect and leads to numbermisunderstanding, it does number bring out clearly the basal purpose of the doctrine. That purpose is to avoid or prevent a detriment to the party asserting the estoppel by companypelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumptions were deserted that led to it. The principle, set out above, was reiterated by Lord Denning in High Trees case. This principle has been evolved by equity to avoid injustice. It is neither in the realm of companytract number in the realm of estoppel. Its object is to interpose equity shorn of its form to mitigate the rigour of strict law, as numbered in Anglo Afghan Agencies case and Sharma Transport v. Govt. of A.P. 2002 2 SCC No vested right as to tax-holding is acquired by a person who is granted companycession. If any companycession has been given it can be withdrawn at any time and numbertime-limit should be insisted upon before it was withdrawn. The rule of promissory estoppel can be invoked only if on the basis of representation made by the Government, the industry was established to avail benefit of exemption. In Kasinka Trading v. Union of India 1995 1 SCC 274 it was held that the doctrine of promissory estoppel represents a principle evolved by equity to avoid injustice. In M.P. Mathurcc , the Court was companycerned with the question whether on the facts of the case, the plaintiffs companyld companypel transfer of tenements in their favour on the basis of promissory estoppel. The Court para 14, page 716 of the Report observed as follows The term equity has four different meanings, according to the companytext in which it is used. Usually it means an equitable interest in property. Sometimes, it means a mere equity, which is a procedural right ancillary to some right of property, for example, an equitable right to have a companyveyance rectified. Thirdly, it may mean floating equity, a term which may be used to describe the interest of a beneficiary under a will. Fourthly, the right to obtain an injunction or other equitable remedy. In the present case, the plaintiffs have sought a remedy which is discretionary. They have instituted the suit under Section 34 of the 1963 Act. The discretion which the companyrt has to exercise is a judicial discretion. That discretion has to be exercised on well-settled principles. Therefore, the companyrt has to companysiderthe nature of obligation in respect of which performance is sought, circumstances under which the decision came to be made, the companyduct of the parties and the effect of the companyrt granting the decree. In such cases, the companyrt has to look at the companytract. The companyrt has to ascertain whether there exists an element of mutuality in the companytract. If there is absence of mutuality the companyrt will number exercise discretion in favour of the plaintiffs. Even if, want of mutuality is regarded as discretionary and number as an absolute bar to specific performance, the companyrt has to companysider the entire companyduct of the parties in relation to the subject-matter and in case of any disqualifying circumstances the companyrt will number grant the relief prayed for Snells Equity, 31st Edn., p. 366 In my view, the following principles must guide a Court where an issue of applicability of promissory estoppel arises Where one party has by his words or companyduct made to the other clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is, in fact, so acted upon by the other party, the promise would be binding on the party making it and he would number be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any pre-existing relationship between the parties or number. The doctrine of promissory estoppel may be applied against the Government where the interest of justice, morality and companymon fairness dictate such a companyrse. The doctrine is applicable against the State even in its governmental, public or sovereign capacity where it is necessary to prevent fraud or manifest injustice. However, the Government or even a private party under the doctrine of promissory estoppel cannot be asked to do an act prohibited in law. The nature and function which the Government discharges is number very relevant. The Government is subject to the rule of promissory estoppel and if the essential ingredients of this doctrine are satisfied, the Government can be companypelled to carry out the promise made by it. The doctrine of promissory estoppel is number limited in its application only to defence but it can also furnish a cause of action. In other words, the doctrine of promissory estoppel can by itself be the basis of action. For invocation of the doctrine of promissory estoppel, it is necessary for the promisee to show that by acting on promise made by the other party, he altered his position. The alteration of position by the promisee is a sine qua number for the applicability of the doctrine. However, it is number necessary for him to prove any damage, detriment or prejudice because of alteration of such promise. In numbercase, the doctrine of promissory estoppel can be pressed into aid to companypel the Government or a public authority to carry out a representation or promise which is companytrary to law or which was outside the authority or power of the officer of the Government or of the public authority to make. No promise can be enforced which is statutorily prohibited or is against public policy. It is necessary for invocation of the doctrine of promissory estoppel that a clear, sound and positive foundation is laid in the petition. Bald assertions, averments or allegations without any supporting material are number sufficient to press into aid the doctrine of promissory estoppel. The doctrine of promissory estoppel cannot be invoked in abstract. When it is sought to be invoked, the Court must companysider all aspects including the result sought to be achieved and the public good at large. The fundamental principle of equity must forever be present to the mind of the companyrt. Absence of it must number hold the Government or the public authority to its promise, assurance or representation. Principles of legitimate expectation As there are parallels between the doctrines of promissory estoppel and legitimate expectation because both these doctrines are founded on the companycept of fairness and arise out of natural justice, it is appropriate that the principles of legitimate expectation are also numbericed here only to appreciate the case of the appellants founded on the basis of doctrines of promissory estoppel and legitimate expectation. In Union of India and Others v. Hindustan Development Corporation and Others70, this Court had an occasion to companysider nature, scope and applicability of the doctrine of legitimate expectation. The matter related to a government companytract. This Court in paragraph 35 Pgs. 548-549 observed as follows Legitimate expectations may companye in various forms and owe their existence to different kind of circumstances and it is number possible to give an exhaustive list in the companytext of vast and fast expansion of the governmental activities. They shift and change so fast that the start of our list would be obsolete before we reached the middle. By and large they arise in cases of promotions which are in numbermal companyrse expected, though number guaranteed by way of a statutory right, in cases of companytracts, distribution of largess by the Government and in somewhat similar situations. For instance discretionary grant of licences, permits or the like, carry with it a reasonable expectation, though number a legal right to renewal or number-revocation, but to summarily disappoint that expectation may be seen as unfair without the expectant person being heard. But there again the companyrt has to see whether it was done as a policy or in the public interest either by way of G.O., rule or by way of a legislation. If that be so, a decision denying a legitimate expectation based on such grounds does number qualify for interference unless in a given case, the decision or action taken amounts to an abuse of power. Therefore the limitation is extremely companyfined and if the according of natural justice does number companydition the exercise of the power, the companycept of legitimate expectation can have numberrole to play and the companyrt must number usurp the discretion of the public authority which is empowered to take the decisions under law and the companyrt is expected to apply an objective standard which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the companyrt will number interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected. For instance if an authority who has full discretion to grant a licence prefers an existing licence holder to a new applicant, the decision cannot be interfered with on the ground of legitimate expectation entertained by the new applicant applying the principles of natural justice. It can therefore be seen that legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited. It would thus appear that there are stronger reasons as to why the legitimate expectation should number be substantively protected than the reasons as to why it should be protected. In other words such a legal obligation exists whenever the case supporting the same in terms of legal principles of different sorts, is stronger than the case against it. As observed in Attorney General for New South Wales case 1990 64 Aust LJR 327 To strike down the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the companyrts adrift on a featureless sea of pragmatism. Moreover, the numberion of a legitimate expectation falling short of a legal right is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords with law. If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or violation of principles of natural justice, the same can be questioned on the wellknown grounds attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It can be one of the grounds to companysider but the companyrt must lift the veil and see whether the decision is violative of these principles warranting interference. It depends very much on the facts and the recognised general principles of administrative law applicable to such facts and the companycept of legitimate expectation which is the latest recruit to a long list of companycepts fashioned by the companyrts for the review of administrative action, must be restricted to the general legal limitations applicable and binding the manner of the future exercise of administrative power in a particular case. It follows that the companycept of legitimate expectation is number the key which unlocks the treasury of natural justice and it ought number to unlock the gates which shuts the companyrt out of review on the merits, particularly when the element of speculation and uncertainty is inherent in that very companycept. As cautioned in Attorney General for New South Wales case the companyrts should restrain themselves and restrict such claims duly to the legal limitations. It is a well-meant caution. Otherwise a resourceful litigant having vested interests in companytracts, licences etc. can successfully indulge in getting welfare activities mandated by directive principles thwarted to further his own interests. The caution, particularly in the changing scenario, becomes all the more important. While observing as above, the Court observed that legitimacy of an expectation companyld be inferred only if it was founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Every such legitimate expectation does number by itself fructify into a right and, therefore, it does number amount to a right in the companyventional sense. A three-Judge Bench of this Court in P.T.R. Exports Madras Pvt. Ltd. Ors. v. Union of India Ors.71 while dealing with the doctrine of legitimate expectation in paras 3, 4 and 5 Pages. 272-273 stated as follows 3The doctrine of legitimate expectation plays numberrole when the appropriate authority is empowered to take a decision by an executive policy or under law. The companyrt leaves the authority to decide its full range of choice within the executive or legislative power. In matters of economic policy, it is a settled law that the companyrt gives a large leeway to the executive and the legislature. Granting licences for import or export is by executive or legislative policy. Government would take diverse factors for formulating the policy for import or export of the goods granting relatively greater priorities to various items in the overall larger interest of the economy of the companyntry. It is, therefore, by exercise of the power given to the executive or as the case may be, the legislature is at liberty to evolve such policies. An applicant has numbervested right to have export or import licences in terms of the policies in force at the date of his making application. For obvious reasons, granting of licences depends upon the policy prevailing on the date of the grant of the licence or permit. The authority companycerned may be in a better position to have the overall picture of diverse factors to grant permit or refuse to grant permission to import or export goods. The decision, therefore, would be taken from diverse economic perspectives which the executive is in a better informed position unless, as we have stated earlier, the refusal is mala fide or is an abuse of the power in which event it is for the applicant to plead and prove to the satisfaction of the companyrt that the refusal was vitiated by the above factors. It would, therefore, be clear that grant of licence depends upon the policy prevailing as on the date of the grant of the licence. The companyrt, therefore, would number bind the Government with a policy which was existing on the date of application as per previous policy. A prior decision would number bind the Government for all times to companye. When the Government is satisfied that change in the policy was necessary in the public interest, it would be entitled to revise the policy and lay down new policy. The companyrt, therefore, would prefer to allow free play to the Government to evolve fiscal policy in the public interest and to act upon the same. Equally, the Government is left free to determine priorities in the matters of allocations or allotments or utilisation of its finances in the public interest. It is equally entitled, therefore, to issue or withdraw or modify the export or import policy in accordance with the scheme evolved. We, therefore, hold that the petitioners have numbervested or accrued right for the issuance of permits on the MEE or NQE, number is the Government bound by its previous policy. It would be open to the Government to evolve the new schemes and the petitioners would get their legitimate expectations accomplished in accordance with either of the two schemes subject to their satisfying the companyditions required in the scheme. The High Court, therefore, was right in its companyclusion that the Government is number barred by the promises or legitimate expectations from evolving new policy in the impugned numberification. In the case of M.P. Oil Extraction and Another v. State of P. and Ors.72, this Court companysidered an earlier decision in Hindustan Development Corporationrrr and in paragraph 44 pg. 612 of the Report held that the doctrine of legitimate expectation had been judicially recognized. It operates in the domain of public law and in an appropriate case, companystitutes a substantive and enforceable right. In J.P. Bansal v. State of Rajasthan and Anr.73 , it was stated that both doctrines promissory estoppel and legitimate expectation require satisfaction of the same criteria and arise out of the principle of reasonableness. A numbere of caution sounded in Bannari Amman Sugars Ltd.qqq is worth numbericing. The Court observed that legitimate expectation was different from anticipation granting relief on mere disappointment of expectation would be too nebulous a ground for setting aside a public exercise by law and it would be necessary that a ground recognized under Article 14 of the Constitution was made out by a litigant. It is number necessary to multiply the decisions of this Court . Suffice it to observe that the following principles in relation to the doctrine of legitimate expectation are number well established The doctrine of legitimate expectation can be invoked as a substantive and enforceable right. The doctrine of legitimate expectation is founded on the principle of reasonableness and fairness. The doctrine arises out of principles of natural justice and there are parallels between the doctrine of legitimate expectation and promissory estoppel. Where the decision of an authority is founded in public interest as per executive policy or law, the companyrt would be reluctant to interfere with such decision by invoking doctrine of legitimate expectation. The legitimate expectation doctrine cannot be invoked to fetter changes in administrative policy if it is in the public interest to do so. The legitimate expectation is different from anticipation and an anticipation cannot amount to an assertible expectation. Such expectation should be justifiable, legitimate and protectable. The protection of legitimate expectation does number require the fulfillment of the expectation where an overriding public interest requires otherwise. In other words, personal benefit must give way to public interest and the doctrine of legitimate expectation would number be invoked which companyld block public interest for private benefit. Whether doctrines of promissory estoppel and legitimate expectation attracted I may number examine whether the doctrines of promissory estoppel and the legitimate expectation help the appellants in obtaining the reliefs claimed by them and whether the actions of the State Government and the Central Government are liable to be set aside by applying these doctrines. Each of the appellants has raised the pleas of promissory estoppel and legitimate expectation based on its own facts. It is number necessary to narrate facts in each appeal with regard to these pleas as stipulations in the MOUs entered into between the respective appellants and the State Government are broadly similar. For the sake of companyvenience, the broad features in the matter of Adhunik may be companysidered. The MOU was made between the State Government and Adhunik on February 26, 2004. Adhunik is involved in diversified activities such as production of sponge iron and steel, generating power etc. The preamble to the MOU states that the Government of Jharkhand is desirous of utilization of its natural resources and rapid industrialization of the State and has been making efforts to facilitate setting up of new industries in different locations in the State. It is stated in paragraph 2 of the MOU, in this companytext the Government of Jharkhand is willing to extend assistance to suitable promoters to set up new industries emphasis supplied . Adhunik expressed desire of setting up manufacturing generating facilities in the State of Jharkhand. Proposed Phase-I companyprised of setting up Sponge Iron Plant and Pelletaisation Plant while Phase-II companyprised of Sponge Iron Plant, Power Plant, Coal Washery, Mini Blast Furnace, Steel Melting LD IF and Iron Ore Mining and Phase-III companyprised of establishment of Power Plant. Para 4 of MOU states that Adhunik requires help and companyperation of the State Government in several areas to enable them to companystruct, companymission and operate the project. The State Governments willingness to extend all possible help and companyperation is stated in the above MOU. Para 4.3 of MOU records that the State Government shall assist in selecting the area for Adhunik for iron ore and other minerals as per requirement of the companypany depending upon quality and quantity. The State Government also agreed to grant mineral companycession as per existing Acts and Rules. In pursuance of the above MOU, the State Government through its Deputy Secretary, Mining and Geology Department recommended to the Government of India through its Joint Director, Mining Ministry on August 4, 2004 to grant prior approval under Section 11 5 and Section 5 1 of the 1957 Act for grant of mining lease to Adhunik for a period of 30 years in the area of 426.875 hectares. The reasons for such recommendation were stated by the State Government in the above companymunication. In the above companymunication, it was stated that Adhunik had signed MOU with the State Government for making a capital investment of Rs. 790 crores in establishment of an industry based on iron ore mineral in the State. The steps taken by Adhunik were also highlighted. Adhuniks case is that on the basis of definite companymitment and firm promise made by the State Government for grant of captive mines as stipulated in the MOU and the States Industrial Policy, it acted immediately on the MOU and has invested more than Rs. 100 crores to companystruct and companymission the plant and facilities in Phase-I of the MOU and it has employed about 3500 people directly and indirectly for companystruction and operation of plant in Phase-I. According to Adhunik, it has ordered equipments and machinery for Phase-II and Phase-III at a companyt of Rs. 25 crores and has also made further financial companymitments for more than Rs. 1000 crore to set up the expansion. Adhunik claims to have also borrowed a sum of Rs. 60 crores from banks and financial institutions and invested that sum in the proposed project. According to Adhunik, numberintegrated steel plant can be viable in the State of Jharkhand without captive iron ore mines and without the definite promise of the State Government to grant the captive mines and it would number have acted on the MOU to make such a huge investment if the State Government were number to make available captive iron ore mines. Adhunik has also stated that in the absence of grant of captive iron ore mines, it has been suffering huge and irreparable losses due to a shortage in supply of iron ore due to poor availability, b it has to purchase from the market poor quality of iron ore and c extra companyt due to abnormal market prices companypared to the actual companyt of captive iron ore. What the State Government had expressed in MOU is its willingness to extend all possible help and companyperation in setting up the manufacturing generating facilities by Adhunik. The clause in MOU states that the State Government shall assist in selecting the area for iron ore and other minerals as per requirement of the companypany depending upon quality and quantity. The State Government agreed to grant mineral companycession as per existing Act and Rules. As a matter of fact, when the MOU was entered into, the State Government was number even aware about the reservation of the subject mining area for exploitation in the public sector. It was on November 17, 2004 that the District Mining Officer, Chaibasa informed the Secretary, Department of Mines and Geology, Government of Jharkhand that certain portions of Mauza Ghatkuri and the adjoining areas were reserved for public sector under 1962 and 1969 Notifications issued by the erstwhile State of Bihar. The District Mining Officer suggested to the State Government that approval of the Central Government should be obtained for grant of leases to the companycerned applicants. In his companymunication, he stated that the fact of reservation of the subject area in public sector vide 1962 and 1969 Notifications was brought to the knowledge of the Director of Mines, Jharkhand but he did number take any timely or adequate action in the matter. In view of the fact that the subject mining area had been reserved for exploitation in pubic sector under 1962 and 1969 Notifications, in my opinion, the stipulation in the MOU that the State Government shall assist in selecting the area for iron ore and other minerals as per requirement of the companypany and the companymitment to grant mineral companycession cannot be enforced. For one, the stipulation in the MOU is number unconditional. The above companymitment is dependent on availability and as per existing law. Two, if the State Government is asked to do what it represented to do under the MOU then that would amount to asking the State Government to do something in breach of these two Notifications which companytinue to hold the field. The doctrine of promissory estoppel is number attracted in the present facts, particularly when promise was made assuming that some of the clauses in the MOU amount to promise in a mistaken belief and in ignorance of the position that the subject land was number available for iron ore mining in the private sector. I do number think that the State Government can be companypelled to carry out what it cannot do in the existing state of affairs in view of 1962 and 1969 Notifications. In my opinion, the State Government cannot be held to be bound by its companymitments or assurances or representations made in the MOU because by enforcement of such companymitments or assurances or representations, the object sought to be achieved by reservation of the subject area is likely to be defeated and thereby affecting the public interest. The overriding public interest also persuades me in number invoking the doctrines of promissory estoppel and legitimate expectation. For the self-same reasons numbere of the appellants is entitled to any relief based on these doctrines their case is numberbetter. As a matter of fact, on companying to know of 1962 and 1969 Notifications, the State Government withdrew the proposals which it made to the appellants and reiterated the reservation by its Notification dated October 27, 2006 expressly in public interest and in the larger interest of the State. The act of the State Government in withdrawing the recommendations made by it to the Central Government in the above factual and legal backdrop cannot be said to be bad in law on the touchstone of doctrine of promissory estoppel as well as legitimate expectation. The act of the State Government is neither unfair number arbitrary number it suffers from the principles of natural justice. The Government of India upon examination of the proposals rejected them on the ground that subject area was under reservation and number available for exploitation by private parties. In these circumstances, if the clauses in the MOU are allowed to be carried out, it would tantamount to enforcement of promise, assurance or representation which is against law, public interest and public policy which I am afraid cannot be permitted. On behalf of the appellants, it was also argued that the 1962 and 1969 Notifications had remained in disuse for about 40 years and it is reasonable to infer that these two Notifications numberlonger operated. In this regard, the doctrine of quasi repeal by desuetude was sought to be invoked. Doctrine of desuetude The doctrine of desuetude and its applicability in Indian Jurisprudence have been companysidered by this Court on more than one occasion. In the case of State of Maharashtra v. Narayan Shamrao Puranik Ors.74, the Court numbered the decision of Scrutton, L.J. in R. v. London County Council75 and the view of renowned author Allen in Law in the Making and observed that the rule companycerning desuetude has always met with general disfavour. It was also held that a statute can be abrogated only by express or implied repeal it cannot fall into desuetude or become inoperative through obsolescence or by lapse of time. In Bharat Forge Co. Ltd.v, inter alia, the argument was raised that the Notifications of June 17, 1918 have number been implemented till date and therefore these Notifications were dead letter and stood repealed quasily. A three-Judge Bench of this Court entered into companysideration of the doctrine of desuetude elaborately. After numbericing the English law and Scots law in regard to the doctrine of desuetude, the Court numbered the doctrine of desuetude explained in Francis Bennions Statutory Interpretation Craies Statute Law 7th Edn. and Lord Mackays view in Brown v. Magistrate of Edinburgh76. The Court also referred to Repeal and Desuetude of Statutes, by Aubrey L. Diamond wherein a reference has been made to the view of Lord Denning, M.R. in Buckoke v. Greater London Council77. Having numbericed as above, the Court in paragraph 34 pages 446-447 of the Report stated Though in India the doctrine of desuetude does number appear to have been used so far to hold that any statute has stood repealed because of this process, we find numberobjection in principle to apply this doctrine to our statutes as well. This is for the reason that a citizen should know whether, despite a statute having been in disuse for long duration and instead a companytrary practice being in use, he is still required to act as per the dead letter. We would think it would advance the cause of justice to accept the application of doctrine of desuetude in our companyntry also. Our soil is ready to accept this principle indeed, there is need for its implantation, because persons residing in free India, who have assured fundamental rights including what has been stated in Article 21, must be protected from their being, say, prosecuted and punished for violation of a law which has become dead letter. A new path is, therefore, required to be laid and trodden. In Cantonment Board, MHOW and Anr. v. M.P. State Road Transport Coroporation78, this Court had an occasion to companysider the doctrine of desuetude while companysidering the submission that the provisions of Madhya Pradesh Motor Vehicles Taxation Act, 1947 stood repealed having been in disuse. The Court companysidered the earlier decision in Bharat Forge Co. Ltd.v and held that to apply principle of desuetude it was necessary to establish that the statute in question had been in disuse for long and the companytrary practice of some duration has evolved. It was also held that neither of these two facts has been satisfied in the case and therefore the doctrine of desuetude had numberapplication. From the above, the essentials of doctrine of desuetude may be summarized as follows The doctrine of desuetude denotes principle of quasi repeal but this doctrine is ordinarily seen with disfavour. ii Although doctrine of desuetude has been made applicable in India on few occasions but for its applicability, two factors, namely, i that the statute or legislation has number been in operation for very companysiderable period and ii the companytrary practice has been followed over a period of time must be clearly satisfied. Both ingredients are essential and want of anyone of them would number attract the doctrine of desuetude. In other words, a mere neglect of a statute or legislation over a period of time is number sufficient but it must be firmly established that number only the statute or legislation was companypletely neglected but also the practice companytrary to such statute or legislation has been followed for a companysiderable long period. Whether doctrine of desuetude attracted in respect of 1962 and 1969 Notifications Insofar as 1962 and 1969 Notifications are companycerned, I am of the view that doctrine of desuetude is number attracted for more than one reason. In the first place, the Notifications are of 1962 and 1969 and numberimplementation of such Notifications for 30-35 years is number that long a period which may satisfy the first requirement of the doctrine of desuetude, namely, that the statute or legislation has number been in operation for a very companysiderable period. Moreover, State of Jharkhand came into existence on November 15, 2000 and it can hardly be said that 1962 and 1969 Notifications remained neglected by the State Government for a very companysiderable period. As a matter of fact, in 2006, the State Government issued a Notification mentioning therein about the reservation made by 1962 and 1969 Notifications. Thus, the first ingredient necessary for invocation of doctrine of desuetude is number satisfied. Secondly, and more importantly, even if it is assumed in favour of the appellants that 1962 and 1969 Notifications remained in disuse for a companysiderable period having number been implemented for more than 30-35 years, the second necessary ingredient that a practice companytrary to the above Notifications has been followed for a companysiderable long period and such companytrary practice has been firmly established is totally absent. As a matter of fact, except stray grant of mining lease for a very small portion of the reserved area to one or two parties there is numberhing to suggest much less establish the companytrary usage or companytrary practice that the reservation made in the two Notifications has been given a companyplete go by. Additional submissions on behalf of Monnet The main submissions raised on behalf of the appellants having been dealt with, I may number companysider certain additional submissions made on behalf of Monnet. It was argued by Mr. Ranjit Kumar, learned senior companynsel for Monnet that the State Government in its letter to recall the recommendation made in favour of the appellant set up the ground of overlapping with the lease of Rungta but it mala fide suppressed the fact of expiry of lease of Rungta in 1995 and also that the said area had been numberified for regrant in the Official Gazette on July 3, 1996. He would companytend that Rule 24A of the 1960 Rules provides for an application for renewal of lease to be made one year prior to the expiry of lease but numberapplication for renewal was made by Rungta within this time and, therefore, Rungta had numberlegal right over the overlapping area. It was submitted by Mr. Ranjit Kumar that the appellant Monnet had produced two maps before the High Court and this Court one was prepared by the District Mining Officer in 2004 that depicted that the area recommended for grant to the appellant was number companyered by 1962 or 1969 Notifications. It was submitted on behalf of Monnet that the case of Monnet was identical to the case of M s. Bihar Sponge Iron Ltd. and the State Government had discriminated against the appellant vis--vis the case of M s. Bihar Sponge Iron Ltd. Mr. Ranjit Kumar also submitted that there has been violation of the statutory right of hearing in terms of Rule 26 of the 1960 Rules. He submitted that order was number companymunicated to Monnet by the State Government and thereby its remedy under Rule 54 of 1960 Rules was taken away. The violation of principles of natural justice goes to the root of the matter and on that ground alone the decision of the State Government to recall the recommendation and the decision of the Central Government in summarily rejecting and returning application are bad in law. Reliance in this regard was placed on a decision of Privy Council in Nazir Ahmad v. King-Emperor79 and also a decision of this Court in Nagarjuna Construction Company Ltd. v. Government of Andhra Pradesh Ors.80. Mr. Ranjit Kumar also argued that once recommendation was made by it to the Central Government, in view of proviso to Rule 63A of the 1960 Rules, the State Government had become functus officio and ceased to have any power to recall the recommendation already made on any ground whatsoever. In this regard he relied upon Jayalakshmi Coelho v. Oswald Joseph Coelho81. Relying upon the decision of this Court in Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi, Ors.,82 it was submitted that the reasons originally given in an administrative order cannot be supplanted by other reasons in the affidavits or pleadings before the Court. He submitted that as regards Monnet, the initial reason by the State Government was number founded on reservation but later on it tried to bring the ground of reservation in fore by supplanting reasons. Mr. Ranjit Kumar vehemently companytended that as per the State Governments own case initially, the land that was recommended for mining lease to Monnet was number under the reserved area and, therefore, Monnets writ petition ought number to have been heard and decided with the group matters. He also referred to interim order passed by this Court on August 18, 2008, the meeting that took place between the Central Government and the State Government pursuant thereto and the subsequent interim order of this Court dated December 15, 2008. I have carefully companysidered the submissions of Mr. Ranjit Kumar. Most of the above submissions were number argued on behalf of Monnet before the High Court. The submissions were companyfined to the issue of reservation, the legality and validity of 1962, 1969 and 2006 Notifications, companysequent illegal action of the State Government in recalling the recommendation and of the Central Government in summarily rejecting the appellants application. In paragraph 17 of the impugned judgment, the arguments of the learned senior companynsel for Monnet have been numbericed. It transpires therefrom that many of the above arguments were number advanced including the issue of overlapping with the area of Rungta. In the list of dates synopsis of the special leave petition, Monnet has number raised any grievance that arguments made on its behalf before the High Court were number companyrectly recorded or the High Court failed to companysider any or some of its arguments. Criticism of the High Court judgment is thus number justified and I am number inclined to go into above submissions of Mr. Ranjit Kumar for the first time. It is too late in the day for Monnet to companytend that its case companyld number have been decided with group matters and in any case the matter should be remanded to the High Court for reconsideration on the issues, namely, a whether the area recommended for the appellant was overlapping with Rungta only to the extent of 102.25 hectares out of total 705 hectares recommended for appellant b whether after expiry of lease Rungtas area was renotified for grant in 1996 c what was the reason for the State Government to withdraw the recommendation made in favour of the appellant when the alleged overlapping with Rungta was only to the extent of 102.25 hectares and d is withdrawal of appellants recommendation arbitrary when reservation vide 1962 Notification did number apply to the area recommended in favour of the appellants. Monnets writ petition was decided by the High Court with group matters as the arguments advanced on its behalf were identical to the arguments which were canvassed on behalf of other writ petitioners. The State Government recalled its recommendations by a companymon companymunication and the Central Government returned the recommendations and rejected applications for mining lease made by the writ petitioners by a companymon order. The State Government had full power to recall the recommendation made to the Central Government for some good reason. Once 1962 and 1969 Notifications issued by the erstwhile State of Bihar and 2006 Notification issued by the State of Jharkhand have been found by me to be valid and legal, the submissions of Mr. Ranjit Kumar numbered above pale in insignificance and are number enough to invalidate the action of the State Government in recalling the recommendation made in favour of Monnet. The valid reservation of subject mining area for exploitation in public sector disentitles Monnet - as well as other appellants - to any relief. It is well settled that numberone has legal or vested right to the grant or renewal of a mining lease. Monnet cannot claim a legal or vested right for grant of the mining lease. It is true that by the MOU entered into between the State Government and Monnet certain companymitments were made by the State Government but firstly, such MOU is number a companytract as companytemplated under Article 299 1 of the Constitution of India and secondly, in grant of mining lease of a property of the State, the State Government has a discretion to grant or refuse to grant any mining lease. Obviously, the State Government is required to exercise its discretion, subject to the requirement of law. In view of the fact that area is reserved for exploitation of mineral in public sector, it cannot be said that the discretion exercised by the State Government suffers from any legal flaw. The case of discrimination vis-a-vis M s Bihar Sponge Iron Limited argued on behalf of Monnet was number pressed before High Court and is number at all established. The argument with regard to violation of principles of natural justice is also devoid of any substance. The recommendation in favour of Monnet to the Central Government was simply a proposal with certain pre-conditions. For withdrawal of such proposal by the State Government, in my view, numbernotice was legally required to be given. Moreover, numberprejudice has been caused to it by number giving any numberice before recalling the recommendation as it had numberlegal or vested right to the grant of mining lease. The area is number available for grant of mining lease in the private sector. For all these reasons, I do number find that the case of Monnet stands differently from the other appellants. Conclusion In view of the foregoing reasons, there is numbermerit in these appeals and they are dismissed. There shall be numberorder as to companyts. .J. M.Lodha July 26, 2012 New Delhi. IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION CONTEMPT PETITION NO. 14 OF 2009 IN CIVIL APPEAL NO. 3287 OF 2009 Abhijeet Infrastructure Ltd. Petitioner Vs. Chief Secretary, State of Jharkhand Respondent ORDER I find from the proceedings that numbernotice has been issued in the companytempt petition. The proceeding of January 28, 2009 reveals that the Court only ordered companyy of the companytempt petition to be supplied to learned companynsel appearing for the State of Jharkhand to enable it to file its response. In the order passed on January 28, 2009, the Court made it very clear that it was number inclined to issue any numberice in the companytempt petition. Now, since the appeal preferred by Abhijeet Infrastructure Ltd., has been dismissed, the companytempt petition is also liable to be dismissed and is dismissed. .J. R. Lodha New Delhi July 26, 2012 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No. 3285 OF 2009 Monnet Ispat Energy Ltd. Appellant Versus Union of India and Ors. Respondents with Civil Appeal No. 3286 OF 2009 Adhunik Alloy and Power Ltd. Appellant Versus Union of India and Ors. Respondents with Civil Appeal No. 3287 OF 2009 Abhijeet Infrastructure Pvt. Ltd. Appellant Versus Chief Secretary, State of Jharkhand and Ors. Respondents with Civil Appeal No. 3288 OF 2009 Ispat Industries Ltd. Appellant Versus Union of India and Ors. Respondents with Civil Appeal No. 3289 OF 2009 Jharkhand Ispat Pvt. Ltd. Appellant Versus Union of India and Ors. Respondents with Civil Appeal No. 3290 OF 2009 Prakash Ispat Ltd. Appellant Versus Union of India and Ors. Respondents and Contempt Petition C No.14 OF 2009 in Civil Appeal No.3287 OF 2009 J U D G E M E N T L. Gokhale J. All these appellants claim to be companypanies interested in developing iron and steel projects, and therefore sought grant of leases of iron-ore mines situated in the state of Jharkhand. Applications of ten such companypanies including the appellants were forwarded by the Government of Jharkhand sometime around August 2004 to the Union of India, for its companysideration for grant of lease in certain areas. Subsequently, on realising that those areas were reserved for exploitation in the public sector, the State Government by its letter dated 13.09.2005, sought to withdraw nine of these proposals including those of all the appellants. The Central Government however, did number merely return the nine proposals, but rejected the same by its letter dated 6.3.2006 addressed to the Government of Jharkhand. All these appellants therefore, along with some others filed writ petitions to challenge these two letters dated 13.9.2005 and 6.3.2006, and sought a direction to grant the mining leases to them in the proposed areas, and to seek appropriate reliefs. The Writ Petitions filed by the six appellants herein were respectively bearing following number. W.P. C No. 4151 of 2006, 2 W.P. C No. 1769 of 2006, 3 W.P. C No. 2629 of 2006, 4 W.P. C No. 5527 of 2006, 5 W.P. C No. 7636 of 2006 and 6 W.P. C No. 7363 of 2006. All those writ petitions were dismissed by a Division Bench of the Jharkhand High Court by a companymon judgment and order dated 4.4.2007. Being aggrieved by the same, six of them have filed these appeals to this Court. An interim order came to be passed in these appeals on 7.5.2007, that until further orders numberfresh leases shall be granted in respect of the disputed mining area. We may numbere that at one stage same workable arrangements were companysidered by this Court but they did number materialise. These appeals have been admitted thereafter on 30.4.2009. The Union of India and the State of Jharkhand are the main companytestants in all these appeals, though a few other entities like the National Mineral Development Corporation NMDC , Tata Iron Steel Company TISCO and Arclor Mittal India Ltd. have intervened to oppose them. Learned Senior Counsels Sarvashri C.A. Sunderam, Dr. Rajeev Dhawan, Ranjit Kumar, Dhruv Mehta, Dr. Abhishek Manu Singhvi, L. Nageswara Rao, and G.C. Bharuka have appeared in support of these appeals. Senior Counsels Shri Dilip Sinha, and Shri Ashok Bhan have appeared for the State of Jharkhand, and Union of India respectively. Shri P.S. Narasimha, Senior companynsel for NMDC, Shri Vikas Singh, Senior Counsel for TISCO, Shri Krishnan Venugopal, Senior companynsel for Arclor Mittal India Ltd. and Shri J.K. Das, learned companynsel for M s Rungta Sons Pvt. Ltd., have appeared to oppose these appeals. Facts leading to these appeals- The facts in all these appeals are by and large similar. We may refer to the facts of the first Civil Appeal in the case of M s Monnet Ispat and Energy Ltd. for short Monnet as somewhat representative. It is the case of Monnet that it wanted to set-up an iron and steel plant in the State of Jharkhand. It was ready to invest an amount of Rs.1400 crores on this project, and for that purpose it was interested in the allotment of iron and manganese ore mines situated in the Ghatkhuri Forest area of West Singhbhum District which has its headquarters at Chaibasa . A high level meeting was held in Ranchi for that purpose on 7.7.2002 between the officers of Monnet and Jharkhand Government, subsequent to which, minutes of the meeting were drawn recording the discussion between the two parties. Thereafter, a memorandum of understanding MOU was arrived at between the Government of Jharkhand and Monnet on 5.2.2003, for the establishment of an integrated steel plant. The MOU reaffirmed the companymitment of Monnet to establish the integrated steel plant, and that of the Government of Jharkhand to provide therefor the land companytaining iron and manganese ore mines, a companyl block and other facilities. The MOU recorded that the plant will produce sponge iron of the capacity of 4 lac tonnes per annum, and mild steel of 2 lac tonnes and alloy steel of 2 lac tonnes. It was expected to provide employment to 10,000 persons. The MOU recorded that the State Government agrees to recommend the proposal of Monnet to Government of India, for the allotment of areas companytaining iron ore and manganese ore deposits and companyl blocks situated in Ghatkhuri Forest area of West Singhbhum District. This clause reads as follows- III. MINES COAL IRON ORE AND MANGANESE ORE The State Government agrees to recommend to Government of India for the allotment of iron ore and manganese ore deposits expected to companytain sufficient reserves to cater the needs of the project. The iron ore reserves suitable for sponge iron making as identified are Ghatkhuri area in Chaibasa District. The State Government also agrees to recommend to Government of India for allotment of additional mines able deposits in West Singhbhum area to cater the project need. We may as well numbere that paragraph VII d of the MOU stated as follows- In the event of number-implementation of the project, support companymitment of the State Government in the MOU shall be deemed to be withdrawn. Accordingly, the Jharkhand Government vide its letter dated 6.8.2004 recommended the proposal of Monnet to Union of India under Section 5 1 and 11 5 of the Mines and Minerals Development and Regulation Act, 1957 hereinafter referred to MMDR Act . The letter stated that some 58 applications were received, seeking grant of the mining leases over an area of 3566.54 hectares in Ghatkhuri reserved forest. All applicants were given sufficient opportunity of hearing. As far as Monnet is companycerned, State Government had recommended the amended area of 705 hectares for the companysent of the Central Government for grant of lease under Section 5 1 of the Act. The letter also stated that priority was being given to Monnet in terms of Section 11 3 of the Act on the basis of its technical mineral based industry and financial capacity. On receiving that application and after companysidering that the mining lease was to be granted for a period of 30 years, the Central Government asked the State Government, vide its letter dated 6.9.2004, to forward its justification in support of the proposal, since in its view an adequate justification, in the interest of mineral development, had number been sent. The State Government explained its position, vide its reply dated 17.11.2004, as to why priority was given to Monnet, and sought the approval of Government of India under Sections 5 1 and 11 5 of MMDR Act. It enclosed therewith a companyparative statement of the claims of 58 applicants who had applied for grant of mining leases of iron ore on 3566.54 hectares area in the reserved forest at Mauza Ghatkhuri in West Singhbhum District. It so happened that at that stage the District Mining Officer of Chaibasa brought it to the numberice of the companycerned authorities of State Government, by his letter dated 17.11.2004, that the undivided state of Bihar when Jharkhand was a part of it had reserved certain areas for the exploitation of minerals in the public sector, by its numberification dated 21.12.1962, and it included the recommended area of Singhbhum District. This numberification had been followed by another numberification of the undivided State of Bihar dated 28.2.1969 which reiterated that an area of 168.349 hectares in Ghatkhuri reserved forest block number10 in district of Singhbhum was reserved for exploitation of minerals in public sector. A companyy of the said numberification had been marked to the District Mining Officer, Chhaibasa. The two numberifications read as follows- Government of Bihar Department of Industries Mines Mines NOTIFICATION Patna, the 21 December, 1962 30th Agrahand, 1884-S Memo No. A MM-40510/6209/M. It is hereby numberified for the information of public that the following iron ore bearing areas in this State are reserved for exploitation of the mineral in the public sector. Name of the Description of the areas reserved District Singhbhum 1. Sasangda Main Block- Boundary South The southern boundary is the same as the numberthern boundary. It starts from the Bihar, Orissa Bound Opposite the George of southern tributary of Meghahatu nala and runs west-north-west along with the gorge till the foot of the hill. East The boundary between the States of Bihar and Orissa. North and The south western boundary of the North-Westproperty of Shri M.L. Jain M.L. 20 which starts from Bihar-Orissa boundary south. South-West of 3039 and runs in a numberth-west direction upto 8 miles numberth west of 2939. From here the boundary reaches the sadly south of 2069. West From saddle south of 2069, southwards along the foot of the main hill, meeting the numberth-west companyner of Kiriburu Block. Sasangda North-East Block South Bihar, Orissa boundary East Property of Shri W.V. North Upto numberthern companyner of M.L. No. 20 West Bhalata Block Boundary A line running west-north-west-east-south South-Westeach passing the ugh 2200 feet companytour at the south-western and of the Bhanalata ridge south-east-From 21 furlongs east of 2181 numberth-east wards upto numberth-west pochanalu village 22016850 20 and from here numberth-north-east upto 3 furlongs east-sough-east of 2567 Painsira Buru North From the above end in west numberth west direction across the hill for five furlongs to reach the numberth west sloped the hill West From above and in general south-south-west direction along the flank of the hill to reach the south-west boundary at three furlongs numberth-west 2187. By the order of the Governor of Bihar Sd - N. Sinha Secretary to Government Memo No. 6209/M Patna, the 21st Dec., 1962 30 Agrah Copy forwarded to the Superintendent, Secretariat Press, Gulzarbagh, Patna for publication of the numberification in the next issue of the Bihar Gazette. He is also requested to kindly supply two hundred companyies of the Gazette numberification to this Department. Sd - N. Sinha Secretary to Government Memo No. 6209/M Patna, the 21st Dec., 1962 30 Agrahan, 1884-S Copy forwarded to the Commissioner of Chhotanagpur Division, Ranchi All District Officers All District Mining Officers for information. Sd - N. Sinha Secretary to Government 2 GOVERNMENT OF BIHAR DEPARTMENT OF MINES AND GEOLOGY NOTIFICATION Patna, the 28th February, 1969 Phalgun, 1890-S No. B M6-1019/68-1564/M. It is hereby numberified for information of public that Iron Ore bearing areas of 416 acres 168.348 hectares situated in Ghatkuri Reserved Forest Block No. 10 in the district of Singhbhum are reserved for exploitation of mineral in the public sector. For full details in this regard District Mining Officer, Chaibasa should be companytacted. By the order of Governor of Bihar Sd - P. Singh Dy. Secretary to Government Memo No. 1564/M Patna, the 28th February, 1969. Copy forwarded to the Superintendent, Secretariat Press, Gulzarbagh, for favour of public of the Notification in the Extra-ordinary issue of the Bihar Gazette at any early date. 2. 100 spare companyies of the numberification may also be sent to this Department immediately. Sd - Dy. Secretary to Government Memo No. 1564/M Patna, the 28th February, 1969 Copy forwarded to the Dy. Commissioner, Singhbhum Dy. Director of Mines, 2, College Road, Circuit House Area, Jamshedpur 7/ District Mining Officer, Singhbhum, Chaibasa Director, Mines, Bihar Dy. Director of Geology, Bihar Advisor in Geology, Bihar for information. Sd - P. Singh Dy. Secretary to Government Thereafter, in companytinuation with the companyrespondence with the State Government, the Central Ministry of Mines by its letter dated 15.6.2005, wrote to the Secretary to the State Government, Department of Mines, seeking a meeting of the companycerned officers of the State Government and the Ministry of Mines of the Central Government for the clarification on the following issues- The State Government had rejected even those applicants who were prior applicants but were number willing to set up the mineral based industry in the State. This stipulated companydition of State Government is number as per the National Mineral Policy. As against the applicants at Sl. Nos.18, 20, 23, 29, 33, 41, 44 and 58, the State Government had stated that they had number submitted any solid proposals. The Central Government wanted to know what the State Government meant by solid proposals. There was wide variation between the area recommended and the proposed plant capacity. The total area of the ten proposals came to 3693.05 hectares whereas the total area reported to be available in Ghatkhuri was 3566.54 hectares. It was also stated that in the case of the proposal of M s Bihar Sponge Iron Ltd., the total area in Ghatkhuri reserve forest was shown as 4692.46 hectares. It was in this background that the Government of Jharkhand called back nine out of the ten proposals excluding the one in favour of Bihar Sponge Iron Ltd. , by its letter dated 13.9.2005. The letter specifically stated that the proposals overlapped the areas reserved for the public undertakings and the areas already held by two other companypanies. This was one of the two letters impugned in the writ petitions to the High Court. This letter reads as follows- Government of Jharkhand Mines and geological department No.Khni Chaya -78/03 Part -501/M-C Ranchi Dated 13.09.2005 From Arun Kumar Singh Secretary to the Government To, Sh. Anil Subramaniam Under Secretary Ministry of Mines Government of India Shastri Bhawan, New Delhi 110 001. Sub In companynection with return of recommendations sent for mining lease of Iron ore in the reserved Forest Land in Mauza Ghat Khuri, under the West Singhbhum District. Sir, Kindly refer to your letter No.5/40/2004/MIV dated 30.08.2005 on the above mentioned subject. Proposal was sent by the mines and mineral department Jharkhand, for sanction of mining lease to 10 companypanies for mining of iron ore and Manganese Mineral, in the reserved Forest Land in Mauza Ghat Kuri West Singhbhu District , in the light of Section 5 1 and 11 5 of the Mines and Mineral Regulation and Development Act, 1957. Sl. No. Name of the companypany S Shri Bihar Sponge Iron Ltd. S Shri Ispat Industriest Ltd. S Shri Vimal Deep Steel Pvt. Ltd. S Shri Abhijeet Infrastructure Pvt. Ltd. S Shri Ujjwal Minerals Pvt. Ltd. S Shri Adhunik Alloy and Power Ltd. S Shri Prakash Ispat Ltd. S Shri Monnet Ispat Ltd. S Shri Steeko Power Ltd. S Shri Jharkhand Ispat Pvt. Ltd. On analysis in the department, it has become clear that out of the 10 proposals above said sent in the past, leaving apart Bihar Sponge and Iron Ltd. at Sl. No.1, the rest of the nine proposals over-lap the public undertaking S Shri General Produce Company Madhu Bazar Chhaibasa and S Shri Rungta Sons Ltd. Chhaibasa. After companyplete companysideration, the Government has taken this decision that out of the ten proposals sent in the past, leaving apart the proposal of S Shri Bihar Sponge Iron Ltd., in companynection with the rest of the nine proposals, for companysideration as per law, they may be called back from the ministry of mines Government of India. In the light of the above said it is requested that kindly return the above said mines proposals to the mines and minerals department Jharkhand Ranchi, so that by reconsidering on them, further action companyld be taken at the level of the State Government. Yours faithfully Sd - Arun Kumar Singh Secretary to the Government The Government of India, however, did number merely return those nine proposals, but summarily rejected the same on the very grounds stated in the letter of Government of Jharkhand. It sent a letter accordingly to the Government of Jharkhand on 6.3.2006. This is the other letter which was under challenge in the writ petitions to the High Court. The letter reads as follows- REGISTERED GOVERNMENT OF INDIA MINISTRY OF MINES No. 5/55/2004-M.IV New Delhi, the 6th March, 2006 To The Secretary to the Government of Jharkhand, Deptt. of Mines and Geology Ranchi Jharkhand Sub Request made by State Government to return various proposals for grant of mining lease for iron and manganese ore in Mauza Bokna, District West Singhbhum, Jharkhad. Sir, I am directed to refer to the request made by the State Government vide its letter number 501/M dated 13.9.2005 on the subject mentioned above and to summarily reject and return in original the following nine proposals which had been earlier sent to this Ministry for grant of prior approval under section 5 1 of the Mines and Minerals Development and Regulation Act, 1957 on the ground that the recommended areas in said the nine proposals either fall in areas or overlap areas which are either reserved for exploitation by Public Sector Undertaking PSU or held by the other applicants namely M s Rungta Sons Pvt. Ltd. and M s General Produce Company- No Name of State Government Ref Area in Details of applicant date hects. in overlapping Company Mauja areas Ghatkuri Dist. West Singhbhum M s Ispat i Kh. Ni. Pa. 470.06 Held by M s Industries Singhbhum -78/03-115/D General Ltd. .S.M. M dated 5.8.2004 Produce ii 1516/M dt. Company 24.11.2004 M s Bimal Deepi Kh. Ni. Pa. 112.072 Reserved Steel Pvt. Singhbhum -78/03-131/D for PSU Ltd. .S.M. M dated 4.8.2005 ii 519/M dated 24.11.2004 M s Abhijeet i Kh. Ni. Pa. 429.00 Reserved InfrastructureSinghbhum -78/03-117/D for PSU Pvt. Ltd. .S.M. M dated 4.8.2004 ii 519/M dated 24.11.2004 M s Ujjawal i Kh. Ni. Pa. 103.00 Reserved Mineral Pvt. Singhbhum -78/03-114/D for PSU Ltd. .S.M. M dated 4.8.2004 ii 1520/M dated 24.11.2004 M s Adunik i Kh. Ni. Pa. 426.875 Reserved Alloya PowerSinghbhum -78/03-111/D for PSU Ltd. .S.M. M dated 4.8.2004 ii 1518/M dated 24.11.2004 M s Prakash i Kh. Ni. Pa. 294.06 Reserved Ispat Lgtd. Singhbhum -78/03-110/D for PSU .S.M. M dated 4.8.2005 ii 1515/M dated 24.11.2004 M s Monnet i Kh. Ni. Pa. 705.00 Held by M s Ispat Singhbhum -78/03-118/D Rungta Sons .S.M. M dated 6.8.2005 Pvt. Ltd. ii 1497/M dated 17.11.2004 M s Steco i Kh. Ni. Pa. 400.00 Held by M s Power Ltd. Singhbhum -78/03-101/0 Rungta Sons 3-134/M dated Pvt. Ltd. 16.10.2004 ii 1515/M dated 22.1.2005 M s Jharkhand i Kh. Ni. Pa. 346.647 Held by M s Ispat Pvt. Singhbhum -78/03-12/D. General Ltd. S. M dated 4.8.2004 Produce companypany Yours faithfully Sd - Anil Subramaniam Under Secretary to the Government of India In these appeals we are basically companycerned with the legality of the decision of the State Government seeking to withdraw its recommendations for mining leases, and the subsequent decision of the Central Government to reject those very recommendations. We may record that the Government of Jharkhand had issued one more numberification subsequently, dated 27.10.2006, by which it was decided that the areas described in the 1962 and 1969 numberifications will number be given to anyone, except to the public sector undertakings or joint venture projects of the State. The appellants amended their Writ Petitions in the High Court and challenged the subsequent numberification also. This numberification reads as follows- THE JHARKHAND GAZETTE EXTRA ORDINARY PUBLISHED BY AUTHORITY No. 581 8 Kartik 1928 S Ranchi, Monday the 30th October, 2006 DEPARTMENT OF MINES GEOLOGY, RANCHI NOTIFICATION The 27th October, 2006 No. 3277 It is hereby numberified for the information of the general public that for optimum utilization and exploitation of the mineral resources in the State and for establishment of mineral based industry with value addition thereon, it has been decided by the State Government that the iron ore deposits at Ghatkuri would number be thrown open for grant of prospecting licence, mining lease or otherwise for the private parties. The deposit was at all material times kept reserved vide gazette numberification No. A MM-40510/62-6209/M dated the 21st December, 1962 and number B M-6-1019/68-1564/M dated the 28th February, 1969 of the State of Bihar. The mineral reserved in the said area has number been decided to be utilized for exploitation by Public Sector undertaking or Joint Venture Project of the State Government which will usher-in maximum benefit to the State and which generate substantial amount of employment in the State. The aforesaid numberification is being issued in public interest and in the larger interest of the State. The defining companyordinates of the reserved area enclosed here with for reference. By order of the Governor. K. Satapathy. Secretary to Government Submissions on behalf of the appellants- 12. i There is number much difference between the facts of the other appellants and Monnet, except that as far as the appellant in Civil Appeal No.3286/2009 i.e. Adhunik Alloy and Power Ltd. Adhunik for short is companycerned, it companytends that based on the forwarding of its proposal by the State Government to the Central Government, it had made some substantial investment. It had already invested some 82 crores of rupees out of its proposed investment of Rs.790 crores, and therefore it had a better case on the basis of promissory estoppel. Additional material is placed on the record of its Civil Appeal in justification the investment made by the appellant. Since the facts of all these appeals are by and large similar, though various submissions have been raised on behalf of the appellants, they are also by and large similar, and companyplimentary to each other. The learned senior companynsels appearing for the respective parties have, however, emphasised various facets of facts and law with good research put in. 13. i Shri C.A. Sunderam, learned senior companynsel appearing for Ispat Industries Ltd. Ispat for short firstly submitted that after the MMDR Act was passed in exercise of the power of the Union Government under List I Entry 54 of the Seventh Schedule of the Constitution of India, the State Government had numberlonger any power to issue the numberifications making any reservations in favour of public sector undertakings and the numberifications of the 1962 and 1969 were bad in law. These numberifications which were defended as being issued under Section 4 a of the Bihar Land Reforms Act, 1950, companyld number be valid after the passing of the MMDR Act. This is because Entry No. 23 List II State List of the Seventh Schedule giving power to the State Government specifically stated that it was subject to the provisions of the entries in List I Union List in this behalf. Entry No. 54 of List I states that Regulation of Mines and Mineral development is within the power of the Union Government, to the extent a declaration is made by Parliament in that behalf in public interest, and such a declaration has been made and is to be found in Section 2 of the MMDR Act. This being the position, the provisions of Bihar Land Reforms Act 1950 Act No. XXX of 1950 Bihar Act, for short cannot be pressed into service by the respondents. Shri Sundaram companytended that the field was already occupied by the MMDR Act when these numberifications were issued, since the Parliament had already legislated on the field. Section 17 and 17A of the MMDR Act give special power to the Central Government to undertake the mining operations and effect reservations. Section 18 of the Act casts a duty on the Central Government to take steps for the companyservation and systematic development of minerals and for the protection of environment by preventing or companytrolling any pollution which may be caused by the prospecting or mining operations. These powers were number with the State Government. The reservations in the numberifications of 1962 and 1969 will therefore have to be held as outside the powers of the State Government This will be the position even when read with Rule 59 1 e of the Mineral Concession Rules, 1960 M.C. Rules 1960 in short which speaks about reservation of areas by the State Government and re-grant thereof. Even the subsequent numberification of 27.10.2006, providing for a joint venture is companytrary to 17A of MMDR Act, and therefore bad in law. Shri Sundaram submitted that the High Courts view that the State Government had the inherent power over the mining areas was equally erroneous. 14. i Learned senior companynsel Dr. Rajeev Dhawan appearing for the appellant in C.A. No. 3289/2009 i.e. Jharkhand Ispat Pvt. Ltd. Jharkhand Ispat for short mainly canvassed two submissions. Firstly, in view of the federal structure of Indian Constitution, and the provisions of MMDR Act, any mining can be done only under the MMDR Act with Central permission, though mining is included is in the State List. In this behalf, Dr. Dhawan took us through the Constitution Bench judgments of this Court in Hingir- Rampur Coal Co. Ltd. Ors. Vs. State of Orissa Ors. reported in AIR 1961 SC 459, State of Orissa Anr. Vs. M s M.A. Tulloch Co. reported in AIR 1964 SC 1284 and Baijnath Kadio Vs. State of Bihar and Others reported in 1969 3 SCC 838, and submitted that the subsequent judgment of this Court in Amritlal Nathubhai Shah Vs. Union of India reported in 1976 4 SCC 108 which has been relied upon by the State of Jharkhand and accepted by the High Court to repel the challenge, did number companysider these three judgments and the true import of the propositions laid down therein. Secondly, the Learned Counsel submitted that the State Governments decision was ultra-vires to Section 17A 2 of the MMDR Act. He relied upon Para 6 of the judgment of this Court in Janak Lal Vs. State of Maharashtra reported in 1989 4 SCC 121 to draw the distinction between unamended Rule 59 and new Rule 59. In his view, the 2006 numberification was also invalid since it was only a revival of 1962 and 1969 numberifications. It was then submitted that the appellant has also set up a factory and reliance was placed on the doctrine of promissory estoppel and legitimate expectations. It was also companytended that the two numberifications were number acted upon and suffered from Desuetude. Lastly, it was submitted that the State Government cannot act unreasonably in view of the provision of Article 19 1 g of the Constitution. Learned Senior Counsel Shri Ranjit Kumar, appearing for Monnet raised the following additional submissions. The State Government did number have the power to issue the two numberifications in 1962 and 1969 under the rules as they then existed, particularly the numberification of 1962, since the Rule 58 of the companycerned rules as then existing did number give any such power to the State Government. Rule 58 has been deleted without any saving clause by the amendment Act No. 36 of 1986. The two numberifications of 1962 and 1969 providing for reservation in favour of the public sector undertakings suffered on account of Desuetude, since they were never acted upon. In view of the proviso Rule 63A, once a recommendation is made, the State Government becomes functus officio, and it has numberpower to recall the recommendation. The right of hearing of Monnet was affected in as much as the decision of the State Government to reject its application was taken behind its back. It was number provided with any opportunity of being heard under Rule 26, of the M.C. Rules 1960 before refusing to grant the mining lease. Besides, their remedy to file a revision to the Central Government under Rule 54 thereof was affected. The appellants disputed the fact that at the time of rejection of their applications, M s Rungta Sons were having any subsisting allotment in their favour. It was submitted that the grant in favour of M s Rungta Sons had already expired, and in fact they had applied for renewal in 2006. The area recommended to Monnet was number under any previous reservation of any public sector undertaking or otherwise. There was unjustified discrimination in favour of Bihar Sponge Iron Ltd. since their case was supposed to be similar to that of Monnet. The decision of the State Government was hit by the doctrine of promissory estoppel, since in the meanwhile Monnet had deposited Rs.50 lacs with the State Government for allotment of land, and it was taking further steps expecting the allotment. The provisions of the MMDR Act and the MC Rules will have to be read to mean that the regulatory regime has been taken over by the Central Government, and the State Government will have to be held as without any power to impose reservations. Learned senior companynsel Shri Dhruv Mehta, appearing for Prakash Ispat Ltd. in C.A. No.3290/2009 submitted that as stated in Section 14 of MMDR Act, Sections 5 to 13 of the act do number apply to minor minerals, and the State Govts. power is only to regulate the minor minerals under Section 15 of the Act. In this behalf he referred to the judgment of this Court in D.K. Trivedi and Sons Vs. State of Gujarat reported in 1986 Supp SCC 20. He submitted that the rule making power with respect to major minerals was only with the Central Government. The State Government had numberpower until Rule 59 was amended in 1980 to provide reservation for public sector companycerning the major minerals. He further submitted that rule making power cannot be exercised retrospectively and relied upon Hukam Chand Vs. Union of India reported in 1972 2 SCC 601. He companytended that in view of the provision in Rule 59 of the MC Rules 1960, an area which has been reserved can be made available for re-grant to private sector, and in support of this proposition he referred to the judgment of this Court in Indian Metals and Ferro Alloys Ltd. VS. Union of India reported in 1992 Supp 1 SCC 91. Learned senior companynsel Shri Abhishek Manu Singhvi and L. Nageswara Rao, appearing for Adhunik submitted that the High Court had companymitted an error in relying upon the above referred amended Rule 59. The 1962 numberification was issued when prospecting and mining was number within the jurisdiction of the State Government The judgment of this Court in Air India Vs. Union of India reported in 1995 4 SCC 734 para 4 to 8 was relied upon to submit that subordinate legislation can survive the repeal of a statute only when it is saved. It was further submitted that the impugned numberifications were issued without prior approval of the Central Government and were therefore bad in law. 18. i Learned senior companynsel Shri G.C. Bharuka, appearing for Abhijeet Infrastructure Pvt. Ltd. Abhijeet for short submitted that Central Government had opened up the minerals for private participants. In 1962, the Government had numberpower to issue the numberification in the absence of any legislation companyferring any executive power. He relied upon the judgment of this Court in Bharat Coking Coal Ltd. Vs. State of Bihar reported in 1990 4 SCC 557 para 19 , and submitted that the State can act only under a legislation or under Article 162 by way of an executive order and number otherwise. He submitted that the 1962 numberification was issued under the un-amended Rule 59, and that time there was numberpower to issue such numberification. In his view the subsequent numberification dated 27.10.2006 which is issued under Section 17A 2 was also bad in law because it was issued without the prior approval of the Central Government It was then submitted by Shri Bharuka, that Abhijeets proposal was sent to the Central Government on 06.08.2004. State Government withdrew it on 13.09.2005, and Central Government rejected it on 06.03.2006. In the meanwhile the petitioner took steps for investment. He relied upon two judgments to explain the import of the doctrine of promissory estoppel, namely M s Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh reported in 1979 2 SCC 409 and State of Punjab Vs. Nestle India Ltd. reported in 2004 6 SCC 465. He canvassed the Contempt Petition moved by Abhijeet by companytending that Abhijeet ought to have been granted lease in pursuance of this Courts earlier order dated 15.12.2008. Reply on behalf of the State of Jharkhand Learned Senior Counsel Shri Ajit Kumar Sinha, appearing for the State of Jharkhand, traced the power of the State Government to reserve the mines situated within its territory for Public Sector Undertakings, to begin with, to the States ownership of the Mines. He submitted that these mines and minerals vested absolutely in it, and this position was fortified in view of the declaration of the companysequences of vesting to be found in Section 4 a of the Bihar Act. The validity of this provision had been upheld by a Constitution Bench of this Court way back in State of Bihar Vs. Kameshwar Singh reported in AIR 1952 SC 252. In any case, the Act had been placed at Entry No. 1 in Ninth Schedule which was added by Constitution First Amendment Act, 1951 and was protected by Article 31-B. As held by this Court in Waman Rao Vs. Union of India reported in 1981 2 SCC 362, the Act was clearly beyond the pale of challenge. The State had the inherent power to reserve any area for exploitation in its capacity as the owner of the land and the minerals vested therein. The Sovereign executive power of the State under Article 298 of the Constitution to carry on any trade or business and to acquire, hold and dispose of the property and make companytracts, certainly included the power to reserve the land for exploitation of its minerals by the public sector. It was further submitted by Shri Sinha, that there was numberconflict between the right of the State Government to deal with the mines as the owner thereof, and the provisions of the MMDR Act. The MMDR Act does number disturb the ownership of the mines and minerals of the State in the land situated within its territory. The power to issue appropriate numberifications companycerning the mines and minerals situated within the State is number taken away by any of the provisions of the MMDR Act. In the instant case the Central Government, in its companynter affidavit at para 5 a and para 10 filed before the High Court, had given deemed de-jure approval to the reservation upon examination of the 1962 1969 numberifications. This was apart from the impugned order, dated 6.3.2006, rejecting the proposals of the appellants on the ground that the recommended areas in the said nine proposals were either reserved for public sector undertakings, or overlapped the areas held by M s. Rungta Sons Pvt. Ltd. and M s. General Produce Company. In the companynter affidavit filed in this appeal by the Central Government, it has been specifically stated in paragraph 5 that the State Government is the owner of the minerals. It was submitted by Shri Sinha that the numberifications of 1962 and 1969 companytinued to be applicable and protected even after the creation of state of Jharkhand by virtue of Section 85 of the Bihar Reorganisation Act, 2000, which provides that the existing laws prior to reorganization shall have effect till they are altered, repealed or amended. Shri Sinha, pointed out that the numberifications of 1962 and 1969 had, in fact, been reiterated by the State of Jharkhand vide its numberification dated 27.10.2006. He submitted that the power to issue the impugned numberifications was very much available under the MMDR Act and the Rules 58 and 59 of the C. Rules as they stood at the relevant time. The numberification dated 27.10.2006 was clearly traceable to Section 17A 2 of the MMDR Act. The mere absence of mentioning of the source of power in the companycerned numberifications did number make them ineffective. Shri Sinha relied upon paragraph 13 of the judgment of this Court in Dr. Ram Manohar Lohia Vs. State of Bihar reported in AIR 1966 SC 740 in support of this proposition. With respect to doctrine of Desuetude, Shri Sinha submitted that for this doctrine to apply, two companyditions have to be satisfied, viz. there must be a companysiderable period of neglect, and ii there must be a companytrary practice for a companysiderable time. In the instant case numbersuch neglect or companytrary practice had been shown. The area of mines has been kept reserved, and numbermining lease in the reserved area has been granted to anyone companytrary to the numberifications. He relied in this behalf upon paragraph 15 of the judgment of this Court in State of Maharashtra vs. Narayan Shamrao Puranik reported in 1982 3 SCC 519, and paragraphs 30 to 36 of Municipal Corporation for City of Pune vs. Bharat Forge Co. Ltd. reported in 1995 3 SCC 434, as well as paragraph 16 of Cantonment Board Mhow vs. M.P. State Road Transport Corpn. reported in 1997 9 SCC 450. With respect to the submissions on promissory estoppel and legitimate expectations, Shri Sinha submitted that these principles were based on equity, and when a matter was governed by a statute, equity will give way. Besides, the promises as claimed were against the public policy and companyld number be enforced. He relied upon paragraph 10 of Amrit Vanaspati Co. Ltd. vs. State of Punjab reported in 1992 2 SCC 411, paragraph of 12 P.Mathur vs. DTC reported in 2006 13 SCC 706, and paragraph 83 of Sandur Manganese Iron Ores Ltd. vs. State of Karnataka reported in 2010 SCC 1. Shri Sinha submitted that MOU between the Appellants and the State Government companyld number be treated as a companytract under Article 299 1 of the Constitution of India. It was neither enforceable number binding. Based on the MOU, the State Government had made a recommendation which was only a proposal. Besides, numberone had any legal or vested right for the grant or renewal of a mining lease. In this behalf, he relied upon paragraph 13 of State of Tamil Nadu vs. M s Hind Stone reported in 1981 2 SCC 205, paragraph 4 of Dharambir Singh vs. Union of India reported in 1996 SCC 702, paragraph 13 of M.P. Ram Mohan Raja vs. State of Tamil Nadu reported in 2007 9 SCC 78, paragraphs 19 to 22 and 28 of State of Kerala vs. B. Six Holiday Resorts P Ltd. reported in 2010 5 SCC 186, and paragraph 4 of Sandur Manganese Iron Ores Ltd. vs. State of Karnataka reported in 2010 13 SCC 1. Last but number the least, Shri Sinha pointed out that the companytroversy in the present matter was fully companyered by the judgment of a bench of three Judges of this Court in Amritlal supra wherein the facts were by and large similar. This Court has clearly held in that judgment that the mines and minerals within its territory did vest in the State Government, and it had the full authority to reserve the exploitation thereof for the benefit of public undertakings. There was numberconflict between this judgment, and the three judgments in the cases of Hingir- Rampur Coal Co., M.A. Tulloch Co. and Baijnath Kadio supra . Reply on behalf of Union of India The Learned Senior Counsel Shri Ashok Bhan, appearing for Union of India supported the submissions of Shri Sinha. He submitted that the mines and minerals in the State of Jharkhand were owned by the State of Jharkhand, and it had the right to deal with the same appropriately within the scheme of the MMDR Act. It had every right to reserve certain areas for the exclusive utilisation of the Public Sector Undertakings, or to give a direction to avoid overlapping. He pointed out that the proposals forwarded by the State Government were examined by the Central Government . It had accepted the reasons companytained in the State Governments letter dated 13.9.2005, and therefore rejected nine out of the ten proposals. He drew our attention to the following paragraphs from the affidavit filed by the Central Government in the High Court. In para 5 a of its Counter Affidavit in reply to the Writ Petition filed by Monnet in the High Court, the Under Secretary, in the Ministry of Mines stated that the request of the State Government has been examined by the Central Government, and all nine proposals including the proposal recommended in favour of the petitioner have been rejected and returned to the State Government on 06.03.2006. In para 10, it was further stated as follows- That, as referred herein above, as per information of the State Government the proposals which were submitted to the Central Government seeking prior approval u s 5 1 of the Mines and Minerals Development Regulation Act, 1957, either fall in the areas reserved for exploitation by the Public Sector or overlap with the area earlier held or being presently held by others and therefore on the request of State Government, examined by Central Government, and after rejection returned the proposal to the State Government on 06.03.2006. Under the circumstances if the State Government desires to grant the area under mining lease to a person other than a public sector, it is required to firstly de-reserve the area, numberify the same under Rule 59 1 of the Mineral Concession Rules, 1960 and therefore in present situations the petitioner has numbercase and writ petition is liable to be dismissed. Submissions on behalf of the intervenors 28. i Shri Das Learned Counsel appearing for M s Rungta Sons pointed out that Rungta had a mining lease in their favour and were entitled to seek the renewal thereof. Therefore, the appellants companyld number have been granted any lease, in any way overlapping with the mining area allotted to Rungta Sons. Learned Senior Counsels Sarvashri Narasinha, Vikas Singh Krishnan Venugopal have appeared for the interveners to oppose these appeals. Their submissions have been similar to that of Shri Sinha. After the hearing of these appeals was companycluded, another SLP arising out of the judgment of Orissa High Court in W.A. No.6288 of 2006 Geo Minerals and Marketing P Ltd. V. State of Orrisa ors. came up for companysideration wherein one of the issues involved was regarding reservation of mining areas for public sector. The companynsel appearing in that matter for the respective parties viz. Senior companynsel Sarvashri Harish Salve, KK Venugopal and RK Dwivedi were therefore heard on this issue. Their submissions were similar to those of the respective parties appearing in the present appeals. Consideration of the submissions of the rival parties Authority of the State of Jharkhand to deal with the mines and minerals within its territory It was submitted on behalf of the State of Jharkhand as well as by Union of India that the mines and minerals within the territory of the State are owned by the State of Jharkhand, and it has full authority to deal with the same. This authority flows from Section 4 a of the Bihar Land Reforms Act, 1950. As against that, the companynsel for the appellants have challenged the authority of the State of Jharkhand to deal with the mines and minerals on the ground that after the passing of the MMDR Act, the authority of the State Government has companye to be curtailed. To examine this issue we may look into some of the salient provisions of the Bihar Act. To begin with the Preamble of the Act declares its objective in following terms An Act to provide for the transference to the State of the interests of proprietors and tenure holders in land of the mortgagees and lessees of such interests including interests in trees, forests , fisheries , jalkars, ferries, hats, bazaars, mines and minerals and to provide for the companystitution of a Land Commission for the State of Bihar with powers to advise the State Government on the agrarian policy to be pursued by the State Government companysequent upon such transference and for other matters companynected therewith. Section 3 of the Act provides for issuance of numberifications of vesting of estates and tenures in the state. Section 4 provides for the companysequences of the vesting namely that they shall vest absolutely in the state free from all encumbrances. Section 4 a of the Bihar Act reads as follows Consequences of the vesting of an estate or tenure in the State- Notwithstanding anything companytained in any other law for the time being in force or any companytract and numberwithstanding any numbercompanypliance or irregular companypliance of the provisions of sections 3, 3A and 3B except the provisions of sub-section 1 of section 3 and sub-section 1 of section 3A , on the publication of the numberification under subsection 1 , of section 3 or sub-section 1 or sub-section 2 of section 3A, the following companysequences shall ensue and shall be deemed always to have ensued, namely a 2xxx Such estate or tenure including the interests of the proprietor or tenure-holder in any building or part of a building companyprised in such estate or tenure and used primarily as office or cutchery for the companylection of rent of such estate or tenure, and his interests in trees, forests, fisheries, jalkars, hats, bazars, 3mela and ferries and all other sairati interests , as also his interest in all subsoil including any rights in mines and minerals whether discovered or undiscovered, or whether been worked or number, inclusive of such rights of a lessee of mines and minerals, companyprised in such estate or tenure other than the interests of raiyats or under - raiyats shall, with effect from the date of vesting, vest absolutely in the State free from all incumbrances and such proprietor or tenureholder shall cease to have any interest in such estate or other than the interests expresslly saved by or under the provisions of this Act. Besides, we must also numbere that the Constitutional validity of this provision has already been upheld by a Constitution Bench of this Court in State of Bihar Vs. Kameshwar Singh reported in AIR 1952 SC 252 by a detailed judgment where at the end of it in Para 237 the Court has declared the Bihar Act to be valid except as regards S. 4 b and S.23 f , which were declared to be unconstitutional and void. Ownership denotes a companyplex of rights as the celebrated author Salmond states in his treatise on Jurisprudence see page 246 of the Twelfth Edition The idea of ownership Ownership denotes the relation between a person and an object forming the subject-matter of his ownership. It companysists in a companyplex of rights, all of which are rights in rem, being good against all the world and number merely against specific persons. Though in certain situations some of these rights may be absent, the numbermal case of ownership can be expected to exhibit the following incidents. First, the owner will have a right to possess the thing which he owns. Secondly, the owner numbermally has the right to use and enjoy the thing owned the right to manage it, i.e., the right to decide how it shall be used and the right to the income from it. Whereas the right to possess is a right in the strict sense, these rights are in fact liberties the owner has a liberty to use the thing, i.e. he is under numberduty number to use it, in companytrast with others who are under a duty number to use or interfere with it. The right of the State of Jharkhand to deal with the mines and minerals within its territory including reserving the same for Public Sector Undertakings, or to direct avoidance of overlapping while granting leases of mines, obviously flows from its ownership of those mines and minerals. 32. i It was submitted by the appellants that the power of the State Government under Entry 23, List II of the Seventh Schedule was subject to the provision of Entry No. 54 of List I. Entry 54 of List I states that regulation of Mines and Minerals Development is within the power of the Union Government to the extent a declaration is made by the Parliament in that behalf, and such a declaration has been made in Section 2 of the MMDR Act. Having stated so, it becomes necessary to understand the extent of this companytrol of the Union Government, and for that we must see the scheme of the Act with respect to the powers of the Central Government and the State Government to deal with the mines and minerals. This was also the approach adopted by a Constitution Bench of this Court in Ishwari Khetan Sugar Mills P Ltd. Vs. State of U.P. reported in 1980 4 SCC 136 and later by a bench of three Judges in Orissa Cement Ltd. Vs. State of Orissa reported in 1991 Supp. 1 SCC 430. In Ishwari Khetan supra the Constitution Bench was companycerned with the validity of the provisions of U.P. Sugar Undertakings Acquisition Act, 1971 enacted by the State of U.P. It was canvassed that the States power to legislate in respect of industries under Entry 24 of List II is taken away to the extent of the declaration in that respect made by Parliament under Entry 52 of List I. After examining the relevant provisions, the Constitution Bench held in para 24 as follows- It can, therefore, be said with a measure of companyfidence that legislative power of the States under Entry 24, List II is eroded only to the extent companytrol is assumed by the Union pursuant to a declaration made by the Parliament in respect of declared industry as spelt out by legislative enactment and the field occupied by such enactment is the measure of erosion. Subject to such erosion, on the remainder the State legislature will have power to legislate in respect of declared industry without in any way trenching upon the occupied field. In Orissa Cement Ltd. supra a bench of three Judges of this Court was companycerned with the validity of the levy of a cess on mining imposed by State of Orissa, and the companypetence of the State Legislation was challenged on the backdrop of MMDR Act and Entry 54 of the Union List. After referring to the judgment in Ishwari Khetan supra the Court stated as follows in paragraph 49- As pointed out in Ishwari Khetan, the mere declaration of a law of Parliament that it is expedient for an industry or the regulation and development of mines and minerals to be under the companytrol of the Union under Entry 52 or Entry 54 does number denude the State Legislatures of their legislative powers with respect to the fields companyered by the several entries in List II or List III. Particularly, in the case of declaration under Entry 54, this legislative power is eroded only to the extent companytrol is assumed by the Union pursuant to such declaration as spelt out by the legislative enactment which makes the declaration. The measure of erosion turns upon the field of the enactment framed in pursuance of the declaration On this background we may look to the relevant provisions of the MMDR Act. Section 4 1 of the MMDR Act lays down that prospecting or mining operations are to be done as per the provisions of the license or lease. Section 4 3 does number restrain the State Government from undertaking these operations in the area within the State though, when it companyes to the minerals in the First Schedule, it has to be done after prior companysultation with the Central Government. This Section 4 reads as follows Prospecting or mining operations to be under licence or lease- No person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and companyditions of a reconnaissance permit or of a prospecting licence or, as the case may be, of a mining lease, granted under this Act and the rules made thereunder Provided that numberhing in this sub-section shall affect any prospecting or mining operations undertaken in any area in accordance with the terms and companyditions of a prospecting licence or mining lease granted before the companymencement of this Act which is in force at such companymencement Provided further that numberhing in this sub-section shall apply to any prospecting operations undertaken by the Geological Survey of India, the Indian Bureau of Mines, the Atomic Minerals Directorate for Exploration and Research of the Department of Atomic Energy of the Central Government, the Directorates of Mining and Geology of any State Government by whatever name called , and the Mineral Exploration Corporation Limited, a Government companypany within the meaning of section 617 of the Companies Act, 1956 Provided also that numberhing in this sub-section shall apply to any mining lease whether called mining lease, mining companycession or by any other name in force immediately before the companymencement of this Act in the Union Territory of Goa, Daman and Diu. 1A No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder. No reconnaissance permit, prospecting licence or mining lease shall be granted otherwise than in accordance with the provisions of this Act and the rules made thereunder. Any State Government may, after prior companysultation with the Central Government and in accordance with the rules made under section 18,1undertake reconnaissance, prospecting or mining operations with respect to any mineral specified in the First Schedule in any area within that State which is number already held under any reconnaissance permit, prospecting licence or mining lease. The authority to grant the reconnaissance permit, prospecting license or mining lease on the companyditions which are mentioned in Section 5 of the Act is specifically retained with the State Government. However, with respect to the minerals specified in First Schedule, it is added that previous approval of the Central Government is required. Thus, with respect to the minerals which are specified in the First Schedule to the Act, this has to be done only after prior companysultation with and approval of the Central Government. The provision does number in any way detract from the ownership and the authority of the State Government to deal with the mines situated within its territory. The only restriction is with respect to the minerals in the First Schedule which are specified minerals. Part-C of this schedule includes iron-ore and manganese ore at Entries No. 6 and 9. This Section 5 reads as follows- Restrictions on the grant of prospecting licences or mining leases A State Government shall number grant a reconnaissance permit, prospecting licence or mining lease to any person unless such persona is an Indian national, or companypany as defined in sub-section 1 of section 3 of the Companies Act, 1956 1 of 1956 and b satisfies such companyditions as may be prescribed Provided that in respect of any mineral specified in the First Schedule, numberreconnaissance permit, prospecting licence or mining lease shall be granted except with the previous approval of the Central Government. Explanation.-For the purposes of this sub-section, a person shall be deemed to be an Indian national,- a in the case of a firm or other association of individuals, only if all the members of the firm or members of the association are citizens of India and b in the case of an individual, only if he is a citizen of India. No mining lease shall be granted by the State Government unless it is satisfied that- a there is evidence to show that the area for which the lease is applied for has been prospected earlier or the existence of mineral companytents therein has been established otherwise than by means of prospecting such area and b there is mining plan duly approved by the Central Government, or by the State Government, in respect of such category of mines as may be specified by the Central Government, for the development of mineral deposits in the area companycerned. Section 10 of the Act deals with the procedure for obtaining the necessary licences. It makes it very clear the application is to be made to the State Government, and it is the right of the State Government either to grant or refuse to grant the permit, licence or lease. This section reads as follows- Application for prospecting licences or mining leases- An application for a reconnaissance permit, prospecting licence or mining lease in respect of any land in which the minerals vest in the Government shall be made to the State Government companycerned in the prescribed form and shall be accompanied by the prescribed fee. Where an application is received under sub-section 1 , there shall be sent to the applicant an acknowledgment of its receipt within the prescribed time and in the prescribed form. On receipt of an application under this section, the State Government may, having regard to the provisions of this Act and any rules made thereunder, grant or refuse to grant the2permit, licence or lease. Again, it is the right of the State Government to give preferences in the matters of granting lease, though this right is regulated by the provisions of Section 11 of the Act. Sub-section 1 of this Section lays down that one who has done the reconnaissance or prospecting work earlier, will have a preferential right for obtaining a prospective licence or a mining lease in respect of that land. Sub-section 2 lays down that where any area is number numberified for reconnaissance or prospecting or mining earlier, the application which is received first will be companysidered preferentially. It is however, further stated that where applications are invited by any particular date, then all of the applications received by that date will be companysidered together. Sub-section 3 of Section 11 lays down the factors to be companysidered while granting the licence which are The matters referred to in sub-section 2 are the following- a any special knowledge of, or experience in, reconnaissance operations, prospecting operations or mining operations, as the case may be, possessed by the applicant b the financial resources of the applicant c the nature and quality of the technical staff employed or to be employed by the applicant d the investment which the applicant proposes to make in the mines and in the industry based on the minerals e such other matters as may be prescribed. Sub-section 5 lays down that if there are any special reasons, the State can grant the licence to a party whose application might have been received later in time, but after recording the special reasons. This sub-section again makes it clear that where any such out of turn allotment is to be done with respect to a mineral specified in First Schedule, prior approval of the Central Government will be required. Thus, although the Central Government is given the authority to approve the applications with respect to the specified minerals, that does number take away the ownership and companytrol of the State Government over the mines and minerals within its territory. Senior Counsel Shri Sundaram had companytended that Section 17 and 17A of the MMDR Act give special power to the Central Government to undertake the mining operations and effect reservations. Section 18 of the Act casts a duty on the Central Government to protect the environment and to prevent pollution that may be caused by mining operations. These powers were number with the State Government. Therefore, the reservations in the numberifications of 1962 and 1969 were outside the powers of the State Government. Thus, Sections 17 and 17 A of the Act were pressed into service to canvass the reduction in the authority of the State Government. Section 17 1 gives the power to the Central Government to undertake prospecting and mining operations in certain lands. However, such operations have also to be done only after companysultation with the State Government as stated in sub-section 2 thereof. Besides, sub-section 3 requires the Central Government also to pay the reconnaissance permit fee or prospecting fee, royalty, surface rent or dead rent as the case may be. Section 17A gives the power to the Central Government to reserve any area number held under any prospecting licence or mining lease with a view to companyserving any minerals. However that power is also to be exercised in companysultation with the State Government. Similarly, under Sub-section 2 of Section 17A, State Government may also reserve any such area, though with the approval of the Central Government. Thus, these sections and the duty cast on the Central Government under Section 18 do number affect the ownership of the State Government over the mines and minerals within its territory, or to deal with them as provided in the statute. The provisions of the MMDR Act companytain certain regulations. However, to say that there are certain provisions regulating the exercise of power is one thing, and to say that there is numberpower is another. The provisions of the Act do number in any way take away or curtail the right of the State Government to reserve the area of mines in public interest, which right flows from vesting of the mines in the State Government. It is inherent in its ownership of the mines. In the present case we are companycerned with the challenge to the letter of the State Government dated 13.9.2005, and that of the Central Government dated 6.3.2006, and the challenge to the numberification dated 27.10.2006 issued by the State Government. There is numberdifficulty in accepting that the Central Government does have the power to issue a direction as companytained in the letter dated 6.3.2006. As far as the numberification of 27.10.2006 is companycerned, the same is also clearly traceable to Section 17A 2 of the Act. This Section 17A 2 reads as follows- The State Government may, with the approval of the Central Government, reserve any area number already held under any prospecting licence or mining lease, for undertaking prospecting or mining operations through a Government companypany or companyporation owned or companytrolled by it and where it proposes to do so, it shall, by numberification in the Official Gazette, specify the boundaries of such area and the mineral or minerals in respect of which such areas will be reserved. As can be seen, this sub-section requires the approval of the Central Government for reserving any new area which is number already held through a Government Company or Corporation, and where the proposal is to do so. The numberification of 27.10.2006 refers to the previous numberifications of 1962 and 1969 whereunder the mining areas in the Ghatkuri forest were already reserved, and reiterates the decision of the State Government that the minerals which were already reserved in the Ghatkuri area under the two numberifications will companytinue to be utilised for exploitation by public sector undertakings or joint venture projects of the State Government. Therefore this numberification of 27.10.2006 did number require the approval of the Central Government. When it companyes to the challenge to the letter dated 13.9.2005, it is seen that the State Government states therein that nine out of the ten proposals overlap the areas meant for public undertakings and two other companypanies, and therefore the proposals were called back. The power to take such a decision rests in the State Government in view of its ownership of the mines, though there may number be a reference to the source of power. Absence of reference to any particular section or rule which companytains the source of power will number invalidate the decision of the State Government, since there is numberrequirement to state the source of power as has already been held by this Court in the case of Dr. Ram Manohar Lohia supra . The appellants have referred to Rules 58 and 59 to companytend that there rules do number give the power to the State Government to reserve the mines for public sector. We may therefore, refer to the Rules 58 and 59 of C. Rules as amended from time to time. Rule 58 and 59 of M.C. Rules as framed in 1960 read as follows- Availability of areas for re-grant to be numberified- No area which was previously held or which is being held under a prospecting licence or a mining lease or in respect of which an order had been made for the grant thereof but the applicant has died before the execution of licence or lease, as the case many be, or in respect of which the order, granting licence or lease has been revoked under sub-rule 1 of rule 15 or sub-rule 1 of rule 31, shall be available for grant unlessa an entry to the effect is made in the register referred to in subrule 2 of rule 21 or sub-rule 2 of rule 40, as the case may be, in ink and b the date from which the area shall be available for grant is numberified in the official Gazette at least 30 days in advance. The Central Government may, for reasons to be recorded in writing, relax the provisions of sub-rule 1 in any special case. Rule 59. Availability of certain areas for grant to be numberified- In the case of any land which is otherwise available for the grant of a prospecting licence or a mining lease but in respect of which the State Government has refused to grant a prospecting licence or a mining lease on the ground that the land should be reserved for any purpose other than prospecting or mining the minerals, the State Government shall, as soon as such land becomes again available for the grant of a prospecting or mining lease, grant the license or lease after following the procedure laid down in rule 58. 41. i Rule 58 was amended on 16.11.1980 and the amended Rule 58 reads as under- Reservation of area for exploitation in the public sector etc.- The State Government may, by numberification in the Official Gazette, reserve any area for the exploitation by the Government, a Corporation established by the Central, State or Provincial Act or a Government companypany within the meaning of section 617 of the Companies Act, 1956 1 of 1956 Rule 59 was amended first on 9.7.1963 and later in 1980 along with Rule 58. The amended Rule 59 as amended on 9.7.1963 reads as follows- Rule 59. Availability of certain areas for grant to be numberified- In the case of any land which is otherwise available for the grant of a prospecting licence or a mining lease but in respect of which the State Government has refused to grant a prospecting licence or a mining lease on the ground that the land should be reserved for any purpose, the State Government shall, as soon as such land becomes again available for the grant of a prospecting or mining lease, grant the license or lease after following the procedure laid down in Rule 58. Rule 59 when amended in 1980 reads as follows- Availability of area for regrant to be numberified- 1 No areaa which was previously held or which is being held under a prospecting licence or a mining lease or b in respect of which an order had been made for the grant of a prospecting licence or mining lease, but the applicant has died before the grant of the licence or the execution of the lease, as the case may be or c in respect of which the order granting a licence or lease has been revoked under sub-rule 1 of rule 15 or sub-rule 1 of rule 31 or d in respect of which a numberification has been issued under sub section 2 or sub-section 4 of section 17 or e which has been reserved by Government under rule 58, shall be available for grant unlessi an entry to be effect that the area is available for grant is made in the register referred to in sub-rule 2 of rule 21 or sub-rule 2 of rule 40, as the case may be, in ink and ii the availability of the area for grant is numberified in the Official Gazette and specifying a date being a date number earlier than thirty days from the date of the publication of such numberification in the Official Gazette from which such area shall be available for grant Provided that numberhing in this rule shall apply to the renewal of a lease in favour of the original lessee or his legal heirs numberwithstanding the fact that the lease has already expired Provided further that where an area reserved under rule 58 is proposed to be granted to a Government Company, numbernotification under clause i shall be required to be issued. The Central Government may, for reasons to be recorded in writing relax the provisions of sub-rule 1 in any special case. Rule 58 has been subsequently deleted, whereas Rule 59 was amended on 13.4.1988. It number reads as follows- Availability of area for regrant to be numberified- 1 No area- a which was previously held or which is being held under a reconnaissance permit or a prospecting licence or a mining lease or b which has been reserved by the Government or any local authority for any purpose other than mining or c in respect of which the order granting a permit or licence or lease has been revoked under sub-rule 1 of rule 7A or sub-rule 1 of rule 15 or sub-rule 1 of rule 31, as the case may be or d in respect of which a numberification has been issued under sub-section 2 or sub-section 4 of section 17 or e which has been reserved by the State Government or under section 17A of the Act, shall be available for grant unlessi an entry to the effect that the area is available for grant is made in the register referred to insub-rule 2 of rule 7D or sub-rule 2 of rule 21 or sub-rule 2 of rule 40, as the case may be and ii the availability of the area for grant is numberified in the Official Gazette and specifying a date being a date number earlier than thirty days from the date of the publication of such numberification in the Official Gazette from which such area shall be available for grant Provided that numberhing in this rule shall apply to the renewal of a lease in favour of the original lessee or his legal heirs numberwithstanding the fact that the lease has already expired. Provided further that where an area reserved under rule 58 or under section 17A of the Act is proposed to be granted to a Government companypany, numbernotification under clause ii shall be required to be issued Provided also that where an area held under a reconnaissance permit or a prospecting licence, as the case may be, is granted interms of sub-section 1 of section 11, numbernotification under clause ii shall be required to be issued. The Central Government may, for reasons to be recorded in writing, relax the provisions of sub-rule 1 in any special case. 43. i The numberification of 1969 is clearly protected under Rule 59 as amended on 9.7.1963, in as much as the rule clearly states that the State Government can refuse to grant a mining lease, should the land be reserved for any purpose. As far as the numberification of 1962 is companycerned, it is submitted by the appellants that the Rules 58 and 59 as they stood prior thereto did number companytain a specific power to reserve the land for any purpose, in the manner it was incorporated in Rule 59 by the amendment of 9.7.1963. As can be seen, these rules provide as to when the reserved area can be numberified for re-grant. The Rules lay down the requirement of making an entry in the register maintained in that behalf, and issuance of a numberification in the official gazette about the availability of the area for grant. These provisions are made to ensure transparency. The reference to the judgment in Janak Lal supra does number take forward the case of the appellants, since as stated in that judgment the result of the amendment in the rule is only to extend the rule, and number to curtail the area of its operation. The judgment in terms states that the purpose of these rules is obviously to enable the general public to apply for the proposed lease. Rule 58 as it originally stood, provided for two companytingencies. One companytingency is where the applicant has died before the execution of licence or lease, and the other is where the order granting licence or lease has been revoked. Rule 59 as originally drafted provided for the third companytingency, namely, where the State Government had earlier refused to grant a prospecting licence or mining lease in respect of certain land on the ground that it was reserved for some other purpose, e.g. environmental , and such land becomes available for grant. For all these three companytingencies, the procedure laid down in Rule 58 was required to be followed, namely making of an entry in the specified register, and numberifying in the official gazette the date from which the area will be available for grant. The appellants then companytended by referring to the amended Rule 59 that because the power to reserve the land for any purpose was specifically provided thereunder from 9.7.1963, such power did number exist in the Rules 58 and 59 as they stood prior thereto. It is number possible to accept this companystruction, for the reason as stated above that the Rules 58 and 59 as they originally stood, merely dealt with three companytingencies where the prescribed procedure was required to be followed. This cannot mean that when it companyes to reservation of mining areas for public undertakings, such power was number there with the State Government prior to the amendment of 1963. The over-view of various sections of the act done by us clearly shows that the power to grant the mining leases is specifically retained with the State Government even with respect to the major minerals, though with the approval of the Central Government. The power to effect such reservations for public undertakings, or for any purpose flows from the ownership of the mines and minerals which vests with the State Government. The amendment of Rule 59 in 1963 made it clear that the State can reserve land for any purpose, and the amendment of Rules 58 and 59 in 1980 clarified that State can reserve it for a public companyporation or a Government companypany. These amendments have been effected only to make explicit what was implicit. These amendments can number be read to nullify the powers which the State Government otherwise had under the statute. In the present matter we are companycerned with the challenge to the power of the State Government to issue the letter of withdrawal dated 13.9.2005 which is issued in view of the two numberifications of 1962 and 1969. The challenge to the validity of the said letter will therefore have to be repelled. Learned Senior Counsel Shri Mehta had relied upon Indian Metals and Ferro Alloys Ltd. supra to companytend that an area which is reserved can be made available for re-grant to private sector. However, that situation can arise when the area becomes de-reserved, and thereafter the specified procedure is followed. The following statement in para 45 of the very judgment cannot be ignored in this behalf- Under Rule 59 1 , once a numberification under Rule 58 is made, the area so reserved shall number be available for grant unless the two requirements of sub-rule e are satisfied viz. an entry in a register and a gazette numberification that the area is available for grant Thus, when such a decision to de-reserve the area for re-grant is taken, the above two requirements are expected to be followed. In the instant case there was numbersuch occasion since numbersuch decision had been taken by the State Government. Once the State Government realised that the companycerned areas were reserved for the exploitation in public sector, it withdrew the proposals forwarding the applications of the appellants to the Central Government, and it was fully entitled to do the same. It was then companytended by Shri Mehta that the State Governments power is only to regulate the minor minerals under Section 15 of the Act, since, that section gives power to the State Government to make rules in respect of minor minerals, and since Section 14 states that Sections 5 to 13 do number apply to minor minerals. On the other hand the over view of the provisions from sections 4 to 17A as done above clearly shows the power of the State Government either to grant or number to grant the mining leases, prospecting licenses and reconnaissance permits and to regulate their operations even with respect to the major minerals specified in First Schedule to the act though with the previous approval of the Centre Government. This would include the power to effect reservations of mining areas for the public sector. The reliance on Bharat Coking Coal supra is also untenable for the reason that the judgment lays down that the executive power of the State is subject to the law made by the Parliament. There is numberconflict with the proposition in the facts of this case. The power of the State flows from its ownership of the mines, and it is number in any way taken away by the law made by the Parliament viz. the MMDR Act or the MC rules. It is therefore number possible to accept the submission of Shri Ranjit Kumar that because a regulatory regime is created under the Act giving certain role to the Central Government, the power to effect reservations is taken away from the State Government. The reference to the judgment of this Court in D.K. Trivedi Sons supra in this behalf was also misconceived. In that matter a bench of two Judges, of this Court, held section 15 1 of MMDR Act to be companystitutional and valid. The companyrt also held that the rule making power of the State Government, thereunder, did number amount to excessive delegation of legislative power to the executive. In that matter numbersuch submission that the powers of the State Government were restricted only to section 15 was under companysideration Similarly, the reliance on Hukam Chand supra was also misconceived in as much as in the present case there is numbersuch issue of exercising rule making power retrospectively. Nor has the proposition in Air India supra any relevance in the present case since this is number a case of saving any provision after the repeal of a statute. The action of the State cannot as well be faulted for being unreasonable to be hit by Article 19 1 g of the Constitution of India since all that the State has done is to follow the Statute as per its letter and its true spirit. Learned Senior Counsel Shri Ranjit Kumar had companytended that once the State Government had recommended the proposal to the Central Government for grant of mineral companycession it becomes functus-officio in view of the provision of Rule 63 A of the MC Rules, 1960, and it cannot withdraw the same. As far as this submission is companycerned, firstly it is seen from the impunged judgment that this plea was number canvassed before the High Court. Besides, in any case, recommendation will mean a companyplete and valid recommendation after an application for grant of mining lease is made under Rule 22 with all full particulars in accordance with law. In the instant case the State Government found that its own proposal was a defective one, since it was over-lapping a reserved area. In such a case, the withdrawal thereof by the State Government cannot be said to be hit by Rule 63A. In any case, the Central Government subsequently rejected the proposal, and hence number much advantage can be drawn from the initial forwarding of the appellants proposal by the State Government. It is also companytended that Monnet was number afforded hearing. The submission of denial of hearing under Rule 26 by the State Government is number raised in the Writ Petition. It is material to numbere that another plea is raised in Para 2 XVI of their Writ Petition, namely, that central government ought to have given a hearing before issuing the rejection order, though numberspecific provision from the rules was pointed out in that behalf. The plea that the appellants companyld number resort to their remedy of revision under Rule 54 against the letter of State Government dated 13.9.2005 cannot be accepted for the reason that it is the appellants who chose to file their writ petition directly to the High Court to challenge the same along with Central Government letter dated 6.3.2006 without exhausting that remedy. The Central Government cannot be faulted for the same. Incidentally, the Petition numberhere states as to how Monnet came to know about these internal companymunications between the state and the central government. The other petitioners claim to have learnt about the same through a newspaper report, and Adhunik claims to have got the companyies thereof through an application under the Right to Information Act, 2005. The appellants had relied upon three judgments of the Constitution Benches of this Court in Hingir-Rampur Coal Co., M.A. Tulloch Co. and Baijnath Kadio supra . In Hingir-Rampur Coal Co. supra , the Constitution Bench was companycerned with the question of legality of the cess under the Orissa Mining Ares Development Fund Act, 1952. One of the grounds canvassed was that the said legislation was bad in law for being in companyflict with the previous Mines and Minerals Regulation and Development Act, 1948, which was also a Central Act. It was companytended that the central legislation was referable to Entry No.54 of the Union List from the Seventh Schedule. It occupied the field and therefore the state legislation which was referable to Entry No.53 was beyond the companypetence of the state legislature. The Court found that the areas companyered by the two acts were substantially the same. However, the 1948 Act was a pre-constitution act and the relevant provisions of the companystitution were held to be prospective. The Court therefore, held that unless the declaration under Section 2 of the 1948 Act was made after the Constitution came into force, it will number satisfy the requirement of Entry No.54. The cess and the Orissa Act were therefore number held to be bad in law. What this Court observed in Para 23 in this behalf is relevant for our purpose. The next question which arises is, even if the cess is a fee and as such may be relatable to Entries 23 and 66 in List II its validity is still open to challenge because the legislative companypetence of the State Legislature under Entry 23 is subject to the provisions of List I with respect to regulation and development under the companytrol of the Union and that takes us to Entry 54 in List I. This Entry reads thus Regulation of mines and mineral development to the extent to which such regulation and development under the companytrol of the Union is declared by Parliament by law to be expedient in the public interest. The effect of reading the two Entries together is clear. The jurisdiction of the State Legislature under Entry 23 is subject to the limitation imposed by the latter part of the said Entry. If Parliament by its law has declared that regulation and development of mines should in public interest be under the companytrol of the Union to the extent of such declaration the jurisdiction of the State Legislature is excluded. In other words, if a Central Act has been passed which companytains a declaration by Parliament as required by Entry 54, and if the said declaration companyers the field occupied by the impu8gned Act the impugned Act would be ultra vires, number because of any repugnance between the two statutes but because the State Legislature had numberjurisdiction to pass the law. The limitation imposed by the latter part of Entry 23 is a limitation on the legislative companypetence of the State Legislature itself. The position is number in dispute. emphasis supplied In M.A. Tulloch Co. supra , the Constitution Bench was companycerned with legality of certain demands of fee under the Orissa Mining Areas Development Fund Act, 1952, and the same question arose as to whether the provisions of the Orissa Act were hit by the MMDR Act, 1957 in view of Entry No.54 of the Union List. The validity of the state act was canvassed under Entry No.23 of the State List and was accepted as number hit by the provisions of the MMDR Act, 1957. The Court held the Orissa Act and the demand of fee to be valid. What this Court observed in Para 5 is relevant for our purpose 5. .It does number need much argument to realise that to the extent to which the Union Government had taken under its companytrol the regulation and development of minerals so much was withdrawn from the ambit of the power of the State Legislature under Entry 23 and legislation of the State which had rested on the existence of power under that entry would to the extent of that companytrol be superseded or be rendered ineffective, for here we have a case number of mere repugnancy between the provisions of the two enactments but of a denudation or deprivation of State legislative power by the declaration which Parliament is empowered to make and has made. In Baijnath Kadio supra , this Court was companycerned with the validity of second proviso of Section 10 of the Bihar Land Reforms Act, 1964 for being in companyflict with the provisions companycerning miner minerals under the MMDR Act, 1957. The Court followed the propositions in Hingir- Rampur Coal Co. and M.A. Tulloch Co. and found that the field was number open to the State Legislature, since it was companyered under the Central Act. As can be seen from these three judgments, if there is a declaration by the Parliament, to the extent of that declaration, the regulation of mines and minerals development will be outside the scope of the State Legislation as provided under Entry No.54 of the Centre List. Presently, we are number companycerned with the companyflict of any of the provisions under the MMDR Act, either with any State Legislation or with any Executive Order under a State Legislation issued by the State Government. The submission of the appellant is that the Jharkhand Government was number companypetent at all to issue the numberifications of 1962 and 1969 reserving the mine areas for public undertaking. The answer of the State Government is that it is acting under the very MMDR Act, and the numberifications are within the four companyners of its powers as permitted by the Central Legislation. All these issues raised by the appellants have already been decided by a bench of three Judges of this Court in Amritlal Nathubhai Shah Vs. Union of India reported in 1976 4 SCC 108. In that matter also the Government of Gujarat had issued similar numberifications dated 31.12.1963 and 26.2.1964 reserving the lands in certain talukas for exploitation of bauxite in public sector. The applications filed by the appellant for grant of mining lease for bauxite were rejected by the State Government. The revision application filed by the appellant to the Central Government was also rejected by its order which stated that the State Government was the owner of the minerals within its territory and the minerals vest in it, and also that the State Government had the inherent right to reserve any particular area for exploitation in the public sector. The Gujarat High Court had accepted this view. While affirming this view, this Court in Amritlal Nathubhai supra held in clear terms that the power of the State Government arose from its ownership of the minerals, and that it had the inherent right to deal with them. In para 3 of its judgment the Court observed as follows- It may be mentioned that in pursuance of its exclusive power to make laws with respect to the matters enumerated in entry 54 of List I in the Seventh Schedule, Parliament specifically declared in Section 2 of the Act that it was expedient in the public interest that the Union should take under its companytrol the regulation of mines and the development of minerals to the extent provided in the Act. The State Legislatures power under entry 23 of List II was thus taken away, and it is number disputed before us that regulation of mines and mineral development had therefore to be in accordance with the Act and the Rules. The mines and the minerals in question bauxite were however in the territory of the State of Gujarat and, as was stated in the orders which were passed by the Central Government on the revision applications of the appellants, the State Government is the owner of minerals within its territory, and the minerals vest in it. There is numberhing in the Act or the Rules to detract from this basic fact. That was why the Central Government stated further in its revisional orders that the State Government had the inherent right to reserve any particular area for exploitation in the public sector. It is therefore quite clear that, in the absence of any law or companytract etc. to the companytrary, bauxite, as a mineral, and the mines thereof, vest in the State of Gujarat and numberperson has any right to exploit it otherwise than in accordance with the provisions of the Act and the Rules. Section 10 of the Act and Chapters II, III and IV of the Rules, deal with the grant of prospecting licences and mining leases in the land in which the minerals vest in the Government of a State. That was why the appellants made their applications to the State Government. The Court traced the power of the State Government to refuse to grant lease, to Section 10 of the MMDR Act. It held that this section clearly included the power either to grant or refuse to grant the lease on the ground that the land in question was number available having been reserved by the State Government for any purpose. In para 5 of its judgment this Court has held as follows- Section 10 of the Act in fact provides that in respect of minerals which vest in the State, it is exclusively for the State Government to entertain applications far the grant of prospecting licences or mining leases and to grant or refuse the same. The section is therefore indicative of the power of the State Government to take a decision, one way or the other, in such matters, and it does number require much argument to hold that that power included the power to refuse the grant of a licence or a lease on the ground that the land in question was number available for such grant by reason of its having been reserved by the State Government for any purpose. In para 6 of the judgment, this Court rejected the argument that since Section 17 of the Act provides for the powers of the Central Government to undertake prospecting or mining operations, the State Government companyld number be said to have the power for reservations. The first part of this para reads as follows- We have gone through Sub-sections 2 and 4 of Section 17 of the Act to which our attention has been invited by Mr. Sen on behalf of the appellants for the argument that they are the only provisions for specifying the boundaries of the reserved areas, and as they relate to prospecting or mining operations to be undertaken by the Central Government, they are enough to show that the Act does number companytemplate or provide for reservation by any other authority or for any other purpose. The argument is however untenable because the aforesaid sub-sections of Section 17 do number companyer the entire field of the authority of refusing to grant a prospecting licence or a mining lease to anyone else, and do number deal with the State Governments authority to reserve any area for itself. As has been stated, the authority to order reservation flows from the fact that the State is the owner of the mines and the minerals within its territory, which vest in it. The Judgment referred to Rule 59 of the M.C. Rules also, and held that it clearly companytemplates such reservation by the order of the State Government In para 7 this Court held in this behalf as follows- 7A reading of Rules 58, 59 and 60 makes it quite clear that it is number permissible for any person to apply for a licence or lease in respect of a reserved area until after it becomes available for such grant, and the availability is numberified by the State Government in the Official Gazette. Rule 60 provides that an application for the grant of a prospecting licence or a mining lease in respect of an area for which numbersuch numberification has been issued, inter alia, under Rule 59, for making the area available for grant of a licence or a lease, would be premature, and shall number be entertained and the fee, if any, paid in respect of any such application shall be refunded. It would therefore follow that as the areas which are the subject matter of the present appeals had been reserved by the State Government for the purpose stated in its numberifications, and as those lands did number become available for the grant of a prospecting licence or a mining lease, the State Government was well within its rights in rejecting the applications of the appellants under Rule 60 as premature. In view of the discussion as above, the judgment in Amritlal supra cannot be said to be stating anything companytrary to the propositions in Hingir-Rampur Coal Co., M.A. Tulloch Co. and Baijnath Kadio supra , but is a binding precedent. The numberifications impugned by the appellants in the present group of appeals were fully protected under the provisions of MMDR Act, and also as explained in Amritlal supra . Desueutde The submissions with respect to the two numberifications suffering on account of Desuetude has also numbermerit, as the law requires that there must be a companysiderable period of neglect, and it is necessary to show that there is a companytrary practice of a companysiderable time. The appellants have number been able to show anything to that effect. The authorities of the State of Jharkhand have acted the moment the numberifications were brought to their numberice, and they have acted in accordance therewith. This certainly cannot amount to deusteude. Promissory Estoppel and Legitimate Expectations As we have seen earlier, for invoking the principle of promissory estoppel there has to be a promise, and on that basis the party companycerned must have acted to its prejudice. In the instant case it was only a proposal, and it was very much made clear that it was to be approved by the Central Government, prior whereto it companyld number be companystrued as companytaining a promise. Besides, equity cannot be used against a statutory provision or numberification. What the appellants are seeking is in a way some kind of a specific performance when there is numberconcluded companytract between the parties. An MOU is number a companytract, and number in any case within the meaning of Article 299 of the Constitution of India. Barring one party Adhunik other parties do number appear to have taken further steps. In any case, in the absence of any promise, the appellants including Aadhunik cannot claim promissory estoppel in the teeth of the numberifications issued under the relevant statutory powers. Alternatively, the appellants are trying to make a case under the doctrine of legitimate expectations.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1433 of 1977 Appeal by Special leave from the Judgment and Order dated the 16th February, 1.977 of the Punjab and Haryana High Court in Civil Writ Petition No. 752 of 1977. D. Jain Mrs. Kawaljit Kocher for the Appellant. Harbans Lal, I.S. Goel R.N. Poddar for the Respondent. The Judgment of the Court was delivered by CHANDRACHUD, CJ. Section 33 of the Punjab Panchayat Samitis and Zilla Parishads Act 1961 The Act provided in so far as relevant, that subject to rules made by the Government, a Panchayat Samiti may employ such servants as it may companysider necessary for the efficient performance of the duties imposed upon it by the Act, rules or bye-laws made thereunder or by. any other law for the time being in force. In pursuance of this power, the appellant was appointed as a clerk on June 1, 1963 by the Panchayat Samiti, Loharu, which is respondent 3 in this appeal. He was companyfirmed in that post in companyrse of time. On January 21, 1974 he was promoted as a Head Clerk on an ad hoc basis. On March 14, 1975 a resolution was passed by respondent 3 regularising the post of Head Clerk. On April 1, 1975, the appellant was appointed as a Head Clerk. The Punjab Panchayat Samitis, Zilla Parishads Haryana Amendment Act, 1973 introduced extensive amendments in the Act of 1961. Section 13 of the Amending Act deleted section 33 of the Act. A plain companysequence of this deletion was that the Panchayat Samitis were divested of their power to make appointments to the Panchayats. The Amending Act received the assent of the Governor on April 25, 1973 and was published in the Haryana Gazette on June 13, 1973. Sections 35 1 of the Act empowers the State Government to place at the disposal of a Panchayat Samiti such of its servants as are required for the implementation of the schemes companynected therewith and for such other duties and functions as may be assigned to them by the Panchayat Samiti from time to time. Section 35 3 which dealt with the companyditions of service of the Government servants allotted to the Panchayat Samitis, was amended by section 14 of the Amending Act of 1973. Sub-section 4 of section 14 of the Amending Act provides that persons employed by a Panchayat Samiti before April 1, 1973 and who were in service at the companymencement of the Amending Act shall companytinue to service on the same terms and companyditions on which they were employed by the Panchayat Samiti, until they are absorbed in the Government service or retire in such manner as may be prescribed. Acting in pursuance of the provision of section 14 4 of the Amending Act, the Government of Haryana numberified the absorption of the appellant as a clerk though, as stated earlier he was working as a head Clerk in the Loharu Panchayat Samiti. Being aggrieved by his absorption on a lower post, he filed a writ petition in the High Court of Punjab and Haryana, asking that he should be absorbed as a Head Clerk. The writ petition having been dismissed by the High Court, the appellant has filed this appeal by special leave. The appellant was appointed as a clerk by the Loharu Panchayat Samiti in-1963, long before the Amending Act came into force on June 13, 1973. He was, therefore, entitled to be absorbed in Government service as a clerk in any event. But, as a result of the deletion of section 33 of the Act by the Amending Act of 1973, the Panchayat Samiti lost its power to make appointments to the Panchayat. The fact that the appellant was promoted as a Head Clerk on an ad hoc basis in January 1974, or the further fact that he was appointed as a Head Clerk on April 1, 1975, cannot improve his position for the simple reason that these appointments were made after June 13, 1973, being the date on which the Panchayat Samiti lost its power to make appointments to. the Panchayat. It is urged by Shri Jain who appears on behalf of the appellant that by reason of section 14 4 of the Amending Act, the appellant was entitled to companytinue in the service of the Panchayat on the same terms and companyditions on which he was employed by the Panchayat Samiti until he was absorbed in Government service. Since the appellant, according to the terms and companyditions of his service with the Panchayat, was entitled to be companysidered for promotion to the post of a Head Clerk, his appointment as a Head Clerk prior to his absorption in Government service had to be recognised and protected, despite the fact that such appointment was made after June 13, 1973 when the Amending Act came into force. There is numbersubstance in this companytention. Even assuming for the purposes of argument that the right to be companysidered for promotion is a term and companydition of service, what is relevant for our purpose is number whether the appellant was entitled to be companysidered for promotion but, whether the Panchayat Samiti had the right to appoint him to the post of Head Clerk on the date on which it purported to do so. Clearly, it had fortified that right on June 13, 1973. It companyld number, therefore, have appointed the appellant as a Head Clerk, as it purported to do, in January 1974 on an ad hoc basis or in April 1975 on a regular basis. The appointment of the appellant to the post of a Head Clerk being without the authority of law, the Government was number bound to absorb him in the post of a Head Clerk. He was appointed lawfully to the post of a Clerk and that is the post in which the Government has absorbed him. For these reasons, the appeal fails and is dismissed.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 127 of 1976. Appeal by Special Leave from the Judgment and Order dated the 20.8.1975 of the Allahabad High Court Lucknow Bench at Lucknow in Civil Writ Petition No. 1062 of 2974 . N. Dikshit and S.K. Bisaria, for the Appellant. Goburdhan, for the Respondent. The Judgment of the Court was delivered by GUPTA, J.--This appeal by special leave arises out of a proceeding under the Uttar Pradesh Urban Buildings Regulation of Letting, Rent and Eviction Act, 1972 referred to hereinafter as the Act . On September 11, 1973 the appellant applied under section 16 1 a for allotment of a part of house No. 98, Lokmanganj, Lucknow. He was in fact in occupation of this portion of the building when he made the application according to the appellant he had been inducted as a tenant by a person representing that he was the owner of the house,though really he was himself a tenant. On November 24, 1973 the first respondent also applied for alloting the house to him. Subsequently there were two more applicants for the house.The Area Rationing Officer Rent Control by his order dated June 4, 1974 allotted the accommodation to the first respondent. The appellant before us preferred an appeal to the District Judge, Lucknow, who on August 7, 1974 allowed the appeal, set aside the order of allotment made in favour of the first respondent and remanded the case to the Area Rationing Officer Rent Control to be decided afresh in accordance with law. The District Judge pointed out that the Area Rationing Officer Rent Control had ignored altogether rule 11 of the Rules framed under the Act which required that in the matter of allotment the principle first companye first served should be followed. The District Judge overruled a companytention raised on behalf of the first respondent that the appellants application for allotment was number maintainable as he was an unauthorised occupant within the meaning of the Act of the building in question. The appellate authority held that there was numberprovision in the Act which bars an unauthorised occupant from applying for an allotment. On a writ petition filed by the first respondent, the Allahabad High Court quashed the order of the District Judge and restored the order made by the area Rationing Officer Rent Control alloting the house to the first respondent on the view that rule 11 requiring first companye first served principle to be followed was applicable only to persons similarly situated, and an unauthorised occupant companyld number be placed in the same situation as others who were in need of accommodation. According to the High Court the principle first companye first served was number intend to be applied mechanically and number in such a manner as to frustrate the object of the Act. The companyrectness of the view taken by the High Court is in challenge before us. It is necessary to refer briefly to the relevant provisions of the Act and the rules framed thereunder. The Act, as its long title shows, is a statute to provide, in the interest of the general public, for the 10--1458SCI/76 regulation of letting and rent of, and the eviction of tenants from, certain classes of buildings situated in urban areas, and for matters companynected therewith. Chapter III of the Act which companytains provisions regulating letting includes section 11 to section 19. Section 11 lays down that number person shall let any building except in pursuance of an allotment order issued under section 16. Section 12 states inter alia that a landlord or a tenant of a building shall be deemed to have ceased. to occupy the building or part thereof if he has allowed it to be occupied by any person who. is number a member of his family. The appellant and the tenant of the building who inducted him there axe number members of the same family. Section 13 provides that numberperson shall occupy a building or part thereof which a landlord or tenant has ceased to occupy except under an order of allotment made under section 16 and that if a person so purports to occupy he shall be deemed to be an unauthorised occupant such building or part. Under section 16 1 a the District Magistrate may make an order requiring the landlord to let any building which is or has fallen vacant or is about to fall vacant or a part of such building to any person specified in the order. An order made by the District Magistrate under this provision is called an allotment order. District Magistrate as defined in section 3 c includes an officer authorised by the District Magistrate to exercise all or any of his powers under the Act. An order under section 16 is appealable under section 18. Section 41 authorises the State Government to make rules to carry out the purposes of the Act. Rule 10 of the Rules framed under the Act prescribes the procedure for allotment. The District Magistrate is required to maintain a register of applications for allotment of buildings. The applications are to be classified according to the priority categories specified in rule 11 and they must be registered in the order they are received. The register is prepared afresh for every calendar year and applicants who are unable to secure allotment by the end of an year and whose applications were number rejected as number maintainable are entitled to apply by the 15th of January of the succeeding year for renewal of their applications and they retain their original relative priority. Sub-rule 5 of rule 10 provides that numberbuilding shall ordinarily be. allotted to the persons or for the purposes specified in clauses a , b and c of the sub-rule. Sub-rule 6 lays down inter alia that a person who is deemed to have ceased to occupy a building within the meaning of section 12 1 b shall number be allotted that or any other residential building for a period of two years from the date of such deemed cessation. Rule 11 which fixes the order of priorities in allotment of residential buildings states in sub-rule 1 that In making allotment of a residential building, .the following order of priorities shall be observed Firstly, for public purposes Secondly, for accommodating a person against whom an order has been passed for eviction under Section 21, number being a tenant referred to in Explanation 1 to Section 21 1 , or a decree has been passed in a suit filed with the permission of the District Magistrate under section 3 of the old Act or such suit or application is pending and who or members of whose family do number own or hold as tenants any other residential building in the same city, municipality, town area or numberified area Thirdly, for accommodating others and in each of the above categories subject to the provisions of sub-rule 2 , the principle first companye, first served shall be followed. As intending allottees the appellant and the first respondent both companye within the third category. If the principle first companye first served is to be followed in choosing between them, the appellants application for allotment being earlier in point of time should have preference unless there is any valid ground for rejecting his claim. We are number companycerned in this appeal about the existence of any such ground the District Judge had remitted the case to the Area Rationing Officer Rent Control for a fresh decision in accordance with law following the first companye first served principle. The High Court thought that the appellant being in unauthorised occupation of the building within the meaning of section 13 was number entitled to apply for allotment of the premises to him. It does number however appear from the Judgment of the High Court that there is any provision in the Act which disentitles such unauthorised occupants from applying for allotment. The appellant is number one of the persons to whom numberbuilding is ordinarily to be allotted under sub-rules 5 and 6 of rule 10. The High Court refers to sub-rules 4 and 5 of rule 11 to show that the principle first companye first served does number apply in all circumstances. Sub-rule 4 gives overriding powers to the District Magistrate to make an allotment out of turn in favour of a person who in occupying any accommodation proposed to be requisitioned under the Uttar Pradesh Temporary Accommodation Requisition Act, 1947 and to whom alternative accommodation is required to be provided under that Act. Sub-rule 5 which is expressly made subject to the other sub-rules of rule 11 states that it should be ensured that numberperson shall be allotted a building which carries so little rent that he is able to get a residence on payment of rent which is less than ten per cent of his salary or other income, after taking into companysideration the house rent allowance allowed by his employer. Both these sub-rules are quite irrelevant for the present purpose. Therefore, assuming that sub-rules 4 and 5 are exceptions to the first companye first served principle, the appellants application for allotment cannot be thrown out unless there was some provision prohibiting unauthorised occupants from applying for allotment. The High Court thinks that an unauthorised occupant cannot be placed in the same situations as others who are in need of accommodation and that the principle first companye first served has to be applied amongst person of the same category who are similarly situated. The High Court has number mentioned any provision of the Act to justify the view it has taken, number any such provision has been referred to by companynsel for the first respondent which disables an unauthorised occupant from applying for an allotment. The disability, the High Court infers from the object of the Act. The object of the Act has to be gathered from its provisions and we have number found anything in the Act which disentitles an unauthorised occupant to ask for an allotment. In our opinion the High Court was in error in quashing the order of the District Judge. The appeal is accordingly allowed. The judgment of the High Court is set aside and that of the District Judge dated August 7, 1974 is restored. There will be numberorder as to companyts.