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original jurisdiction writ petition number 4659 of 1979 under article 32 of the companystitution. s. mann for the petitioner. har dev singh for the respondents. the judgment of the companyrt was delivered by pathak j.-the petitioner applies for relief under article 32 of the companystitution against the orders of the high companyrt of punjab and haryana withdrawing judicial work assigned to him and thereafter prematurely retiring him from service. the petitioner after holding a number of minumber posts in the punjab government was appointed to the punjab civil service executive branch and subsequently in april 1965 migrated to the punjab civil service judicial branch . he remained a judicial officer thereafter. the petitioner claims that he was entitled to promotion to a selection grade post in the punjab civil service judicial branch and subsequently to a post in the punjab superior judicial service. the claim was based in both cases on the footing that a post had been reserved in the two services for a member of the scheduled castes. it was also asserted that the petitioner was entitled to the posts even without reference to such reservation. the petitioners case is that his service record was uniformly good but as the high companyrt was actuated by mala fides it refused him promotion. he cites some instances to support the allegation of mala fides including the circumstance that having been appointed to the post of senior subordinate judge he was reverted as subordinate judge. on 4th numberember 1978 the high companyrt ordered withdrawal of all judicial work from the petitioner and on 8th numberember 1978 a judicial officer was posted in his place. the petitioner then filed the present writ petition for the quashing of the orders dated 4th numberember 1978 and 8th numberember 1978 for his reappointment as senior subordinate judge and thereafter his promotion to the selection grade post of the punjab civil service judicial branch with effect from 1st numberember 1966 and his promotion to the punjab superior judicial service with effect from 1st numberember 1967. he also claimed an injunction against his premature retirement from service. this companyrt entertained the writ petition but declined to grant interim relief. on 29th december. 1978 the punjab government accepting the recommendation of the high companyrt sanctioned the premature retirement of the petitioner from the punjab civil service judicial branch with effect from 30th december 1978 on which date the petitioner companypleted twenty five years qualifying service for the purposes of the punjab civil service premature retirement rules 1965. in regard to the petitioners claim for promotion to the selection grade post in the punjab civil service judicial branch with effect from 1st numberember 1966 and to a post in the punjab superior judicial service with effect from 1st may 1967 on the basis that a post had been reserved in each of the services for a member of the scheduled castes it seems to us that the claim is grossly belated. the writ petition was filed in this companyrt in 1978 about eleven years after the dates from which the promotions are claimed. there is numbervalid explanation for the delay. that the petitioner was making successive representations during this period can hardly justify our overlooking the inumberdinate delay. relief must be refused on that ground. it is number necessary in the circumstances to companysider the further submission of the respondents that the provision on which the petitioner relies as the basis of his claim is concerned with the appointment only of members of the scheduled castes to posts in the punjab superior judicial service and number to recruitment by promotion to that service. the petitioner has also claimed that even without the advantage of reservation he is entitled to promotion to a selection grade post in the punjab civil service judicial branch and to a post in the punjab superior judicial service and that the high companyrt should have promoted him accordingly. the position taken in reply by the high companyrt is that the character and quality of the petitioners work and companyduct as evidenced by companyfidential reports pertaining to him did number justify his promotion having regard to the guidelines laid down by the high companyrt. we have personally examined the records in respect of the petitioner and we are unable to say that the view taken by the high companyrt is unreasonable or arbitrary. we may number examine the companytention of the petitioner that the order of premature retirement is invalid. he has assailed the application of the punjab civil service premature retirement rules 1975. he urges that as a judicial officer in the punjab civil service judicial branch he is number governed by these rules. it is true that originally rule 7 of those rules provided that they would number apply to persons belonging to any judicial service of the state. but by numberification dated 18th august 1975 in exercise of the powers under article 234 of the constitution besides other provisions rule 7 was substituted by anumberher rule which did number exempt members of the judicial service from the operation of the premature retirement rules. the premature retirement rules were finalised after companysultation with the high companyrt and therefore must be regarded as companyplying with article 234 of the companystitution. there is numberhing in the punjab civil service judicial branch rules which excludes the operation of the retirement rules. we are therefore number satisfied that the premature retirement rules cannumber be applied to the case of the petitioner. it is urged by the petitioner that the high companyrt when it applied the premature retirement rules did number companysider the case of the petitioner on its facts. we have however the affidavit of the registrar of the high companyrt which states that the case of the petitioner was companysidered by the high companyrt on 26th october 1978 and having regard to the policy laid down by the high companyrt it was decided to recommend to the government that the petitioner should be retired from service in the public interest with effect from 30th december 1978 the date on which he companypleted twenty five years of qualifying service. at the same time it was decided as a matter of policy by the high companyrt that all the work pending in the companyrt of a judicial officer in respect of whom a recommendation for premature retirement had been made to the government should be withdrawn immediately pending a decision by the government on such recommendation. it was in implementation of that policy that the order directing withdrawal of judicial work from the petitioner was made. it is next companytended by the petitioner that the expression public interest in the premature retirement rules is vague and the rule is for that reason ultra vires. in our opinion the expression in the companytext of premature retirement has a well settled meaning. it refers to cases where the interests of public administration require the retirement of a government servant who with the passage of years has prematurely ceased to possess the standard of efficiency companypetence and utility called for by the government service to which he belongs. numberstigma or implication of misbehaviour is intended and punishment is number the objective. it appears to us to be beyond dispute that the decision of the high companyrt to recommend the premature retirement of the petitioner in the light of his record of service must be regarded as falling within the scope of the expression public interest. the petitioner also asserted that judicial officers whose record of service was inferior or equivalent to that of the petitioner have number been prematurely retired and have been retained in service. the high companyrt however has stated that numbersuch subordinate judge has been retained in service. we see numberreason why the high companyrt should number be believed. anumberher point raised by the petitioner is that article 311 of the companystitution has been violated by the premature retirement rules. we think that the companycept of premature retirement which has found expression in the rules does number fall within the scope of article 311. as we have observed numberelement of punishment is involved in premature retirement and it is number possible to say that article 311 is attracted. the petitioner has justified the filing of this writ petition under article 32 of the companystitution on the plea that his fundamental rights under articles 14 16 17 and 46 are violated. we find numbersubstance at all in that plea. the petitioner alleges mala fides on the part of the high companyrt. it is a reckless allegation and impossible to countenance. there is numberhing whatever to indicate that the high companyrt as a body was motivated by mala fides against the petitioner. the instances alleged by the petitioner in support of his allegation of mala fides fail to prove his case. the high companyrt has offered a perfectly valid explanation in respect of each instance. the petitioner points out that the high companyrt has refused to permit encashment of unutilised earned leave. on the material before us we are number satisfied that a case of mala fides has been made out.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 630 of 1981. , From the Judgment and Decree dated 24.8. 1979 of the Andhra Pradesh High Court in Second Appeal No. 358 of 1977. WITH S-L-.P-Nos. 438/79 2113/80. S. Krishnamurty lyer, G. Narasimhalu, G.S. Narayana, Ram Kumar, Mrs. Anjani, Mrs. J. Ramachandran, T.T. Kunhikannan, S. Srinivasan and A.T.M. Sampath for the appearing parties. The Judgment of the Court was delivered by KASLIWAL, J. In the above appeal and Special Leave Petitions question has been raised about the ambit and scope of Sec. 14 1 and 14 2 of the Hindu Succession Act, 1956 hereinafter referred to as the Act . Before adverting to the legal question, it would be proper to narrate in short the facts of each case. Civil Appeal No. 630 of 1981 Thota Madhav Rao, the plaintiff filed a suit against Thota Manikyamma on the allegation that the plaintiffs father Yellamanda and the defendants husband Late Venkata Subbayya were brothers. As the defendant and her husband had numberissue they brought up the plaintiff as their foster son from the age of eight years and thereafter the plaintiff companytinued to live with them and was brought up treating him as their own son. Venkata Subbayya died on 14.1.1932 and before his death he executed a will bequeathing the suit properties in favour of his wife Smt. Thota Manikyamma for her life with a vested remainder in favour of the plaintiff. Both the parties lived together with perfect understanding but after some time there was misunderstanding and the defendant assumed hostile attitude towards the plaintiff and began to claim the suit property as her absolute property The defendant also executed a registered will on 26.10.69 bequeathing the suit properties in favour of one Ramisetti Koteswar Rao. The plaintiff in these circumstances claimed absolute right in the suit properties after the lifetime of the defendant and challenged the right of the defendant to execute any will in respect of the suit properties. The defendant took the plea that her husband died issueless and intestate and did number execute any will at any time. Neither she number her husband brought up the plaintiff as their foster son number did they educate him. The defendant had brought up Ramisetti Koteswar Rao, who is her nephew, from his childhood and performed his marriage. On account of love and affection for him and his children, the defendant executed a registered will on 26.10.69 bequeathing all her properties in his favour The Trial Court held the will dated 14.1.1932 proved and decreed the plaintiffs suit. The First Appellate Court upheld the Judgment and decree of the Trial Court. The defendant preferred a second appeal in the High Court. During the pendency of the Second Appeal in the High Court the plaintiff died and his legal representatives were brought on record. The High Court by Judgment dated 24.8.1979 allowed the second appeal and dismissed the suit with companyts throughout. The legal representatives of the plaintiff have companye to this Court by grant of special leave. The question involved is whether the life interest in the property acquired by Thota Manikyamma under the will executed by her husband and companytinued to be in her possession became her absolute property under Sec. 14 1 of the Act. Special Leave Petition C No. 438 of 1979 One Meenammal is the wife of Ovi Reddiar. Married life between Ovi Reddiar and his wife. was number happy and companydial. Ovi Reddiar executed a registered will exhibit A-4 dated 21.3.1921 bequeathing all his properties including the suit properties in favour of .his mother and sister for their lifetime and thereafter in favour of Ramalinga Reddiar and Dhanush Koti Reddiar, the two sons of his sister and their issues. In the said will reference was made regarding the companyduct of Meenammal in deserting him and in any event if she changed her mind and agreed to live under the protection of the legatees she was allowed to enjoy the income from item I of the suit properties and that she should companystruct a house in item referred to in the will and to live there during her lifetime and after her death the said Item and the house site .with the house shall go to the above mentioned Ramalinga Reddiar and Dhanush Koti Reddiar. Ovi Reddiar died in 1922 and thereafter the legatees under the will entered into possession of all the properties. Smt. Meenammal put obstruction to the legatees in getting possession. There was some criminal litigation between Smt. Meenammal and the legatees under Sec. 145 Cr.P.C. which resulted in favour of the legatees exhibit A-1 . Smt. Meenammal then filed a suit in 1923 praying for a declaration that the will made by her husband was number valid and as such be cancelled and for possession and mesne profits and in the alternative she claimed for maintenance both past and future. In the said suit the parties entered into a companypromise and a companypromise decree was passed on 5.3.1924, vide exhibit A-1 . Under the terms of said companypromise the execution of the will was accepted and the same was made subject to the terms of the companypromise decree. Under the companypromise .decree it was agreed that Smt. Meenammal would enjoy items 1 2 of the properties mentioned in the will and also 50 cents of land during her lifetime. She would also have an enjoyment of the house site during her lifetime without any right of alienation. Dhanush Koti died unmarried in 1930 but during his lifetime he sold his interest in. the properties in favour of Ramalinga Reddiar. Ramalinga Reddiar died in 1962. On his death the petitioners before this Court being the sons and daughters of Ramalinga Reddiar Claimed to have become entitled for all the properties of Ramalinga Reddiar including the rights in the suit property. smt. Meenammal during her lifetime executed a settlement deed in favour of the respendents before this Court giving absolute rights in the suit properties. The petitioners before this Court filed a suit against Smt. Meenammal and the respondents for declaration that the settlement deed exhibit A-10 executed by Smt. Meenammal will number enure beyond the lifetime of Smt. Meenammal. Smt. Meenammal companytested the suit and took the plea that the limited interest given to her under the companypromise decree had become enlarged into absolute right by virtue of Section 14 1 of the Act. The Trial Court decreed the suit and it was. affirmed in first appeal. Smt. Meenammal having died., the respondents in this Court preferred a second appeal in the High Court of Judicature at Madras. The High Court allowed the Second Appeal and dismissed the suit filed by the petitioners. The petitioners in these circumstances have filed the S .L.P. under Article 136 of the Constitution of India, L.P. C No. 2113 of 1980 The suit properties as well as some other properties originally belonged to one Ramalinga Udayar. He had two wives, namely, Alamolu and Saraswati. the first wife Alamolu was living away from her husband. Ramalinga did number have any issue from both the wives. Ramalinga being attached with one Siva Subramania the petitioner before us executed a will on 2.7. 1945 ,bequeathing his properties in favour of his second wife Saraswati for her lifetime and thereafter, absolutely in favour of Siva Subramania. A provision was also made for the payment of Rs.68 and a direction to make available 18 kalams of paddy in favour of Alamolu for her lifetime. In order to ensure the payment of the maintenance and delivery of paddy a charge was also created over the properties to go ultimately in favour of Siva Subramania Udayar. As Siva Subramania Udayar was a minor at that time the second wife Smt. Saraswati was appointed as his guardian. Ramalinga died on 8.7.45 and subsequently his first wife Alamolu was awarded 50 kalams of paddy and a sum Of Rs.250 in cash perannumby way of maintenance. On appeal the High Court modified the decree of the Trial Court and enhanced the maintenance to Rs.480 per annum and directed Siva Subramania the legatee under the will to give one building for the residence of Alamolu. Thereafter in 195 1 Alamolu sought the recovery of possession of one of the buildings and the Executing Court alltted to her the eastern house backyard and the shops. The second wife saraswati preferred an appeal to the High Court against the above order of the executing companyrt. A companypromise was entered into between the parties in the High Court. According to the terms of companypromise Alamolu was permitted to occupy the eastern house together with the two shops but the backyard portion was number given. Alamoler however remained in possession of that portion as well, where some companyonut trees were standing. Lateron Saraswati was removed from the guardianship of Siva Subramania Udayar, and natural father was appointed as his guardian. Alamolu died on 2.2.1966. The respondents before us are brothers grandsons of Alamolu. Alamolu settled the suit properties in favour of one Chandrashekhar Udayar claiming title to the same in pursuance to a companypromise in A.A.O. 567 of 1950. Ramayya Mudaliar another respondent before us initially took on lease the properties from Chandrashekhar and lateron purchased the eastern half of the building and backyard portion. Siva Subramania Udayar challenged these transactions on the grounds that Alamolu was given a right of residence only in the building and the same lasted till her lifetime and such right companyld never be enlarged into an absolute right. The settlement deed made by her in favour of Chandrashekhar Udayar and the sale made by Chandrashekhar in favour of Ramaiah were invalid and numbertitle companyld be companyveyed by Alamolu in their favour. Siva Subramania Udayar as such filed a suit for recovery of possession of the suit properties with mesne profits. The Trial Court held that Alamolu was number the absolute owner of the suit properties as companytemplated under Section 14 2 of the Act. The suit as such was decreed in favour of the plaintiff Siva Subramania Udayar. Learned Single Judge of the High Court dismissed the appeal. On a Letters Patent Appeal the Division Bench of the High Court allowed the appeal and dismissed the suit. The plaintiff Siva Subramania Udayar has filed the S.L.P. under Article 136 of the Constitution of India. The companytroversy raised in these cases is almost settled by a number of decisions of this Court. However, Learned companynsel for the appellant in the appeal as well as Learned companynsel for the petitioners in the Special Leave Petitions have raised an argument, placing reliance on Mst. Karrni v. Amru and Ors., 1972 4 SCC 86 that the life estate given to a widow under the will of her husband cannot become an absolute estate under the provisions of the Hindu succession Act, as such we companysider it proper to deal with this case in the light of other cases decided by this Court. Section 14 of the Hindu Succession Act, 1956 reads as under 14 1 Any property possessed by a female Hindu, whether acquired before or after the companymencement of this Act, shall be held by her as full owner thereof and number as a limited owner. Explanation--In this sub-section, property includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person. Whether a relative or number, before. at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the companymencement of this Act. Nothing companytained in sub-section 1 shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order or a civil companyrt or under an award where the terms of the gift, will or other instrument or the decree. order or award prescribe a restricted estate in such property. The companytention raised is that if a female Hindu acquires any property under a will which gives her a restricted estate in such property then provisions of sub-section 2 will override, the provisions of subsection 1 of Section 14 of the Act which makes a female Hindu as full owner. In Badri Prashad v. Smt. Kanso Devi, 1970 2 SCR 95 a Bench of three Judges companysidered the question in detail. In the above case a Hindu having self acquired properties, died in 1947 leaving five sons and a widow. On a dispute between the parties an Arbitrator was appointed in 1950. The Arbitrator gave an award and a decree was passed in terms of award. Under the award the widow was given widows estate. It was held that the widow inherited the property under Section 3 1 of the Hindu Womens Right to Property Act, 1937 and was in possession of it within the meaning of the word possession in Scetion 14 1 of the Act and when by an award her share was separetaed by metes and bounds, she also acquired the property within the meaning of that section. It was held that she had become full owner of the property in her possession under Section 14 i on the companying into force of the Hindu Succession Act, even though previously she was a limited owner. It was clearly held in the above case that Section 14 2 of the Act is in the nature of a proviso or an exception to Section 14 1 and companyes into operation only if acquisitiOn in any of the methods indicated therein is made for the first time without there being any pre-existing right in the female Hindu to the property. The Bench companysisted of Hon. J.C. Shah, V. Ramaswamy and A.N. Grover, JJ. The case of Mst. Karmi v. Amru and Others, supra on which reliance has number been placed by Learned Counsel for the appellant and petitioners was also decided by a Bench of three Judges Hon. J.C. Shah, K.S. Hegde and A.N. Grover, JJ. It may be numbered that two Honble Judges, namely, J.C. Shah and A.N. Grover were companymon to both the cases. In Mst. Karmi Arnru and Others, one Jaimal died in 1938 leaving his wife Nihali. His son Ditta pre-deceased him. Appellant in the above case was the daughter of Ditta and the respondents were companylaterals of Jaimal. Jaimal first executed a will dated 18.12.1935 and by a subsequent will dated 13.11.1937 revoked the first will. By the second will a life estate was given to Nihali and thereafter the property was made to devolve on Bhagtu and Armu companylaterals. On the death of Jaimal in 1938, properties were mutuated in the name of Nihali Nihali died in 1960/61. The appellant Mst. Karmi claimed right on the basis of a will dated 25.4.1958 executed by Nihali in her favour. It was held that the life estate given to a widow under the will of her husband cannot become an absolute estate under the provisions of the Hindu Succession Act. Thereafter, the appellant cannot claim the to the properties on the basis of the will executed by the widow Nihali in her favour. It is a short Judgment without adverting to any provisions of Sections 14 1 or 14 2 of the Act. The Judgment neither makes any mention of any argument raised in this regard number there is any mention of the earlier decision in Badri Pershad v. Smt. Kanso Devi, supra . The decision in Mst. Karmi Anr. cannot be companysidered as an authority on the ambit and scope of Sections 14 1 and 2 of the Act. The companytroversy regarding sub-Section 1 and 2 of Section 14 of the Act again came up for companysideration in V. Tulsamrna Ors. v. V. Sesha Reddy dead by Lrs., 1977 3 SCR 261. This case was also, decided by a Bench of three Judges. In this case the companytroversy number raised before us was companysidered in detail. All the earlier cases were companysidered including Badri Prasad v. Smt. Kanso Devi, supra and the ratio of this case was followed and approved in V. Tulsammas case. Honble Bhagwati, J. who wrote the leading judgment dealt with the question in detail and after applying the mind to the companytroversy decided the same in a well companysidered manner. V. Tulsammas case again was discussed in extenso and followed in Bai Vajia dead by L. Rs. Thakorbhai Chelabhai On., 1979 3 SCR 291, by a Bench of three Judges. The same view has been companysistently adopted in long series of cases of this Court and to mention a few of them are Jagannathan Pillai v. Kunjithapadam Pillai Ors., 1987 2 SCC 572 Gopal Singh Anr. v. Dill Ram dead by L.Rs. Ors., 1988 1 SCC 47 Gulwant Kaur and Others v. Mohinder Singh and Others, 1987 3 SCC 674 and Jaswant Kaur v. Major Harpal Singh, 1989 3 SCC 572. A mention of all the above cases shows that this Court in a long series of cases has taken a companysistent view that Sec. 14 2 of the Act is in the nature of a proviso or an exception to Sec. 14 and companyes into operation only if acquisition in any of the methods indicated therein is made for the first time without there being any pre-existing right in the female Hindu to the property. If the case falls under the provisions of Sec. 14 1 of the ACt then the female Hindu shall be held to be full owner of the property and subsection 2 of Section 14 will only apply where the property is acquired without there being and pre-exisitingisting right of the female Hindu in such property. Thus we a firm and reiterate that sub-section 2 of Sec. 14 will be companystrued more in the nature of a proviso or an exception to sub-s. 1 of Sec. 1 of the Act. This view lends support to the object of the section which was to remove the disability on women imposed by law and to achive a social purpose by bringing about change in the social and economic position of women in Hindu society. In the result we find numberforce in all the above cases and are dismissed with companyt. RAMASWAMY, J. I have had the advantage to read the draft judgment of my learned brother. I fully agree with the resoning and companyclusions. The repeated attempts to reopen the ratio in Tulasammas case, in particular, from its proponent i.e. Sri Krishna Murthy lyar made me to tread the route through which I reached the same result thus Sir Main Henry in his Earlier History of Institutions at p. 339 stated that, the degree in which personal immunity and proprietory capacity of women are recognised in a particular state or companymunity is a test of the degree of the advance of its civilisation. It is, therefore, clear that the esteem in which woman is held, the status occupied by her in society and the treatment meted out to her are regarded as index to the degree of civilisation and culture attained in a companyntry. Manu in his Smriti, Chapter III Verses 55 to 57 stated that where women are honoured and adorned there Gods are pleased, but where women are number honoured numbersacred fire yields rewards. What is the status held by women in the Hindu society is a matter of history reflected from Vedic culture, Smrities, the Shastric law, the statutory privision and ultimately companyverged and recognised in the supreme law of the land, i.e. egalitarian socialist Indian Constitution. E .S. Shivaswamy lyer in his Revolution of Hindu Women, 1935 ,Edn. p. 64 stated that the ideals of the society as to womanhood includes number merely the relations of husband and wife or mother and children or the other intimate relationship of family life, but also the numberions we find about her capacity, her character, her claim to equality, independence and freedom for developing, her rights to personal ownership and companytrol of property, to the choice of her vocation and other rights as well as duties as member of the society. Status and rights of Hindu woman fluctuated and swung like a pendulum with ups and downs from period to period starting from 4000 B.C. uptodate. However esteem for women remained companystantly high in the society. In Vedic society woman enjoyed equal status economically, socially and culturally with men, vide p. 335,339 and 409 of The Position of Woman in Hindu Civilization, 1955 Edn. by Altakar. He stated that initiation to education upanayanam was performed in Vedic period to the girls as well as boys. Women studied the Vedas, even companyposed Vedic rhymes. They participated in public life freely. Vishvavara, Apala, Lopamudra and Shashayasi are only few examples in the initial Vedic period. Thereafter Ghosha, Maitrai and Gargi occupied price of place for equality in intellectual excellence and equal status with men. Selfishness and male chauvanism made woman to gradually degrade and were given numbervoice even in the settlement of their marriages or so on. She was denied participation in public affairs. Though Yajnavalkya was a proponent to her economic status but ultimately Manu Smriti took firm hold and in Chapter IX Verse 18, Manu stated that woman had numberright to study the Vedas. Thereby, denied the right to education, fundamental human right to acquire knowledge and cultural and intellectual excellence. In Chapter IX Verse 149, he stated that woman must number seek. separation from father, husband or son and bondaged her for ever. In Chapter IX Verse 45, the husband was declared to be one with the wife that the wife can seek numberdivorce but allowed immunity to a male to discard an unwanted wife. All through the ages till Hindu Marriage Act was made a male was allowed polyandry. In Chapter IX Verse 4 16, he stated that a wife, a son and a slave are declared to have numberproperty and if they happened to acquire it would belong to male under whom she is in protection. Thus she was denuded or her right to property or incentive to decent and independent living and made her a dependent only to rare children and bear the burdens. When she becomes a widow, she was declared to have only maintenance and if in possession of her husbands property or companyarcenery, to be a widows estate with reversionery right to the heirs of last male holder. Fidality was a companydition precedent to receive maintenance. In Chapter IX Verse 299, he prescribed companyporeal punishment to a wife who companymits faults, should be beaten with a rope or a split bamboo. If she was murdered it was declared to be an Upapattaka that is a minor offence vide Chapter XI Verse 67. I did number adhere to literal translation but attempted to portray their sweep and deep incursion on social order. Thus laid firm foundation to deny a Hindu female of equality of status. opportunity and dignity of person with numberindependent right to property and made her a subservient, socially, educationally and culturally. Widows were murdered by inhuman Sati and number by bride burnings. Gautam Budha gave her equality of status and opportunity. Efforts of social reformers like Raja Ram Mohan Rai, Kandukuri Veeresalingam and a host of other enlightened made the British Rulers gradually to make statute law, given her right to separate residence and maintenance and a right over property of her husband or joint family for maintenance and a charge by a decree of companyrt. Mahatma Gandhiji, the father of the nation, in Young India on October 17, 1929 had written thus I am uncompromising in the matters of womens rights. In my opinion she should live under numberlegal disability, numbersuffering by men, we should treat the daughters and sons on the footing of perfect equality. Shri Ravindra Nath Tagore, the Noble laureate in his speech in 1913 reprinted in To the Women at page 18 stated that women is the champion of man, gifted with equal mental capacity. She has a right to participate in any minutest activity of men and she has equal right of freedom and liberty with him. The Constitution of India accords socio-economic and political justice, equality of status and of opportunity assuring the dignity of person with stated freedoms. Article 14 guarantees equality. In other words frowns upon discrimination on any ground. Article 15 1 abolishes discrimination and removed disability, liability or restriction on grounds of sex and ensures equality of status. Article 29 2 gives equal right to education. In the earliest decision this Court upheld it in State of Madras v. Srimathi Champakam Dorairajan, 1951 SCR 525. Article 16 1 accords equality of opportunity in public service for an appointment or employment to an office or post under the State and prohibits gender discrimination. Marriage as a disability for appointment to Indian foreign service was declared unconstitutional in C.S. Muthammav. Union of India Ors., 1980 1 SCR 668. Pregnancy as a disqualification to companytinue in public employment was held to be an affront to equality of status, dignity of person and equal opportunity violating Articles 14 and 16 1 in Air India v. Nergesh Meerza Ors., 1982 1 SCR 438. It abhors or is loathe to civility. These are few classic illustrations. Article 15 3 treats women as a class, mitigates the rigour of absolute equality enshrined in Art. 14 and its species Art. 15 1 16 1 and enjoins the State to make any special provision to remedy past injustice and to advance their status, soeioeconmic and political. Article 21 assures protection of life which includes right to livelihood. Article 38 1 obligates the State to promote the welfare of the people by securing social order in which socio-economic and political justice shall inform all the institutions of the national life. Subarticle 2 thereof further enjoins the State to minimise the inequalities in income and to eliminate inequalities ,in status by providing facilities and opportunities to all individuals. Women should have adequate means of livelihood on par with men, Art. 39 a should have equal pay for equal work, Art. 39 d health and strength of working women are number abused. Economic necessity is number a sanctuary to abuse her person or she should number be forced to an unsuited avocation, Art. 39 e State shall provide just and human companyditions of work and maternity relief Art. 42. Article 46 mandates the State to promote with special care the economic and educational companyditions of the weaker sections of the people. It also enjoins to protect them from social injustice and all forms of exploitation. To enliven and alongate this companystitutional goal to render socioeconomic justice, to relieve Hindu female from degradation, disabilities, disadvantages and restrictions under which Hindu females have been languishing over centuries and to integrate them in national and international life, Bharat Ratna Dr. Baba Saheb Ambedkar, the first Law Minister and rounding father of the Constitution drafted Hindu Code Bill. The Hindu, Marriage Act, Adoption and Maintenance Act Minority and Guardianship Act and Succession Act 1956, for short the Act became a part of this package. They ensue equal status and socio-economic justice to Hindu female. In a socialist democracy governed by rule of law, law as a social engineering should bring about transformation in-the social structure. Whenever a socio-economic legislation or the rule or instruments touching the implementation of welfare measures arise for companysideration, this historical evidence furnishes as the foundation and all other relevant material would be kept at the back of the companyrts mind. Section 14 1 of the Act declares that any property, movable or immovable, possessed by a female Hindu shall be held by her as full owner thereof and number as a limited owner irrespective of the time when the acquisition was made, i.e., whether it was before or after the Act. Undoubtedly as companytended by Sri Krishna Murty Iyer, a Hindu male has freedom of testamentary disposition of his property or by companytract and s. 14 1 stand an impediment in his way. Freedom of companytract would yield place to public policy envisaged above. Its effect must be tested on the envil of socioeconomic justice, equality of status and to oversee whether it would subserve the companystitutional animation or frustrates. Art. 15 3 relieves from the rigour of Art. 15 1 and charges the State to make special provision to accord to-women socioeconomic equality. The companyrt would, therefore, endeavour to find whether terms of the disposition or clauses in the instruments, will etc enumerated in s. 14 would permeate the aforestated companystitutional companyscience to relieve the Hindu female from the Shastric bondage of limited estate. Both sub-sections 1 and 2 of s. 14 attract the companyferment of restricted estate had by a Hindu female under an instrument, i.e. gift, will, decree or order of a Civil Court or an award. Section 14 and the impugned document must be read harmoniously as an integral scheme. The disability attached to Hindu female by Shastric Law was removed by statutory provisons in Hindu Succession Act. Section 14 1 thereof was thought to be a tool to remove disabilities or restrictions imposed by Customary or Shastric Law on Hindu women. s. 14 1 declares in unequivocal terms that the property whether movable or immovable held by a Hindu female acquired either before or after the Act shall be her absolute property, abolishing the limited estate known to Shastric law. Hindu women as a class are declared as class I heirs entitling to intestate succession to a 0Hindu Male. This Court in Pratap Singh v. Union of India, 1985 Suppl. 2 SCR 773 held that s. 14 of the Act does number discriminate on grounds of sex and is intra vires of Art. 15 3 . The preferential treatment accorded, thereby, was held to be number .violative of Arts. 14 and 15 1 . Sub-section 2 of s. 14 of the Act attempts to denude the object of sub-section 1 and emasculates its efficacy. It should, therefore, be read as an exception or a proviso to sub-section 1 of s. 14. The interpretation of the proviso or an exception should number be to allow. to eat away the vital veins of full ownership accorded by sub-section 1 of s. 14 when this Court upheld the validity of s. 14 1 on the envil of Art 15 3 what should be the message thus intended to companyvey? It would mean that the companyrt would endeavour to give full effect tO legislative and companystitutional vision of socio-economic equality to female citizen by granting full ownership of property to a Hindu female. As a fact Art. 15 3 as a fore runner to companymon companye does animate to make law to accord socioeconomic equality to every female citizen of India, irrespective of religion, race cast or region. In Seth Badri Preasad v. Smt. Kanso Devi, .1969 2 SCC 586 in an injunction suit against the respondent, the appellant ,contended that the respondent was given limited estate in a decree passed in an award and that, therefore, s. 14 2 applies. Negating that companytention, this companyrt held that sub-sec. 2 of s. 14 is more in the nature of a proviso or an exception to sub-sec. 1 . It can companye into operation only if the acquisition is in any of the methods indicated in sUb sec. 2 .without there being any pre-existing right in the female Hindu who is in possession of the property. I Section 14 1 removes the disability of the woman. It was accordingly held that though she came into possession by virtue of decree passed in an award as limited estate, she acquired the absolute ownership under sub-sec. 1 of s. 14. Section 14 was subject of critical companysideration in V. Tulasamma v.V. Sesha Reddy dead by L.Rs., 1977 3 SCR 261 and its ratio has become a Tulsidalam to Hindu. women as locus classicus giving forward thrust. to companystitutional goal according full ownership in the property, movable or immovable,. held by her as full owner thereof redeemed her from the shackles of women estate known to Shastric law. Fazal Ali, J. undertook extensive survey into sources of Hindu Law and foundthat Hindu widows right to maintenance is a personal obligation of the husband and he has a duty to-maintain her even if he has numberproperty. Her right to maintenance would become an-eqUitable charge on her husbands property though numbercharge was created by a decree of civil companyrt as jus ad rem, i.e. right over property though number right to property jus in rem and any person who succeeds to the property carries with it a legal obligation to maintain the wife from her husbands estate. Only .bona fide purchaser for value without numberice alone was relieved of this Obligation The right to maintenance is a pre-existing right preceding Hindu Womens Right to Property and Separate Residence Act, 1946. Section 14 1 recognises her preexisting right. Any property acquired by Hindu female by inheritence or device or at a partition or. in lieu of maintenance or arrears of maintenance or by gift from any person Whether relative or number, before, at or after her marriage, or by her own skill or,exertion, or by purchase or by prescription or in any other manner whatsoever, and also suCh property held by her as stridhana immediately before the companymencement of this Act, movable or immovable property shall be held by her as full owner thereto and number as a limited owner. Subsection 2 thereto shall be companystrued as an exception or a proviso which cannot be read to ,emasculate the purpose enunciated under sub-section 1 . Therefore, the property held by her or property given to her at a partition, or under a companypromise decree, gift, or in lieu of maintenance .and held by her,on the date when the ACt.came into force, namely, June 17, 1956 shall be her absolute property as full owner. Bhagwati J. as he then was speaking for himself and Gupta, J. while pointing out the faulty drafting of s. 14, held that s. 14 1 seeks to do away with the traditional limitation of her power of disposition which were regarded under the Hindu law as inherent all her estate. The words possessed of means as the state of owning or having in ones hand or power which need number be actual or physical possession or personal occupation of the property by the Hindu female. It may be actual or companystructive or in any form recognised by law. Sub-section 1 of s. 14cannot be interpreted in a manner which would deprive the Hindu woman of the protection sought to be given to her by subsection 1 . The social purpose of the law-would be frustrated and reformist zeal underlying the statutory provison would be chilled. It was number the intention of the legislature in enacting sub-section 2 which must be companystrued as an exception or a proviso to sub-section 1 . No provision should be companystrued in isolation and be read in the companytext so as to . make a companysistent enactment of the whole statute. Sub-section 2 must be read in the companytext of sub-section 1 of s. 14 and if so read sub-section 2 must be companyfined to cases where the Hindu female acquires the property for the first time as a grant without any preexisting right to the property under a will or by way of gift. or in-any other instruments or a decree or order of the civil companyrt or an award, the terms of-which prescribe a restricted estate in the property. Subsection 2 must be read as an exception or proviso to sub-section 1 so as to leave aS large a scope for operation as possible to sub-section 1 of s. 14. It was, therefore, held that the property given to Tulasmma in a companypromise decree in lieu of her maintenance with restricted estate known as widows estate in Hindu law was enlarged and she became an absolute owner under the Act. She had the right to alienate the property in favour of the others. An attempt to reopen the ratio was thwarted by this Court in Bai Vajia dead by L.Rs, v. Thakorbhai Chelabhai .Ors., 1979 3 SCR 291 while reaffirming the ratio of Tulasammas case as companyrect law, this Court further held that limited ownership is sine quo number for the applicability of sub-section 1 of s. 14 of the Act. When a widow holds a property for her enjoyment, as long as she lives, numberbody is entitled to deprive her or to deal with the property in any manner, to her detriment. The property is for the time being beneficially Vested in her and she has the occupation, companytrol and usufruct of it to the exclusion of all others. SUch relationship to property falls squarely within the meaning of expression of limited owner as under S. 14 1 of the Act. In that companytext approved the dictum of Bhagwati, J. that s. 14 1 aimed to achieve a social purpose. to bring about change in the social and economic position of women in Hindu Society, It was a step to accord equality of sex, elevating women from subservient position in the economic field to higher pedestal with full ownership untrammelled by artificial limitation of Womens estate created by male dominence to subjugate her. . In Jagannathan Pillai v. Kunithapadam Pillai Ors., 1987 2 SCR 1070 this Court held that if, the question arises as to what was the .nature of the widows interest in the property and a challenge was made during her life time or after her death, all that has to be shown by the companycerned Hindu female was that she had acquired the property and that She was possessed of the property at the point of time when her title was called into question. The question then was whether she became full owner? In that case the widow as a limited owner sold the property but later on repurchased the self same property and was in possession at the date when the question of holding the property and the nature of the right held by her had arisen. It was held that she was in possession as limited owner and after the Act she became full owner, and number limited owner of the property. It was further held that the legislative intent is abundantly loud and clear. To erase the injustice .and remove the legal shackles by abolishing the companycept of limited estate, or the womens or widows estate once and for all. To obviate hair-splitting, the legislature has made it abundantly clear that whatever be the property possessed by a Hindu female, it will be, Of her absolute ownership and number of limited ownership, numberwithstanding the position obtaining under the traditional Hindu law. In Gulwant Kaur Anr. v. Mohinder Singh Anr., 1987 3 SCR 576 companystruing a letter written by the husband giving the property for wifes maintenance, this companyrt laid that s. 14 is aimed at removing restrictions or limitations on the right of a female Hindu to enjoy, as a full owner, property possessed by her so long as her possession is traceable to a lawful origin, that is to say, if she has a vestige of a title. It makes numberdifference whether the property was acquired by inheritance ordevise, etc. The right to maintenance is number a grant made for the first time without any pre-existing right. Even if the instruments are silent as to the nature of the interest given to the widow in the property and did number, in so many terms, prescribe that she has a limited interestin the property, she would have numbermore than a limited interest in the property under the Hindu law as it stoodprior to the enactment of the Act. Hence a provision in the instrument prescribing that she would have only a limited interest in the property, would be merely recording the true legal position and would number attract the applicability of sub-sec. 2 , but would be governed by sub-sec. 1 of s. 14. The companyclusion was, therefore, held inescapable that where the property is allotted to a widow under an instrument, decree, etc.for her maintenance, subsec. 2 of s. 14 had numberapplication. In Maharaja Pillai Lakshmi Ammal v. Maharaja Pillai Thilanayakom Pillai Anr., 19881 1 SCR 780 under a partition deed, limited . estate in lieu of maintenance was created and this companyrt held that the deed or any other arrangement by which the husband gives property to his wife for maintenance need number specifically say thatit was given in lieu of maintenance. The right to maintenance is a personal obligation of the husband. If the wife is put in possession of the property with the right to take the income for her maintenance, it must be presumed that the property was given to her in lieu of maintenance attracting s. 14 I and the limited ownership ripened into full ownership. Accordingly it was held that s. 14 1 attracted to the facts in that case. In Jaswant Kaur v. MajOr Harpal Singh, 1989 3 SCC 572 under a will executed by the husband the widow was given a life estate which was held to be enlarged into an absolute estate attracting s. 14 1 ,but number s. 14 2 as Hindu female acquired property under the instrument. Her-title was traceable to her antecedent over her widows estate by gift deed of 1954 to the appellant, one of her daughters. The widow died in 1968.The appellant filed a suit for injunction, based on gift deed, against the respondent, another Sister claiming exclusive right, title and interest in the property and also pleaded adverse possession. The respondent filed a cross suit for partition into two shares and claimed half share pleading that their mother was number in possession of property on the date when the Act came into force. The appellant. acquired only limited ownership of their mother and on her death as a reversioner of her father she was entitled to partition. The High Court ultimately upheld the respondents companytention and held that the widow did number acquire absolute estate under s. 14 1 . Being a limited owner, what was companyveyed by her to the appellant was only a limited estate and the appellant would number get the benefit of full ownership as she herself was number the limited owner under-sec. 14 1 . On demise of the .mother as reversioner, the respondent was entitled to file the. suit for partition. The appellant did number acquire title by adverse possession as she was a companyowner and there .was numberright. Therefore, subsec. 2 of s. 14 would number attract. Munshi Singh v. Smt. Sohan Bai dead by L.Rs., 1989 2 SCR. 1012 was a case where limited owner gifted away the property, and was parted with possession and the plea of repurchase was negatived by all the companyrts. So this companyrt held that s. 14 1 does number apply. In Pearey Lal v. Rameshwar Das, 1963 Suppl. 2 SCR 834 in companystruing a will vis-a-vis ss. 75, 82, 86 of the Indian Succession Act, 1925 this Court held that the limited estate is number enlarged into an absolute estate. In Karme v. Amru, AIR 1971 SC 745 the attention of this Court to s. 14 1 was number drawn number had an occasion to angulate in this perspective. Therefore, the ratio therein is of little assistance to the appellant. In Kalawatibai v. Soiryabai Ors., 1991 3 SCC 410 the mother of the parties, a Hindu widow gifted adverse possession as against the other companyowner unless it was so asserted and acquiesced by the respondent. Therefore, the decree for partition was upheld and the suit for injunction was dismissed. The ratio therein does number assist the appellant. Thus I hold that the Act revolutionised the status of a Hindu female used s. 14 1 as a tool to undo past injustice to elevate her to equal status with dignity of person on par with man extinguished pre-existing limitation of womans estate, or widows estate known to Shastric law removed all the fetters to blossom the same into full Ownership. The discrimination sufferred by Hindu female under Shastric law was exterminated by legislative fiat. The social change thus envisaged must be endeavoured to be given full vigour, thrust and efficacy. Section 14 1 enlarges the restricted estate into full ownership when the Hindu female has pre-existing right to maintenance etc. Sub-sec. 2 operates when the grant was made for.the first time Under the document with numberpre-existing right. Sub-sec- 2 , therefore, must be ., read as an exception or a proviso to sub-sec. 1 . Both the sub-sections read with the explanation to be pragmaticably companysidered as a companystituent integral scheme. The Court would sit in the armed chair of the testator, or its maker and summon to its aid the attending circumstances to execute the instrument the relationship of the parties and to see whether the Hindu female acquired the property with vestige of pre-existing right and the will,-gift deed, order, decree or an award of the civil companyrt or in any of the forms known to law was executed in recognition thereof or entitled under the existing law. If the finding is positive her limited estate, though created with restrictive companyenants in instrument or an omission to expressly so mentioned in full particulars thereof in the instrument in that regard are of little companysequence. Her limited estate gets blossomed into full ownership under-sec. 14 1 with a right to bequeath, gift over, alienation or to deal in any manner. recognised by law. If on the other hand the Hindu female acquires for the first time the tittle therein as a grant with restrictive estate under the instrument with numberpre-existing title or right, sub-section 2 of s. 14 gets attracted and the restrictive. companyenants. companytained in the instrument would bind her. She remains-to be a limited owner in terms thereof. The subsequent alienee or transferee acquires numberhigher right thereunder than the legatee etc. The reversioner to the last male holder is number bound by such transfer and is entitled to succeed the estate, on her demise, in terms of the instrument. It is too late in the day to take retrograde step to reopen Tulasammas ratio. In Civil Appeal No. 630 of 1981 of Thota Madhav Rao, Sri Narsimhalu, his learned companynsel companytended that Thota Manikyamma, the respondent, having companye into possession and in enjoyment of the lands bequeathed under a will with a vested reminder in the appellant, her rights are circumscribed. by the restrictions companytained in the will and s. 14 1 does number apply. He also companytended that by application of s. 14 1 to the instruments executed anterior to the Act amounts to giving retrospective operation of s. 14 1 . We find numbersubstance in either companytention. It is settled law that a legatee under a testamentary disposition is bound by the restrictive companyvenants companytained therein. But distinction should be maintained between an ordinary legatee and a legatee Hindu female companypled with vistage of pre-existing title to the property but with a limited estate known to Shastric law as reflected in the impugned deed etc. Undoubtedly s. 14 is number retroactive in its operation. Devolution of the property under the will would take effect after the demise of the testator and the legatee would be bound by the terms of gift over etc. The .stranger legatee cannot take shelter under subsequent change of law to enlarge the operation of restrictive companyenant to claim absolute ownership in the property bequeathed to her. But socio-economic amelioration under the Act engulfs an instrument under the sweep of s. 14 1 thereof, it extinguishes the pre-existing limited estate or restrictive companydition and companyfer absolute and full ownership of the property possessed by a Hindu female as on the date when the Act had companye into force, namely, June 17, 1956. The companyrts are number giving retrospective operation to s. 14 1 or to the instrument. The companyrts only would be applying the law to the facts round as on the date when the question arose to find whether legatee has pre-existing vistage of title under law and the nature of possession of the property held by her and whether the legatee would get the benefit of s. 14 1 of the Act. There need be numberexpress recital even in the will of the enjoyment of the property devised under the will in lieu of maintenance as a limited owner for her life. Even if so mentioned, it would be a reflection or restatement of the law existing as in 1932 when the will was executed. The respondent, admittedly, being a widow of the testator who. under Shastric law, was obligated to provide maintenance to his wife, and it being personal obligation, the property bequeathed was in lieu of maintenance for her life. She was in enjoyment of the property and the beneficial interest therein stood vested in her. As per existing law as in 1932 the widow as a legatee was entitled to widows estate and she remained in possession on the date of the Act came into force and was in enjoyment of the income derived therefrom for her life. No one had a right to interdict it. The restrictive companyenant, therefore, does number stand an impediment to s. 14 1 to have full play to extinguish the same and enlarge the limited estate of widow into an absolute ownership. The restrictions companytained in the will, though falls both under sub-sec. 2 as well as sub-sec. 1 , of s. 14, the right to maintenance being a pre-existing right over property red ad rem s. 14 1 would apply. The testamentary succession with a restrictive companyditions in the will was obliterated. She became an absolute owner on or after June 17, 1956. Accordingly I have numberhesitation to hold that, though the will created a restrictive companyenant, s. 14 2 does number apply. Section 14 1 enlarged the widows limited estate held by Manikyamma into an absolute ownership as full owner with a right to disposition by testamentary instrument or otherwise. As regards the claim in S.L.P. No. 2113 of 1980 is companycerned, admittedly the decree was granted with restrictive companyenant to remain in possession of a portion of the house and enjoyment for life and by operation of the ratio in Tulasiamrnas case the restrictive companyenant has enlarged into absolute estate. The appeal and special leave petitions are accordingly dismissed with companyts.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 128 of 1965. Appeal from the judgment and decree dated December 12, 1963 of the Judicial Commissioners companyrt, Himachal Pradesh, in Civil Writ Petition No. 19 of 1963. Vikram Chand Mahajan and R.N. Sachthey, for the appellants. Rameshwar Nath and Mahinder Narain, for respondents. The Judgment of the Court was delivered by Sikri, J. This appeal by certificate granted by the Judicial Commissioner, Himachal Pradesh, is directed against his judgment allowing a petition filed by the respondents and issuing a writ of mandamus directing the Divisional Forest Officer. Sarahan Forest Division, and the Chief Conservator of Forests, Himachal Pradesh --hereinafter referred to as the appellants--to issue or get issued the necessary permission for felling the trees and the transit pass. in respect of certain khasra numbers. In order to appreciate. the points raised by the learned companynsel for the appellants, it is necessary to set out the relevant facts. Land measuring 27 bighas and 16 biswas companyprised in khasra Nos. 452/1,453, 453/1, 40, 100 and 440 and situated in village Kadiali, Tehsil Theog, District Mahasu, belonged to Government and was under the tenancy of Moti Ram. He filed an application under s. 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953--hereinafter referred to as the Act--and was granted proprietary rights in the land by the Compensation Officer by order dated August 30, 1957. Provisional companypensation was assessed at Rs. 62.56 nP. The Compensation Officer held that as the applicant is a cultivating tenant over the aforesaid land he is entitled to acquire right, title and interest of the said land-owner on payment of Rs. 62.56 as companypensation which should be deposited. On September 9, 1957, a certificate of ownership was granted to Moti Ram on his depositing Rs. 62.56. Moti Ram died and the land was mutated in favour of his wife Smt. Besroo and his daughter Smt. Rupi. The respondents applied for permission to sell the trees on their land, and the Divisional Forest Officer by order dated July 18, 1958, permitted them to sell the trees from their land on certain companyditions. On November 15, 1958, the respondents deposited Rs. 1267.13 nP as government fee, but the Divisional Forest Officer failed to give clear orders for felling the trees and taking out the companyverted timber from the said and. The Chief Conservator Officer, by letter dated July 12, 1961, informed the respondents that the matter was being inquired from the Conservator of Forests, Simla Circle. Thereupon, number hearing anything further, the respondents flied a petition under Art. 226 of the Constitution. It was urged before the Judicial Commissioner, on behalf of the Divisional Forest Officer that the respondents had number interest in the trees standing on their land as. the trees were number land as defined in s. 2 5 of the Act, and that the Compensation Officer was number companypetent to grant, and, in fact, did number grant proprietary rights in the trees to the deceased Moti Ram. The learned Judicial Commissioner, following Vijay Kumari Thakur v. H. P. Administration 1 held that the appellants were estopped from companytending that the respondents had numberinterest in the trees. He further held that the respondents were granted permission to sell the trees standing on their land and they had, in fact, entered into an agreement to sell to a third party, and they had deposited Rs. 1267.13 nP and had thus acted to their detriment. As stated already, the learned Judicial Commissioner allowed the petition and issued a writ of mandamus. With certificate granted by the Judicial Commissioner the appellants have. flied this appeal. The learned companynsel for the appellants companytends that under s. 11 of the Act the trees did number vest in the deceased Moti Ram. He says that what vested under s. 11 of the Act was land, and land is defined in s. 2 5 as follows S. 2 3 .--Land means land which is number occupied as the site of any building in a town or village and is occupied or has. been let for agricultural purposes or for purposes subservient to agriculture, or for pasture, and includes--- a the sites of buildings and other structures on such land. b orchards c ghasnies He relies on a number of decisions of the Punjab Chief Court and the Lahore High Court interpreting a similar definition existing in the Punjab Alienation of Land Act XIII of 1900 . In our opinion those cases are distinguishable inasmuch as they deal with the question whether trees companyld be sold or assigned under the Punjab Alienation of Land Act without infringing the prohibitions companytained in that Act forbidding sale of land by agriculturists in favour of number-agriculturists. For instance, in Achhru Mal v. Maula Bakhsh 2 , under a deed of sale the vendee was entitled to cut and remove the trees within a period of ten years, and the plaintiff brought a suit asking for a perpetual injunction A.I.R. 1961 H. P. 32. 2 1924 5 Lah. 385. to issue to the defendants-respondents to restrain them from preventing him from cutting and removing certain trees from the. land belonging to the defendants-respondents- The lower companyrts held that the trees growing on agricultural land were land within the meaning of the expression as defined in s. 2 3 of the Punjab Alienation of Land Act, and, therefore, their sale to the plaintiff was unlawful having regard to the provisions of that Act. The Lahore High Court held that the sale did number infringe the provisions of that Act because the sale of trees was number a sale of land. The High Court was number companycerned with the question whether on a transfer of land trees standing on it passed to the transferee or number. In Nasib Singh v. Amin Chand 1 it was held that the suit for possession of certain mango, shisham and jaman trees was number a suit between a landlord and his tenant under the Punjab Tenancy Act and companysequently the Civil Court was companypetent to try the suit. There can. be numberdoubt that trees are capable of being transferred apart from land, and if a person transfers trees or gives a right to a person to cut trees and remove them it cannot be said that he has transferred land. But we are companycerned with a different question and the question is whether under s. 11 of the Act trees are included within the expression right, title and interest of the land-owner in the land of the tenancy. It seems to us that this expression right, title and interest of the land-owner in the land is wide enough to include trees standing on the land. It is clear that under s. 8 of the Transfer of Property Act, unless a different intention is expressed or implied, transfer of land would include trees standing on it. It seems to us that we should companystrue s. 11 in the same manner. The learned companynsel for the appellants companytends that the trees standing on the land transferred to Moti Ram under s. 11 of the Act are worth about Rs. 76,000, and it companyld number have been the intention to transfer Rs. 76,000 worth of trees for Rs. 62/56. He says. that the trees are really forest trees and it was never the intention of the legislature to vest forest trees in the tenants acquiring land under s. 11 of the Act. But numbersuch companytention seems to have been raised in the written statement filed by the appellants.It might have been different if it had been proved that the portion of the area transferred to Moti Ram was a natural forest.see Kaju Mal v. Salig Ram 2 . The learned companynsel referring to s. 84 of the Act points out that one of the companysequences of vesting of land in the State Government under s. 83 is that trees expressly vest in the State. He says that if it was the intention to vest trees in the tenant acquiring land A.I.R. 1942 Lah. 152 2 1919 Punj. Rec. 237. under s. 11 of the Act, it would have been similarly so expressed. We are unable to accede to this companytention. Section 84 a i reads as follows When a numberification under section 83 has been published in the Gazette numberwithstanding anything companytained in any companytract or document or in any other law for the time being in force and save as otherwise provided in this Act, the companysequences as hereinafter setforth shall, from the beginning of the date of vesting ensue in respect of the land to which the numberification applies, namely -- a all rights, title and interest of all the landownersin every such land including cultivable or barren land, ghasnis, charands, trees, wells, tanks, ponds, water channels, ferries, pathways, hats, bazars and melas If the companytention of the learned companynsel were. companyrect, even cultivable land which is expressly mentioned in s. 84 a i would number vest in the tenant under s. 11 of the Act. Section 11 is drafted very simply and under sub-s. 6 the tenant becomes the owner of the land companyprised in the tenancy on and from the date of grant of the certificate, and it is expressly provided that the right, title and interest of the landowner in the said land shall determine. In the companytext the word owner is very companyprehensive indeed, and it implies that all rights, title and interest of the landowner pass to the tenant. Further, it seems to. us that it would lead to utter companyfusion if the companytention of the learned companynsel is accepted. There would be interminable disputes as to the rights of the erstwhile landowners to go on the lands of erstwhile tenants and cut trees or take the fruit. Moreover, under s. 15 of the Act we would, following the same reasoning, have to hold that the trees on the land of the landowner did number vest in the State. This companyld hardly have been the intention. For the aforesaid reasons we must uphold the judgment of the Judicial Commissioner, although for different reasons. In the result the appeal fails and is dismissed with companyts.

Heard learned companynsel for the parties. Special leave granted. This appeal arises against the order of the Orissa Administrative Tribunal, Bhubaneswar in OA No. 858 of 1989 dated June 22, 1992. The respondent joined the service as a Cook in CDMO Cuttack on February 9, 1962. Thereafter he was promoted as Disinfector and Senior Helper. He attained the age of superannuation on May 31, 1989. Before his retirement when the numberice of retirement was given, he filed an application on April 24, 1989 stating that his companyrect date of birth is June 27, 1934 and therefore he cannot be retired. Since his representation was number accepted, he filed OA No. 858 of 1989 before the tribunal. The tribunal observed that his companyrect date of birth is June 27, 1934 and number May 18, 1929 as entered in the service register and therefore the respondent is entitled to be in service till the age of 60 years. Thus this appeal by special leave. Rule 65 of the Orissa General Financial Rules provides thus Every person on entering government service shall declare his her date of birth which shall number differ from any such declaration expressed or implied for any public purpose before entering service. The date of birth shall be supported by documentary evidence such as Matriculation Certificate, Municipal Birth Certificate and entered in his her service record. No alteration of the date of birth of government servant shall be made except in case of clerical error without prior approval of the State Government. An application for effecting a change in the date of birth shall be summarily rejected if a filed after five years of entry into government service, b the change would so lower the applicants age that he she would have been ineligible to appear in any of the academic or recruitment examinations in which he she had appeared or for companysideration for appointment to any service or post under the Government. A reading of these rules clearly shows that every person on entering government service shall declare his her date of birth which shall number differ from any such declaration expressed or implied for any public purpose before entering service. The date of birth shall be supported by documentary evidence such as Matriculation Certificate, Municipal Birth Certificate and entered in his her service record. No alteration of the date of birth of government servant shall be made except in case of clerical error without prior approval of the State Government. An application for effecting a change in the date of birth shall be summarily rejected if filed after five years of entry into government service, etc. From what has been stated in paragraph 7 of the order of the tribunal, it would appear that the respondent became aware of the entry in the service register in the year 1970. Admittedly, numberaction has been taken within five years thereafter. Under those circumstances, Rule 65 as referred to above is clear that his claim for alteration shall be summarily rejected without any further inquiry. Now the respondent sought to place reliance on School Certificate in which the date of birth was entered as June 27, 1934. Obviously, he must have had the knowledge of the School Certificate but he failed to produce it when he entered into the service or had knowledge of the entry made in the service register as May 18, 1929 as early as 1970. Under these circumstances, the tribunal companymitted a manifest error in companyrecting the date of birth. Rule 65 is mandatory and the tribunal had number given due companysideration to it. The appeal is allowed. No companyts. DHAN SING V. NAGINA Kuldip Singh, J. The Judgment of the Court was delivered by KULDIP SINGH, J.- This appeal is a sequel to a suit for possession by redemption of agricultural land measuring 268 kanals 6 marlas, situated at From the Judgment and Order dated November 26, 1985 of the Punjab and Haryana High Court in Regular Second Appeal No. 5 of 1977 Village Haibatpur, Tahsil and District Kamal Haryana , instituted by the appellant-plaintiff in the year 1970. The suit was decreed by the trial companyrt. The lower appellate companyrt, however, set aside the judgment of the trial companyrt and dismissed the suit. The High Court, in second appeal, declined to interfere with the findings of the lower appellate companyrt. This appeal by way of special leave is by Dhan Singh appellant-plaintiff. One Surjit Singh was the owner of land in dispute.He sold 122 bighas 15 biswas including the land in dispute of agricultural land, a house and a bara to Nagina and Sher Singh, respondents-defendants for a sum of Rs 2500 on July 9, 1945. Dhan Singh, a companylateral of Surjit Singh, challenged the sale by way of a reversionary-suit. In the said litigation the High Court in second appeal by its judgment dated July 17, 1951 came to the companyclusion that the part of the land sold by Surjit Singh was ancestral land and in respect of the said land there was numberevidence to show that it was an act of good management. The High Court in its judgment dated July 17, 1951 held as under As half of the companysideration should be held to be for ancestral land which would companye to Rs 590 I, therefore, hold that the suit should be dismissed in regard to one-half of the land and with regard to the other half, the sale should be companyverted into a mortgage, in that the plaintiff will be entitled to get the land after the death of alienee on payment of Rs 590. It is obvious from the above-quoted judgment of the High Court that the part of the sale was held to be number for legal necessity and, as such, to safeguard the interest of reversioners, the same was companyverted into mortgage and the right of the vendees to get the amount of Rs 590 back was preserved. What was done by the High Court was most equitable under the circumstances. Dhan Singh instituted the present suit for possession by way of redemption on the ground that Surjit Singh was number being heard of for the last more than 7 years and, as such, was presumed to be dead. He claimed redemption and possession on the basis of the High Court judgment dated July 17, 1951 quoted above . Although the suit instituted by Dhan Singh was for possession by way of redemption of the land in dispute but the lower appellate companyrt and the High Court came to the companyclusion that the suit was a simple suit for possession. The companytention of the appellant that the suit was for redemption of mortgage and, as such, the limitation for filing the suit was 30 years, was rejected. The appellant was number-suited on the short ground that the suit filed by him being a suit for simple possession, it was barred by limitation. The lower appellate companyrt gave its findings on the following reasoning The learned lower companyrt, as well as the learned companynsel for the parties, are in error in believing that technically there was a mortgage and that a suit for redemption was maintainable. I hold that the present suit was one for possession on the basis of a declaratory decree obtained by the plaintiff under the customary law and I hold further that for the purpose of limitation Article 2 of the Schedule to the Punjab Limitation Custom Act will apply to the present case. According to Article 2 b the period of limitation for bringing a suit for possession is three years, if a declaratory decree has already been obtained and the period begins to run from the date on which the right to sue accrues or the date on which the declaratory decree is obtained, whichever is later. It is undisputed that the right to sue in the present case will arise on the death of the vendor because it is the death of the vendor which companyld give to the plaintiff a right to bring the suit for possession based upon the declaratory decree which had been granted in his favour by the Honble High Court. Therefore, the question arises as to when the death of the vendor took place and whether taken from that date the suit was brought within three years. The lower appellate companyrt further held as under Since in this case it would be presumed that the vendor was dead is the year 1962-63 which presumption has to be drawn as per evidence led by the plaintiff himself, it is clear that the suit was number brought within three years of that period and it was clearly time barred. I have already held above that by numberstretch of imagination this suit can be treated as a suit for redeeming the property. This suit cannot be called legally as a suit for redemption of the property. It is a suit plainly for possession of the land subject to the companydition that the plaintiff will have to pay Rs 590 to the vendees as has been held by the Honble High Court in its judgment Exbt. P-3. The High Court upheld the findings of the lower appellate companyrt in following words Lastly, the learned companynsel for the appellant argued that in the earlier litigation the High Court had companyverted the sale effected by Surjit Singh into a mortgage on July 17, 1951 and the present suit for redemption of that mortgage is within limitation and 30 years period is prescribed under the Limitation Act, 1963 for such suits. His argument was that Surjit Singh would be presumed to be dead in view of Section 108 of the Evidence Act as he was number heard of for the last 15 or 16 years prior to the filing of the suit by the persons who were expected to know about him and the plaintiff being his heir has a right to redeem. am of the opinion that argument has numberforce. This Court in the earlier litigation companyverted the sale into a mortgage in the numberional sense i.e. Dhan Singh plaintiff was allowed to get the property on payment of Rs 590 after the death of the alienor. Though the present suit has been framed as if it is a suit for redemption but actually it will be deemed to be a suit by the reversioner for possession of the land which had been alienated and which alienation has been successfully challenged under custom. The period of limitation for such suits will be governed by Punjab Limitation Custom Act. The short question for our companysideration is whether the suit filed by the appellant was a suit for redemption or a suit for possession simpliciter. Mr Vikram Mahajan, learned companynsel for the appellant, vehemently companytended that the High Court by its judgment dated July 17, 1951 specifically companyverted the sale into a mortgage. According to him even if it is assumed that the said companyversion was in the numberional sense, a litigant cannot be penalised for understanding the simple language of the judgment and acting upon the same. We see companysiderable force in the companytention of the teamed companynsel. We may, at this stage, refer to the reasoning of the trial companyrt which is in the following words From this judgment, one can clearly gather that half of the sale was companyverted into the mortgage. The learned companynsel for the defendant has urged that such a companyversion of sale into the mortgage is number permissible and such a judgment is number binding upon the defendants. The argument is number tenable because a perusal of the judgment would indicate that the sale number held entirely to have been made for legal necessity and, therefore, to safeguard the interest of the reversioners, the sale to the extent of half was companyverted into the mortgage and the rights of the vendees to get the amount of Rs 590 back were preserved in lieu of the return of the property which was the most equitable relief. In these circumstances, there is a further followed authority which is Hardev Singh v. Dr Sharan Singh wherein it was held that where the sale was number for legal necessity, it would be companyverted to a mortgage. So, the mortgage stands as alleged by virtue of the judgment referred to above and I uphold the companytention of the learned companynsel for the plaintiff that the order of the Honble High Court amounts to a creation of a mortgage. We are of the view that the respondents being parties to the earlier suit the decision of the High Court in the said suit was binding on them. It was number open to the appellate companyrt and the High Court in the subsequent suit to proceed on the basis that the sale of half of the property was number companyverted into mortgage as a result of the earlier judgment of the High Court. We, therefore, set aside the findings of the lower appellate companyrt and of the High Court on the said issue. On the question of relief, we are of the view that in the facts and circumstances of this case, the ends of justice would be met if the appellant is permitted to take possession of only half of the land in dispute from the respondents. On September 29, 1993, this Court passed the following order The appeal is adjourned to October 12, 1993, to enable the parties to probe the possibility of settlement. Thereafter, the arguments were heard on October 27, 1993, and this Court passed the following order 1 AIR 1952 Pep 87 We have heard arguments from both sides. Mr C. Mahajan, learned senior companynsel appearing for the appellant states that his offer of leaving half the land to the respondents is still open. Mr Kirpal Singh, learned companynsel appearing for the respondents has number been able to have any response from his clients. We give him more time to companytact his clients. List the matter in Chambers on November 18, 1993 at 1.40 p.m. Even on November 18, 1993, when we heard the arguments finally, the learned companynsel for the respondents was unable to companytact his clients. Keeping in view the fact that the respondents are in possession of the land for the last about 50 years and also the fair companycession made by Mr V.C. Mahajan, under instructions from his client, we direct that the appellant shall be entitled to possession from the respondents of half of the land in dispute. Any companystruction on the land or any wells etc.

This is an astonishing and more shocking case. The petitioner who was, admittedly, to retire on May 31, 1991 remained in office till May 31, 1994 as if he was number to retire from service, enjoying all the benefit of service. This special leave petition arises from the order of the Central Administrative Tribunal, Patna Bench, made on November 26, 1996 in OA No. 652/95. The petitioner has joined the service in Tele Communications Department. Admittedly, his date of birth is May 13, 1933. On attaining the age of superannuation, he was to retire on May 31, 1991. Instead, he remained in service till May 31, 1994. When action was taken to recover the amounts paid to him for the period beyond the date he was to retire viz., May 31, 1991 and to which he was number entitled, he filed OA in the Tribunal and the same has been dismissed. Thus, this special leave petition. The learned companynsel for the petitioner companytends that since the petitioner has worked during the period, he is entitled to the payment of the pay and allowances from 1.6.1991 to 26.6.1994 and that the is also entitled to the payment of Provisional Pension, Death-cum-retirement gratuity, leave encashment companymutation of pension amount, GPF money and the amount deposit under CGHS on the plea that he retired from service on May 31, 1994. We are aghast to numberice the boldness with which it is claimed that he entitled to all the benefits with effect from the abovesaid date when admittedly he was to retire on May 31, 1991. It would be an obvious case of absolute irresponsibility on the part of the officer companycerned in the Establishment in the companycerned section for number taking any action to have the petitioner retired from service on his attaining superannuation. It is true that the petitioner worked during that period, but when he is number to companytinue to be in service as per law, he has numberright to claim the salary etc. It is number the case that he was re-employed in the public interest, after attaining superannuation. Under these circumstances, we do number find any illegality in the action taken by the authorities in refusing to grant the benefits. It is then companytended that the petitioner would have companyveniently secured gainful employment elsewhere and having worked, he cannot be denied of the legitimate salary to which he is entitled to .

K. MATHUR, J. Leave granted. This appeal is directed against the order dated 6.12.2006 passed by the Division Bench of the Allahabad High Court whereby the High Court affirmed the numberification dated 15.6.2006 issued under Section 4 1 read with Section 17 1 and 17 4 of the Land Acquisition Act hereinafter referred to as the Act and the numberification dated 19.10.2006 issued under Section 6 of the Act. A preliminary objection was raised before the High Court on behalf of the respondent- Bulandshahr-Khurja Development Authority, Bulandshahr that the writ petition was number maintainable at the instance of the appellants and secondly it was companytended that the writ petition was bereft of basic pleadings with regard to the challenge of dispensing with Section 5-A of the Act. The first question which was agitated before the High Court was that dispensing with requirement of Section 5-A of the Act was arbitrary. The Division Bench of the High Court after referring to companyple of decisions of this Court took the view that the urgency shown for invoking Section 5-A was justified as it was necessary to remove the traffic companygestion. It was also found that there was numberco-relation between the argument and the pleadings companytained in the writ petition. The High Court found that there was numberinfirmity in the impugned numberifications. Hence this appeal on grant of special leave. We have heard learned companynsel for the parties and perused the record. Before we address to the main issue it will be relevant to mention a few facts. Respondent No.3- Bulandshahr Khurja Development Authority, Bhuandshahr hereinafter to be referred to as the Development Authority in its 25th Board meeting held on 3.5.2002 decided to establish at the present site, Transport Nagar abutting to the National Highway No.91. Under the regional plan of the National Capital Regional Planning Board hereinafter to be referred to as the Board National Highway No.91 is proposed to be made a four lane road. Out of the plots described in the paper-book, plot Nos. 424, 424-M, 430, 443, 449M and 492 are number under acquisition under numberification dated 10.7.2006. Plot No.428-M was purchased by M s. Allied Construction under sale deed dated 5.12.2003, plot No.429 was purchased by Krishan Kumar son of Shankar Lal vide sale deed dated 18.9.2003, plot No.442 was purchased by Smt. Asha under sale deed dated 18.9.2003. Plot No.430 was purchased by Vipul Kaushik and Vinay Kaushik both minors. Plot No.449 was purchased by Chandrasekhar, Naresh Kumar and Kishan Kumar under sale deed dated 18.9.2002 and plot No.450 was purchased by the same vendees under two sale deeds dated 18.9.2003 and 12.2.2004. Same was the case with regard to Plot No.478. It was companytended that all these plots were purchased after the resolution was passed by the Board to set up the Transport Nagar. None of the plots were recorded either in the name of M s.Sheikhar Hotels or Shri Chandrasekhar Sharma, the appellants herein. Therefore, a preliminary objection was raised on behalf of the respondents before the High Court that the writ petition was number maintainable at the instance of the writ petitioner-appellants, who number being the owners of the plot, cannot file the objection under Section 5-A of the Act. It was also pointed out that the U.P. Urban Planning and Development Act, 1973 hereinafter to be referred to as the Development Act had companye into force on 12.6.1973 with the object of development of certain areas. A Master Plan was prepared under the Development Act and after the same was published and objections and suggestions were invited. Thereafter, the Master Plan was finalized. In the said Master Plan this area was ear-marked for the Transport Nagar. At present the State Road Transport Bus Terminal is situated in the thickly populated area and there is really traffic companygestion. The Master Plan companytemplated acquisition of total area of 501.58 hectares of land for the integrated plan for the purpose of alleviation of all the traffic problems inter alia by companystructing the Transport Nagar new Bus Stand at Delhi-Khureja and Shikarpur Roads and widening of the roads. For the purpose of establishing Transport Nagar the National Capital Regional Planning Board hereinafter to be referred to as the Board sanctioned a loan of Rs.20.65 crores the Development Authority for companystruction. But because of the litigation it companyld number proceed further and the Board is incurring heavy interest. It was companytended that companypensation to the tune of Rs.17.42 crores have already been spent. It was also pointed out that the Parliament has enacted the National Capital Region Planning Board Act Act 11 of 1985 which came into force on 9.2.1985. The aim of this Act is for providing companymon plan for National Capital Region, which includes the District Bulandshahr of State of Uttar Pradesh. This Act of 1985 was passed by resolutions of the States of Haryana, Rajasthan and Uttar Pradesh under Article 256 of the Constitution. Therefore, in order to have the development of the said region of the Capital Region a Corporate Body has been companystituted with the Union Minister for Urban Development as the Chairperson and the Chief Ministers of Haryana, Rajasthan and Uttar Pradesh and Lt. Governor of Delhi as its members. Therefore, for the development of the National Capital Region such project has been undertaken and this Planning Body has already sanctioned the aforesaid amount. In pursuance of this exercise the aforesaid numberification was issued dispensing with the requirement of Section 5- A of the Act for filing of objection as there was an urgent need of decongesting the traffic problem and to make the smooth traffic flow in the National Capital Region area also. Therefore, Section 5-A of the Act was dispensed with. Learned senior companynsel for the appellants submitted that dispensation of Section 5-A of the Act in the present situation was number proper and there was numberproper application of mind. In support of that learned senior companynsel invited our attention to a decision of this Court in Union of India Ors. v. Mukesh Hans 2004 8 SCC 14. As against this, learned senior companynsel for the respondents invited our attention to a decision of this Court in Rajasthan Housing Bord Ors. v. Shri Kishan Ors. 1993 2 SCC 84 and another decision in Union of India Ors. v. Praveen Gupta Ors. 1997 9 SCC 78. There is numbergainsaying in the fact that this right to file objection under Section 5-A is a valuable right and the Governments are number given a free hand to dispense with Section 5-A. Section 5-A is only a safeguard against the arbitrary exercise of the power by the State. But one should also number loose sight of the fact that invocation of such a provision is also sometimes imperative as in order to meet the urgency of the situation it needs to be invoked in public interest. It depends upon cases to case. Sometimes it may number be necessary at all and the State functionaries may sometime out of over jealousness may invoke this provision which would seriously jeopardize the interest of the people. Therefore, it depends upon case to case where in a given situation Section 5-A has been companyrectly invoked and the authorities were satisfied in an objective manner. In the present case, there is numbertwo opinion that because of the globalization of economy Indian economy is progressing with fast speed, therefore in order to keep pace with the speed, invocation of Section 5-A has become imperative. Traffic companygestion is a companymon experience of one and all and it is very difficult to negotiate with the traffic companygestion in Delhi and National Capital region. Therefore, in the present situation, it cannot be said that the invocation of Section 5-A was for ulterior purpose or was arbitrary exercise of the power. Since the Master Plan has already been prepared and it has been approved by the Planning Board and they have sanctioned a sum of Rs.20.65 crores for the development of this Transport Nagar and widening of the National High No.91 into four lanes. Therefore, the proposal was approved by the Board and it got the sanction from the National Capital Region Planning Board and ultimately the Government invoked the power under Section 17 4 read with Section 5-A of the Act dispensing with the objections. In the light of these facts it cannot be said that invoking of power was in any way improper exercise. There is need for decongestion of the traffic and it is really the dire need of the hour and earliest it is implemented, better for the people at large. In this companynection learned senior companynsel for the appellants invited our attention to the decision of this Court in Union of India Ors supra have held that Section 5-A is number an empty formality but it is a substantive right which can be taken away only for good and valid reason and within the limitations prescribed under Section 17 4 of the Act. But in the present case the numberification was struck down on the facts that numbermaterial was placed on record and secondly, it was also held that discontinuance of festival for want of land and any hindrance in using the land was number there. It was also pointed out that earlier an attempt was made to acquire the land for the very same purpose for holding such festival and it was allowed to lapse by efflux of time and companysequently the Court found that there was numberreference in the file to the need of invoking Section 17 4 and therefore, in a given situation. Their Lordships held that invocation of Section 17 4 of the Act was vitiated by number-application of mind by the authorities. Therefore, this case was decided on the question of fact. As against this, learned senior companynsel for the respondents submitted that traffic companygestion has been recognized by this Court in Union of India Ors. v. Praveen Gupta Ors. supra as urgent need. In this case, land was acquired in order to shift the timber business from the walled city of Old Delhi as it had become the source of traffic companygestion. Therefore, it was required to be urgently shifted from the existing place to relieve the companygestion by acquiring the companycerned land for the public purpose, namely, for establishment of timber depot. In that companytext, their Lordships held as follows Since the acquisition is for shifting of timber business from the walled city to the outskirts of the city, shifting itself is for urgent purpose, viz., to relieve the traffic companygestion in the walled city. Under those circumstances, the exercise of power under Section 17 4 cannot be said to be unwarranted in this case. Similarly, in Rajasthan Hosing Board Ors. supra the question was with regard to acquisition of waste and arable land for housing purpose. It was observed that Governments satisfaction regarding, being subjective, when there is material upon which it companyld have been formed fairly, companyrt would number interfere number would it examine the material as an appellate authority to see existence of urgency. The proposed acquisition for urban housing for weaker section and middle income group of people by Housing Board where there is a great scarcity of house was held to be good purpose for invoking Section 17 4 dispensing with the objection under Section 5-A. Therefore, such invocation of Section 5-A was upheld by this Court. Now, reverting to the facts of this case also as pointed out above, this acquisition was made under the Master Plan prepared under the U.P.

S. Hegde, J. These appeals are by certificate. They arise from the companysolidated judgment of the High Court of Judicature at Madras in a reference under Section 27 1 of the Wealth Tax Act, 1957 hereinafter referred to as Act . The question of law referred to the High Court was Whether on the facts and in the circumstances of the case the Tribunal is right in holding that the claim of the assessee for the deduction of Rs. 31,26,000 was rightly rejected as companying under Section 2 m ii of the Wealth Tax Act. The Wealth Tax Officer, the Appellate Assistant Commissioner as well as the Income Tax Appellate Tribunal took the view that the amount of Rs. 31,26,000 mentioned in the question referred to the High Court was number a debt due from the assessee. The High Court differed from that view and answered the question referred to it in the negative and in favour of the assessee. The facts of the case are number in dispute and they lie within a narrow companypass. The assessee is a public limited companypany established with a view to carry on the business of merchants, storekeepers, companymission agents, retailers, manufacturers, hotel-keepers and catering service. The assessee was mainly carrying on business in South India. There was another companypany known as M s. G. F. Kellne Co. hereinafter referred to as Kellners which had a subscribed capital of Its. 36 lakhs divided into 1,60,000 1/2 cumulative preference shares of Rs. 10/- each, and Rs. 2 lakhs equity shares of Rs. 10/- each. The main activity of the Kellners was railway catering in the Northern India. The respondent companypany acquired 1,59,324 preference shares out of 1,60,000 preference shares issued by Kellners and 1,99,948 equity shares out of 2 lakhs ordinary shares issued by Kellners. The acquisition was done partly for cash and partly in lieu of shares of the assessee companypany issued to the shareholders of Kellners. These shares were acquired sometime in 1929. In 1930 the assessee companypany acquired all the assets of Kellners excepting those relating to the catering on the East Indian Railway, the Great Indian Peninsular Railway, the Bengal and North Western Railway and its goodwill for a companysideration of Rs. 31,26,000. Part of this companysideration was to be paid in cash on demand by Kellners. One of the terms of the agreement was as under If while the said Rs. 31,26,000 mentioned in Clause 2 or any part thereof remains unpaid G. F. Kellner and Company, Limited, shall propose to go Into voluntary liquidation any special resolution submitted to share-holders for that purpose by the Board of Directors shall provide that this companypany instead of paying to the liquidators the said Rs. 31,26,000 or the unpaid part thereof in cash, shall be entitled to surrender to the liquidators any share of G. F. Kellner and Company, Limited held by them and thereby set off or reduce the said indebtedness by Rupees 10 in respect of each Preference Share so surrendered and by 1526/2000 of Rs. 10/- in respect of each ordinary share so surrendered. Later on they acquired all the assets of the Kellners subject to these companyditions. The question for decision is whether Rs. 31,26,000/- mentioned above, is a debt due from the assessee within the meaning of Section 2 m ii of the Act. There is numberdispute that the Kellners is a legal entity by itself. It is true that the assessee had a companytrolling interest in Kellners but that does number, in law, make Kellners a part of the assessee companypany. The Kellners and the assessee companypany are two different legal entities. It was alleged by the assessee and number denied by the Revenue that Kellners have been assessed to wealth tax in the relevant accounting periods and in companyputing its net wealth the debt of Rs. 31,26,000 due to it by the assessee was taken into companysideration. It is also number denied that in respect of the assets purchased by the assessee from Kellners the assessee had number paid a part of the companysideration i.e. Rs. 31,26,000. Prima facie that part of the companysideration is a debt due from the assessee to the Kellners. The fact that under certain circumstances the assessee, instead of paying back the debt in cash, companyld discharge the same by transfer of shares, as provided in the Resolution quoted above, does number change the character of the liability. The mode of discharging a liability does number change its true character. It is also number denied that the assets purchased by the assessee from Kellners had been taken into ac companynt in companyputing the net wealth of the assessee. The companytention of Mr. A. N. Kripal, the learned Counsel for the Revenue that because the assessee had a companytrolling interest in Kellners, its liability ceased to be a debt is unsustainable in law. As mentioned earlier the two companypanies are different legal entities. Whatever companytrol the assessee may have had over Kellners, the Kellners companytinued to be a separate legal entity. We see numbermerit in these appeals.

Thomas, J. This moot point in this appeal this Whether the period of six months envisaged in Section 11A of the Central Excise Act, 1944 for short the Act , for issuing show cause numberice, stood extended by further period so as to enable the Revenue to scale over the hurdle of limitation? Respondent Revenue advanced two alternative premises in support of the plea that the said period of six months stood extended. First is, there was only a provisional assessment and hence the relevant date for issuing the show cause numberice companyld be companynted only from final assessment, Second is that an order of stay issued by the High Court of Delhi on 12.8.1981 virtually amounted to a bridle against issuing show cause numberice and hence the period stood extended by a entire time when the stay order was in operation. Customs, Excise and Gold Control Appellate Tribunal CEGAT - the acronym hereafter held that the assessment was number provisional and hence the first premise was number available to the Revenue. but it held by a majority of 21 that the interim order of the Delhi High Court dated 12.8.1991 operated as virtually a stay, though number expressly so, against issuance of show cause numberice and hence there was numberbar of limitation for recovering the amount of excise duty levied. Thus, the Revenue was permitted by the CEGAT to proceed to recover the duty. The said order of CEGAT is challenged in this appeal. The facts which led to the opening of the aforesaid question can be summarised as follows Appellant has a textile mill companysisting of various divisions, among which the division where yarn is made is distinct from other divisions. Yarn is to be used in the manufacture of fabric which is the end product of the textile mill of the appellant. Yarn is obtained at an intermediary stage in the companyposite textile mill and is further processed in the mill for making fabric. According to the Revenue, there is removal of yarn from one area of the factory and hence that companymodity is exigible to excise duty as per Rules 9 and 49 of the Central Excises Rules irrespective of the Excise duty payable on manufacture of fabric. Appellant challenged the aforesaid direction of the Department in a writ petition filed before Delhi High Court and its companytention was upheld by judgment dated 16.10.1980. The Department then filed an appeal in this Court by special leave. When the special leave petition was pending the Department issued two numberices under Section 11 A of the Act for recovering the excise duty on yarn for the period from 6.11.1980 to 31.3.1981. However, the Department issued a numberification on 20.2.1982 as a precautionary step, amending Rules 9 and 49 of the Central Excise Rules Creating a fiction of deemed removal of the input goods at the intermediary stage within the factory. That amendment later gained incorporation in a legislative enactment also, vide Section 51 2 d of the Finance Act 1982 by which it was given retrospective effect from 1944. Though the appellant challenged the aforesaid amendments first in the Delhi High Court and later in this Court its validity remained undisturbed vide J.K. Spinning and Weaving Mills Ltd. and Anr. V. Union of India and others, 32 L.T1987. 234 - AIR 1987 SC 191 . A three-judge bench of this Court in that decision upheld the validity of the amendments to Rules 9 and 49 besides upholding the retrospectivity granted to the provisions as per Section 51 of the Finance Act 1982. However, in order to allay the apprehension of the assessees that the judicial imprimatur accorded to the long distant retrospectivity to Rules 9 and 49 of the Central Excise Rules would precipitate them to unbearable financial burden their Lordships put a rider that the retrospective effect must be subject to the provisions of Section 11A of the Act. It is advantageous at this stage to read Section 11-A Act 11A. Recovery of duties number levied or number paid or short-levied or short-paid or erroneously refunded. When any duty of excise has number been levied or paid or has been short-levied or short-paid or erroneously refunded, a Central Excise Officer may, within six months from the relevant date, serve numberice on the person chargeable with the duty which has number been levied or aid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should number pay the amount specified in the numberice Provided that where any duty of excise has number been levied or paid or has been short-levied or shortpaid or erroneously refunded by reason of fraud, companylusion or any wilful mis-statement or suppression of facts, or companytravention of any of the provisions of the Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent the provisions of this sub-section shall have effect, as if for the words six months the words five years were substituted. Explanation - Where the service of the numberice is stayed by the order of a companyrt, the period of such stay shall be excluded in companyputing the aforesaid period of six months or five years, as the case may be. 2 companysidering the representation, if any, made by the person on whom numberice is served under sub-section 1 determine the amount of duty of excise due from such person number being in excess of the amount specified in the numberice and thereupon such person shall pay the amount so determined. 3 for the purposes of this section. refund includes rebate of duty of excise on excisable good exported out of India or on excisable materials used in the manufacture of goods which are exported out of India relevant date means a in the case of excisable goods on which duty of excise has number been levied or paid or has been short-levied or short-paid- Where under the rules made under this Act a monthly return, showing particulars of the duty paid on the excisable goods removed during the month to which the said return relates, is to be filed by a manufacturer or producer or a licensee of a warehouse, as the case may be, the date on which such return is so filed B where numbermonthly return as aforesaid is filed, the last date on which such return is to be filed under the said rules c in any other case, the date on which the duty is to be paid under this Act or the rules made thereunder b in a case where duty of excise is provisionally assessed under this Act or the rules made thereunder, the data of adjustment of duty after the final assessment thereof,. The period of six months envisaged in sub-section 1 thereof can thus be extended only under three eventualities. First is, if the impairment of the levy is attributable of any fraud, companylusion or wilful misrepresentation or suppression of facts, the period of six months will stand stretched upto five years. The second eventuality is, if the original assessment was provisional, in which case the period would start running only from the date of final assessment. The third is , if the service of show cause numberice on the person chargeable with duty is stayed by a companyrt, in which case the entire period of stay shall be excluded from companyputing the aforesaid limitation time. The first eventuality mentioned above has numberapplication to the facts of this case and hence a discussion on that can companyveniently be skipped. Regarding the second companytingency, though the department pleaded that only a provisional assessment was made, that plea was repelled by CEGAT in reversal of a finding made by the Assistant Collector as well as the Collector Appeals . It is the third companytingency which the Revenue has alternatively relied on which secured approval from CEGAT. Before we proceed to companysider the merits of the case, we have to deal with a preliminary objection raised by the Revenue regarding maintainability of this appeal. In the appeal petition it is stated that the appeal is filed under Section 35L b of the Act which reads as under 35-L. Appeal to supreme Court An appeal shall lie to the Supreme Court from- a x x x x x x x x x x x b any order passed by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment. We agree with the learned companynsel for the Revenue that the question sought to be determined in this appeal has neither any relationship to the rate of duty of excise or to the value of the goods for purpose of assessment. It may be that the appeal companyld number have been filed under the aforesaid Section on the facts of this case. Be that as it may, we are numberdisposed to dismiss this appeal on that technical ground at this stage because the appellant companyld in that situation have sought for special leave under Article 136 of the Constitution. With all the papers available for deciding the question involved in this appeal, we do number think it proper to drive the appellant to file another special leave petition for that purpose particularly because of the lapse of almost nine years since the filing of this appeal. We, therefore, treat this appeal as one filed by special leave. We will number companye down to the question to be determined. Two vivid period are involved about which appellant raised the companytention that the bar under section 11-A of the Act would operate. The first period is between 6.11.1980 and 31.3.1981 and the second period is from 1.4.1981 to 5.12.1981 there is numberdispute regarding the subsequent period as it falls, indubitably, within the span of Section 11-A . Shri Joseph Vallapalli, learned senior companynsel for the appellant fairly submitted that though the appellant raised the companytention relating to the aforesaid two periods first and second , he would companyfine his argument to the second period only, as a decision of this Court in this appeal need be given with reference to the second period. According to the Revenue, there was a stay of service of numberice to show cause as envisaged in Section 11-A of the Act from 12.8.1981. The said companytention is made on the strength of an order of stay passed by the Delhi High Court on a Writ Petition filed by the appellant challenging a circular issued by the Central Board of Excise and Customs for short the Board on 24.9.1980. That circular was issued by the board purportedly in interpretation Rule 9 of the Central Excise Rules. As per the said circular, the Collector of Central Excise was required to specify in addition to the place where excisable goods are produced or cured or manufactured premises appurtenant thereto, if necessary, and to take immediate steps to ensure approval to the place or production, and to delegate the powers of the Collector under Rule 9 1 to the licensing authorities and further to demand the assesses to submit fresh ground plans etc. The appellant had moved a petition in the writ application for an order of stay in terms of prayer a thereof which companysisted of the following limbs Stay permitting the petitioners to process yarn within its factory without payment of duty restraining respondent from giving effect to the companytents of the directive of the Board dated 24.9.1980 and to stay further proceedings pursuant to numberices date 4th and 5th May, 1981 relating to the period 6.11.1980 to 31.3.1981. The High Court of Delhi has allowed the said petition on 12.8.1981 in terms of the said prayer. The companytention which the Revenue pressed into service before CEGAT and which was fond acceptance by them is that as per the second limb, the stay became operative which virtually amounted to stay of service of numberice under Section 11-A of the Act. Exclusion of any period from the time provided for issuing numberice which is companytemplated in Section 11A of the Act is mentioned in the Explanation which is incorporated as part of that Section. Period of the stay can be excluded if the service of the numberice is stayed by on order of a companyrt. The companyverse is if there is numberstay of service of numberice, there is numberscope for excluding any time from the period of limitation as per this Explanation. If a very strict interpretation is given, numberice should have been issued before passing the order of stay so that service of the numberice companyld be blocked. But such an extreme view is number necessary for understanding the companytours of the Explanation. In companysidering whether the extension of time permitted in Section 11-A of the Act can be liberally companystrued or that it should be a strict companystruction, we think it useful to recall how this Court approached the challenge made against Section 51 of the Finance Act, 1982 which afforded retrospective operation to the amended Rules 9 and 49 of the Central Excise Rules. Those provision were assailed in the case of J.K. Spinning and Weaving Mills Ltd. Anr. Supra attributing arbitrariness and unreasonableness to them besides being violative of Article 19 1 g or the companystitution. It was companytended in that case that excessive retrospective operation prescribed by a taxing statute would amount to companytravention of fundamental rights, and in support of that companytention, those appellants made reliance on the decisions of this Court in Raj Ramakrishna Others The State of Rajasthan of Others, 1966 1 SCR 890. In the former decision, this Court has pointed out that if the retrospective feature of a law is arbitrary and burdensome, the statute will number be sustained and reasonableness of the extent of retrospective operation of a statute will depend upon he circumstances of each case. The apprehension of the appellants in J.K. Spinning and Weaving Mill supra that the long retrospectivity attached to the legislative amendments would result in mulcting the taxpayer with whopping financial burden has gained serious companysideration of this Court and an effort was made to find a way out to salvage those provisions by minimising the gravity of the hardship on the assessees. That endeavour resulted in the judicial pronouncement in J.K. Spinning and Weaving Mills supra by placing those provisions subject to the time limit fixed under Section 11-A. If the said rider was number imposed by this Court as per the decision in J.K. Cotton spinning and Weaving Co, case supra , what would have been the fate of Rules 9 and 49 as amended in the wake of the challenge to its vires cannot number be reexamined. Whatever it be, the fact remains, that Rules 9 and 49 survived the challenge when this Court nailed their sweep to the limitation specified in Section 11-A. Hence that limitation period should number be stretched more than the elasticity supplied in the Section itself. So, in our opinion, the eventuality envisaged in Section 11-A for the further lengthening of the limitation period must be strictly companystrued. The numberice envisaged in Sub-section 1 of Section 11-A of the Act can be issued under any one of the four companyditions 1 when duty of excise has number been levied on the companymodity when such duty has been shortlevied or when such duty, though levied, has number been paid or when such duty levied was only short-paid. If any one of the above companydition exists, the numberice companytemplated therein can be issued. It is an extremely difficult proposition for acceptance that Collector of Central Excise was prevented from issuing a numberice to the appellant in this case as the Delhi High Court has restrained the department from giving effect to the companytents of the directives of the board dated 24.9.1980. The said directive of the Board was mainly intended to be observed by the Collector of Central Excise as well as other officials under him to carry out certain steps while exercising powers under Rule 9 1 of the Act and also for making delegation of such powers to the licensing authorities. here the test is, if the said circular or directive had number been issued at all, companyld the Collector of Central Excise have issued a numberice under sub-section 1 to Section 11-A of the Act. The answer is, that the Collector companyld still have issued a numberice. If so, the suspension of the circular by the order of the companyrt would number have prevented the Collector from issuing the numberice. The effect of the companyrt order dated 12.8.1981 was only to keep the circular in suspended animation so far as the appellant is companycerned and numberhing more. That apart, the mere fact that department issued three numberices during the time when the aforesaid order was in force itself is sturdy proof that even according to the Department, there was numberstay of service of numberice by a companyrt order. Nobody has advanced a companytention, number companyld any such companytention have been advanced, that the Collector of Central Excise has flouted the stay order of the Delhi High Court by issuing such numberices. Shri Gauri Shankar Murthi, learned companynsel for the Revenue adopted an alternative companytention that the period of limitation can be saved by holding that the assessment which preceded the action was only a provisional one. Of companyrse, Section 11-A A permits the said six months time to go further if the preceding assessment was only provisional as companyld be numbered from sub-section 3 ii b of Section 11A. The same companytention was urged before the CEGAT but after a detailed discussion, it was repelled. Undaunted by such adverse finding, Shri Gauri Shankar Murthi pleaded that the Revenue must be allowed to canvass for reversal of the said finding in this appeal in on the footing of the principle adumbrated in Order 41 Rule 22 of Civil Procedure Code, 1908. Shri Joseph Vallapalli, learned senior companynsel opposed reopening the said finding on the premise that in this appeal, even after it is treated as one by special leave under Article 136 of the Constitution, the points raised by the appellant alone can be canvassed. A three-judge bench of this Court in Vashit Narain Sharma v. Dev Chandra and Others, 1955 1 SCR 509 did number permit a respondent, in an appeal filed by special leave under Article 136 to support the decision challenged in the appeal on a ground which had been found against him. The companyrt held that the companyresponding provision in the Civil Procedure Code has numberapplication to an appeal filed by special leave under Article 136. The aforesaid decision was cited before another threejudge bench in the case of Sri Baru Ram v. Shrimati Prasanni and Others 1959 SCR 1403 where it was number dissented from. But in the light of the decision of the Constitution bench of this Court in Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji and Others, 1965 1 SCR 712, the ratio adopted in the earlier mentioned two decisions is numbermore in vogue. The Constitution Bench held that this Court has power to decide all points arising from the impugned judgment and even in the absence of an express provision like Order 41, Rule 22, CPC, this Court can devise appropriate procedure to be adopted at the hearing. The observations of the bench which are relevant number are the following There companyld be numberbetter way of supplying the deficiency than by drawing upon the provisions of a general law like the Code of Civil Procedure and adopting such of those provisions as are suitable. We cannot lose sight of the fact that numbermally a party in whose favour the judgment appealed from has been given will number be granted special leave to appeal from it. Consideration of justice, therefore, require that this Court should in appropriate cases permit a party placed in such a position to support the judgment in his favour even favour even upon grounds which were negatived in that judgement. We are therefore, of the opinion that in Vashisht Narain Sharmas Case, too narrow a view was taken regarding the powers of this Court. We, therefore, companycede that respondents cannot be precluded in this appeal from canvassing for reversal of a finding companytained in the impugned judgment despite its end result being in their favour. However, on a companysideration of the arguments raised on the merits of that point, we find it is difficult to hold that there was provisional assessment. CEGAT has adverted to certain reasons for arriving at such a finding. Rule 9-B of the Central Excise Rules has been quoted in the impugned judgment. The title of the rule is Provisional Assessment, in which situations are detailed when provisional assessment companyld be made. CEGAT pointed out in the judgment certain admissions made by the Department such as the absence of any express order of provisional assessment as required under Rule 9-B, absence of any circumstance for making a provisional assessment, and that it was number stated in the show cause numberice that the assessment made during the relevant period was provisional. The Assistant companylector had treated the assessment as provisional solely on the premise that the matter was subjudice, and hence all the assessments for the period April 1981 to 15.3.1983 were, therefore, made provisional. CEGAT has rightly found that the said yardstick was hardly sufficient to make an assessment provisional. Shri Gauri Shankar Murthi, in order to surmount a difficult situation companyfronted by the aforesaid Rule 9-B of the Central Excise Rules adopted a new companytention as under Rule 9-B was incorporated in the Central Excise Rules with effect from 1-8-1059 whereas the Self Removal Procedure by manufacturers themselves has been introduced in the Rules with effect from 14.7.1969 which provides for a self assessment, the finalization of which companyld be made as indicated in Rule 173-F. Learned companynsel companytended that with the introduction of the said procedure a self removal by itself would amount to provisional assessment. In support of the companytention, learned companynsel cited the decision of this Court in Seraikella Glass Works vs. Collector of Central Excise, Patna 1997 91 ELT 497 wherein implication of a self assessment has been companysidered and held it to be numberhing but a provisional assessment which is subject to final assessment. Shri Joseph Vallapalli, learned senior companynsel for the appellant pointed out, in reply to the said companytention, that the companycept of provisional assessment adverted to in Section 11-A has a companynotation which can be traced in rule 9-B which requires a specific order to the made for provisional assessment and it should be followed by companypliance with certain statutory requirements, In the absence of any such order there was numberprovisional assessment as envisaged in Section 11-A of the Act, according to the learned companynsel. he further companytended that respondent cannot be permitted to advance a new ground for supporting his theory of provisional assessment. On the factual side also, learned companynsel submitted that pursuant to the judgment of the High Court dated 16.10.1980, the appellant has totally excluded captively companysumed yarn from assessment and hence there was numberself assessment at all on yarn because it was a case of number-levy of a particular companymodity and number one of short levy. The companyollary according to the companynsel, is that there was numberprovisional assessment at all. It is a fact that Revenue has never adopted a stand based on self Removal procedure envisaged in Chapter VII-A of the Rules for establishing that there was a provisional assessment. It is one thing to say that respondent can, in an appeal filed by the opposite party, re-canvass for reversal of a finding reached against him in the judgment, the operative part of which the respondent is number supporting , and it a different thing to permit the respondent to put forth absolutely new grounds for it. hence it is number necessary to further companysider whether there was any self-assessment. We are, therefore, number persuaded to disturb the finding reached by the CEGAT regarding the plea of provisional assessment. In the result, we allow this appeal and set aside the impugned judgement.

C. Lahoti, J. Leave granted in SLP C No. 15370/1997. Rajbir Singh Khanna, respondent No. 1 was companymissioned in the Indian Army on 8.2.1964. In June 1989, when he was holding the rank of Colonel, he was posted as Deputy Commandant of 61 Infantry Brigade deployed in Sri Lanka. At that time Brigade Commander was Brigadier Jaspal Singh, respondent No. 2. On 22.1.1990, 7.2.1990 and 9.2.1990 respectively three Courts of Inquiries were ordered to investigate certain financial irregularities in the sale of VCPs belonging to HQ 61 Infantry Brigade and movement of 5 other ranks of HQ 61 Infantry on temporary duties from operational area to Jammu, the home place of respondent No. 1. The irregularities were numbericed by Brigadier Jaspal Singh. On 6.2.1990 Brigadier Jaspal Singh also issued warning letter to respondent No. 1 putting him on adverse report under paras 80 and 81 of Special Army Order 3/S 89. Though the respondent No. 1 replied to the warning letter dated 6.2.1990, Brigadier Jaspal Singh was number companyvinced and directed staff Court of Inquiry to be held for ascertaining the facts. On 14.3.1990 Brigadier Jaspal Singh endorsed an adverse report on the respondent No. 1 which stated inter alia -there have been aberrations in his mandatory character qualities of integrity and moral companyrage which make his utility to the service doubtful. He has been found wanting in discipline towards managing personal finances and was thus embarrassed in this companytext. I do number recommend this officer for further promotion and would advise upon his change of appointment. The respondent No. 1 was due for promotion as Brigadier but the aforesaid adverse report was companystrued as drop in his performance and as his promotion was subject to companytinued satisfactory performance he was number physically promoted to the rank of Brigadier. On 23.2.1990 he was approved for promotion to the acting rank of Brigadier in the General Cadre. A fourth Court of Inquiry was also ordered against the respondent No. 1 to investigate into certain allegations, such as, a misuse of regimental fund, b misuse of regimental money, c issuing cheques which bounced, d over-drafting of Sri Lankan currency where the respondent No. 1 was deployed, e sending Jawans on temporary duty to his home station at Jammu, and f making false declaration in his record of service. Based on the findings of the fourth Court of Inquiry, on 11.7.1990 disciplinary action was directed to be initiated against respondent No. 1 and he was attached with the office of the Chief Engineer, Calcutta Zone so that the disciplinary action companyld proceed against him as per the rules. Early in 1991 respondent No. 1 filed a writ petition in the High Court of Jammu and Kashmir seeking quashing of all proceedings initiated against him as also a direction to the army authorities to promote him to the rank of Brigadier with effect from 23.2.1990, the date on which he was intimated of his having been approved for the rank of acting Brigadier. On 17.12.1991 a learned Single Judge, while directing rule nisi to issue, also made an interim order restraining any further action against the respondent No. 1 on the basis of proceedings already held and number to deprive the respondent No. 1 of promotion to the rank of Brigadier in case he has been held to be entitled for it. This interim order was companytinued by the High Court vide order dated 9.3.1992 to remain in operation in spite of objections filed on behalf of the appellants and the High Court having been informed by the appellants that because of drop in performance the respondent No. 1 companyld number be promoted. Thereafter again, on behalf of the appellants, an application was filed before the High Court seeking vacation of the interim order dated 17.12.1991 so that the army authorities companyld proceed with the companyrt martial but the learned Single Judge declined to vacate the interim order on the ground that the prayer companyld number be entertained until the interim order dated 17.12.1991 was first implemented, that is, the respondent No. 1 was promoted. The appellants unsuccessfully filed LPA against the order of learned Single Judge and then came up to this Court by filing a SLP putting in issue the interim orders of the learned Single Judge as also the order of Division Bench dismissing the LPA. On 29.6.1992 and 28.9.1992 the High Court had directed its order dated 17.12.1991 to be implemented in letter and spirit without regard to alleged drop in performance of respondent No. 1. The respondent No. 1 had to be promoted by the appellants and given acting rank of Brigadier under threat of companytempt proceedings. Such promotion had taken place after the filing of the SLP and before it companyld be listed for hearing. On 25.11.1992 this Court disposed off the SLP directing the disciplinary proceedings against the respondent No. 1 to be proceeded ahead. This Court also numbered that the respondent No. 1 was already promoted. Liberty was allowed to the appellants to approach the High Court seeking its leave for the framing of the charges which were alleged to have become barred by time on account of companyrt proceedings. On 31.12.1993 a learned Single Judge of the High Court allowed the writ petition filed by the respondent No. 1 Proceedings of all the four Courts of Inquiry were adjudged to be illegal. The respondent No. 1 was directed to companysider the respondent No. 1 for promotion to the rank of Brigadier along with the companysequential benefits attaching with such promotion. The companyrt martial proceedings were directed to be quashed as being barred by time under Section 122 of the Army Act overruling the plea of the appellants that the delay in companyrt martial proceedings was attributable to the interim orders passed by the High Court. In the opinion of the High Court even if the delay was attributable to the interim orders of the High Court that did number make any difference to the applicability of Section 122 of the Army Act. The appellants filed Letters Patent Appeal. By an interim order dated 3.3.1994 the Division Bench gave liberty to the appellants to proceed with the companyrt martial but directed numberfinal order to be passed therein. On 21.4.1994 general companyrt martial proceedings companymenced and were companycluded on 10.8.1994. The GCM found the respondent No. 1 guilty of 9 charges framed against him. The respondent No. 1 was sentenced to rigorous imprisonment for one year, to be cashiered from service and 15 years past service to be forfeited for the purpose of pension the findings recorded by the GCM and the sentence passed on respondent No. 1 companyld number be companyfirmed in view of the order of the Division Bench dated 3.3.1994. Under Section 153 of the Army Act the finding and sentence of the companyrt martial are number valid unless companyfirmed. After hearing both the parties, vide the judgment dated 25.3.1997 the Division bench dismissed the LPA with a slight modification. Briefly stated the Division bench held that the first and the second Court of Inquiry were companyducted behind the back of the respondent and therefore stood vitiated in view of Rule 180 of the Army Rules. It was also held that the first three Courts of Inquiry were presided over by an officer of the rank of Lieutenant Colonel and Major and the respondent No. 1 companyld number be made to appear before an officer lower in rank in view of Regulation 518 of the Defence Services Regulation. However, the fourth Court of Inquiry was held to be valid. Nevertheless, the adverse report recording drop in performance of the respondent No. 1 which was based on the first three companyrts of Inquiry was also held liable to be set aside. The Division Bench agreed with the learned Single Judge in holding that the companyrt martial proceedings were barred by time under Section 122 of the Army Act and it was immaterial if the companyrt martial proceedings were interdicted by a judicial order. The Union of India has companye up in appeal by special leave. We have heard the learned Counsel for the parties at length. The position of law insofar as the interpretation of Section 122 of the Army Act, 1950 is companycerned stands resolved and settled by a three-Judge Bench decision of this Court in Union of India and Ors. v. Harjeet Singh Sandhu wherein it has been held that the delinquent officer having himself created a situation withholding companymencement of trial he would be estopped from pleading the bar of limitation and the trial companymenced on vacating of the judicial order of restraint on companyrt martial shall be a valid trial, relying on the principle that numberman can take advantage of his own wrong. It has also been held that in spite of companyrt martial proceedings having gone barred by time a disciplinary action based on the same set of facts and the same misconduct which formed subject-matter of charge before the companyrt martial is number excluded. The Division Bench and the learned Single Judge of the High Court were therefore number right in taking the view which they did for the purpose of quashing the companyrt martial proceedings. It is also brought to our numberice that certain companytempt of companyrt proceedings were initiated at the instance of the respondent No. 1 companyplaining of the appellants having violated the interim orders of the Court. This case has a chequered history. For the third time this matter has travelled upto this Court. Admittedly, the respondent No. 1 has retired with effect from 31.8.1996. Upto the time when in the year 1989 the respondent No. 1 came to be posted in Sri Lanka he had a brilliant service record. We have carefully looked into the allegations leveled against the respondent No. 1 forming subject-matter of several Courts of Inquiry proceedings out of which 3 have been held to be invalid while one has been held to be valid. The allegation leveled against the respondent No. 1 were number only denied but also defended by alleging malafides on the part of Brigadier Jaspal Singh, who according to respondent No. 1 was guilty of financial irregularities himself and was interesting in blocking the respondent No. 1, lest the respondent No. 1, on being promoted, should initiate proceedings against him. Keeping in view the totality of the circumstances of the case, the nature of allegations and companynter-allegations, the chequered history of multiple litigation and the fact that the respondent No. 1 has stood retired from the service we do number deem it proper to revive several legal proceedings pending against each other and in our opinion it will meet the ends of justice if this multi-pronged legal battle and the companyrt proceedings are given a quietus so that the respondent number I can also live a peaceful life as a civilian while the appellants may feel happy with their relationship with the respondent No. 1 having been served with effect from 31.8.1996 whatever might have been the appellants earlier view of the respondents companyduct. While hearing the learned Counsel for the parties additionally in the light of the law settled by this Court in the case of Harjeet Singh Sandhu supra we put across the suggestion to the learned Counsel for both the parties and heard them thereon. In our opinion the following directions would, in the facts and circumstances of this case, meet the ends of justice The general companyrt martial proceedings initiated against the respondent No. 1 shall stand dropped at the stage at. which they are The respondent No. 1 shall be deemed to have retired from the appellants service with effect from 31.8.1996 in the rank of acting Brigadier. His retiral benefits shall be settled and released, if number already done All other proceedings initiated by the appellants against the respondent No.

civil appellate jurisdiction civil appeal number 759 of 1964. appeal by special leave from the judgment and order dated may 13 1960 of the patna high companyrt before the board constituted under s. 18 1 of the bihar land reforms act 1950 in claim appeal number 22 of 1956. c. chatterjee and d. goburdhun for the appellant. p. jha for the respondents. the judgment of the companyrt was delivered by vaidialingam j. in this appeal by special leave the judg- ment and order of a single judge of the patna high companyrt constituted as the board under s. 18 1 of the bihar land reforms act 1950 bihar act xxx of 1950 hereinafter referred to as the act are under attack. the appellant had taken three mortgages from the respondents on july 20 1915 for rs. 15000/- on april 24 1917 for rs. 33000/ and on numberember 12 1917 for rs. 42500/-. he had filed a suit. for recovery of the mortgage amounts and also obtained a decree. on numberember 18 1925 the appellant had obtained a usufruc- tuary mortgage for a total sum of rs. 84000/- companyprising three different sets of properties a five items of milkiat properties b a three-storey house in the town of gaya and c certain bakasht lands. the deed of mortgage is marked as exhibit i. by this mortgage the earlier decree was repaid. by virtue of a numberification issued under s. 3 of the act the milkkiat properties vested in the state of bihar on january 25 1955 and in respect of the bakasht lands the respondents became statutory tenants under s. 6. 9supci/66-5 the appellant filed an application dated april 24 1955 under s. 14 of the act before the claims officer. in that application he had stated after giving particulars of the items mortgaged under exhibit 1 that the principal amount advanced was rs. 84000/and that numberamounts had been paid by the mortgagors towards their liability. the appellant requested the claims officer to allow his claim as per the provisions of the act. the respondents filed objections to the claim made by the appellant. in short their plea was that the appellant had number given credit for a sum of rs. 20000/- which amount according to them had been paid -by one maheshwari singh a purchaser of an item of mortgaged properties. they also alleged that the appellant had number given credit similarly to anumberher sum of rs. 3250/- paid by one baldeo singh a purchaser of anumberher item of the mortgaged properties. the last companytention raised by them was that the appellant had realised as income from the properties a sum of rs. 900000/- and therefore the entire mortgage liability stood discharged. it may be mentioned at this stage that according to tile appellant he had realised only a sum of rs. 23250/- as income from the properties which were in his possession. the claims officer by his order dated april 18 1956 ulti- mately held that the appellant was entitled to recover a sum of rs. 40514/10/- out of the companypensation money in respect of his mortgage claim. the claims officer was number prepared to accept the plea of the respondents regarding the payment of rs. 20000/by maheshwari singh. on an admission made by the appellant the claims officer hold that a sum of rs. 2309/8/- had been received by the appellant from a purchaser of one item of the mortgaged properties and that the respondents were entitled to be given credit for that amount. the claims officer accepted the plea of the respondents that in respect of the house in gaya a ratable reduction of rs. 2500/- might be made out of the principal amount. the claims officer was number prepared to accept the plea of the respondents that the appellant had received by way of income from the mortgaged properties in his possession a sum of rs. 900000/- on the other hand the abstract of accounts submitted by -the appellant showing the net income received as rs. 22340/3/2 has been accepted by the claims officer. the claims officer had also held that the principal amount advanced by the appellant should be fixed in the sum of rs. 45324/-. on these findings the claims officer came to the companyclusion that numberportion of the principal amount had been satisfied out of the unsufruct of the property given on mortgage except the sum of rs. 2309/8/- received by the mortgagee from the purchaser of an item of the mortgaged properties. a further reduction of rs. 2500/- out of the principal amount was made in respect of the value of the house in gaya fixed by the officer. in the result the claims officer allowed the claim of the appellant in the sum of rs. 40514/10/- the respondents challenged this decision of the claims officer in claim appeal number 22 of 1956 before the board constituted under s. 18 1 of the act. inasmuch as the claim appeal involved a claim exceeding rs. 10000/- the board as per s. 18 1 a of the act companysisted of a judge of the patna high companyrt namely misra j. in the appeal before the board the respondents had attacked the various findings recorded against them. by the claims officer. before we refer to the findings recorded by the board it is necessary to advert to an application filed by the appellant before the board. the appellant filed an application dated numberember 9 1959 before the board for permission to withdraw the claim case preferred by him before the claims officer and also requesting that further proceedings in the claim appeal filed by the respondents be dropped. in- that application the appellant had stated that the claim appeal arose out of an order passed by the claims officer on an application filed by the appellant under s. 14 of the act. it was further stated that the respondents were the proprietors and that they had mortgaged certain properties by way of a usufructuary mortgage to the appellant for a total sum of rs. 84000/the appellant referred to the fact that the claims officer had found that the principal amount still remained unsatisfied and that the decision of the claims officer was being challenged by the respondents. the appellant then stated that he had been advised and that he also believed it to be in his interest number to proceed with his claim case and that he would follow such other remedy as the law permitted. that application was opposed by the respondents. the learned judge by his order dated december 7 1959 dismissed the said application. in the order dismissing the application after referring to the circumstances under which the claim application was made by the appellant and the findings recorded by the claims officer the learned judge referred to the fact that the appellants request was for withdrawal of the claim without any reservation whatsoever. the learned judge adverted to certain decisions quoted before him and was of the view that the principles laid down in those decisions were to the effect that if the result of allowing the prayer for withdrawal would be to prejudice the interest of the opposite party the application for withdrawal should number be granted. but the learned judge did number actually record in this order what exactly would be the prejudice caused to the respondents by allowing the appellant to withdraw his claim application. nevertheless the learned judge was number inclined to allow the request of the appellant to withdraw his claim application. when the claim appeal was being heard by the learned judge the appellant again appears to have reiterated his request to withdraw the claim application as originally asked for in his application dated numberember 9 1959. the learned judge again was number inclined to accept that request. in this companynection he referred to a decision of the patna high court in sukhdeo das v. kashi prasad 1 to the effect that though it was open to a mortgagee either to proceed against the companypensation money as part of the mortgage security or enforce his right against the mortgagor personally or against the mortgage security that had number vested in the state. nevertheless it was number open to the mortgagee to proceed simultaneously to enforce his right under the ordinary law as also under the act. the learned judge also referred to the principle laid down in the said decision that under those circumstances the mortgagee would have to elect and that once he had elected his remedy by having recourse to the procedure under the act he was bound down to it and he companyld number resile from that position the learned judge was also of the view that in this case the ap- pellant having filed his claim under s. 14 of the act and a decision having been given by the claims officer it was the duty of the board sitting in appeal only to decide the correctness or other wise of the order passed by the claims officer in companysequence he was of the view that when once the prayer of the appellant for withdrawal had been rejected he had to proceed to decide the case on merits as per the provisions of the act. after having expressed his view in the manner indicated above on the request of the appellant for withdrawing the claim application the learned judge then companysidered the appeal filed by the respondents on merits. he was number prepared to accept the finding of the claims officer that the sum of rs. 20000/- had number been established to have been paid to the appellant by maheswari singh the purchaser of one item of mortgaged properties. in this companynection he referred to the evidence adduced by the parties and ulti- mately held that the sum of rs. 20000/- must have been paid by maheshwari singh to the mortgagee-appellant and the mortgagors should be given credit for that amount. there was numbercontroversy regarding the receipt by the appel- lant of rs. 2309/8/- in respect of the purchase of an item of the mortgaged property by baldeo singh and that amount also was given credit to in favour of the respondents. regarding the claim a.i.r. 1958 pat. 630. made by the respondents that the appellant when he was in possession of the mortgaged properties had realised nearly nine lakhs of rupees by way of income from the properties the learned judge was of the view that there had only been a general finding recorded by the claims officer in favour of the appellant. the judgment under attack shows that he was at one stage inclined to remand the proceeding with a direction to the claims officer to record a more definite finding. but he ultimately came to the companyclusion that it was number necessary to remand the proceeding inasmuch as the claim of the respondent companyld be adjudicated upon on the basis of the evidence adduced by the parties and other circumstances. in this companynection the learned judge adverted to the plea of the appellant that he had realised by way of rents and profits only a sum of rs. 22000/-. he was ultimately of the view that the appellant should have derived at least income at the rate of 3 and on that basis he should have received a sum of rs. 75600/by way of interest on the sum of rs. 84000/- claimed to have been advanced as principal. the learned judge after giving credit to the additional sum of rs. 23009/- mentioned above ultimately held that the total amount received by the appellant would be rs. 97909/- and after referring to the provisions of s. 16 of the act was of the view that the appellant would be entitled to a total sum of rs. 85000/which is double the amount of principal of rs. 42500/-. but in view of the finding recorded that the appellant had already received a sum of rs. 97909/- he held that the appellant-creditor had realised more than double the amount of principal and therefore further held that the mortgage claim of the appellant should be companysidered to have been fully discharged and that numberfurther amounts were due to him. in the result the claim appeal number 22 of 1956 filed by the respondents was allowed and the claim application filed by the appellant was dismissed. mr. n. c. chatterjee learned companynsel for the appellant challenges the decision substantially on two grounds i that the view of the learned judge that the appellant having filed a claim petition under s. 14 of the act must be companysidered to have elected to adopt the remedy available to him under the act and as such is number entitled to proceed under the general law as against the properties which have number vested in the state under the act to enforce his mortgage claim is number companyrect ii the findings re- corded by the learned judge on facts differing from the conclusions arrived at by the claims officer are number correct. in this appeal the appellant has also attacked the reasons given by the learned judge for declining to grant permission to him to withdraw the claim application. mr. chatterjee has urged that inasmuch as the mortgage comprises properties which have vested in the state under the act and properties which have number so vested there is no question of the appellant being bound to seek relief before the claims officer under the act in respect of properties which have number vested in the state. according to companynsel the various provisions of the act will clearly show that the scheme of the act is only to companyfer jurisdiction on the claims officer to entertain claims in respect of the mortgages which take in either the entire properties or part of the properties which have vested in the state. the act does number in any manner take away the right of such a mortgagee to realise his dues by having recourse to the remedies available to him from the properties which have number vested in the state. it is argued that the request made by the appellant before the learned judge was to permit him to withdraw his claim petition and the appellant had made it clear that his object was to seek remedy in law as against the mortgaged properties which have number vested in the state. according to the appellant the learned judge has also number found as to what exactly is the prejudice which will be caused to the respondents by the appellant being allowed to withdraw the claim petition. the only reason given by the learned judge according to the appellant for number permitting the withdrawal of the claim petition is that the appellant has filed a claim petition under the act and that he must be considered to have elected to adopt the remedy available under the act. the question of election does number arise inasmuch as the appellant has got a right to seek relief under the general law to enforce his mortgage claim in respect of the properties which have number vested in the state. if the appellant is number in any way prohibited from seeking such relief according to mr. chatterjee the application for withdrawal made by his client should have been allowed. mr. jha learned companynsel for the respondent has urged that the appellant voluntarily filed a claim petition before the claims officer under s. 14 of the act in which he has specifically prayed for adjudicating upon the claim made by him. according to mr. jha the act in question is a self- contained companye and it gives jurisdiction to the claims officer to adjudicate upon all matters pertaining to the mortgage claim made by the appellant. having filed the claim in question and after obtaining a decision at the hands of the claims officer the companynsel urges it is numberlonger open to the appellant to seek withdrawal of the same. according to mr. jha the act gives jurisdiction to the claims officer even if the mortgage consists of properties which have vested in the state as also properties which have number so vested. in this companynection mr. jha referred us to the provisions contained in ss. 4 d and 35 of the act as a bar to any claim being made by the appellant before any other companyrt. mr. jha points out that the application for withdrawal made by the appellant purported to be under order xxiii r. 1 p.c. which has numberapplication at all to proceedings under the act which does number companytain any provision relating to withdrawal of claims. it is also pointed out that the request for withdrawal was made in the appeal filed by his clients challenging the decision of the claims officer to the extent it was against the respondents. mr. jha further points out that the respondents in such an appeal cannumber. as of right ask for withdrawal of his claim and in any event in this case the learned judge has declined to exercise his discretion in favour of the appellant. therefore mr. jha points out numbercircumstances have been made out by the appellant justifying an interference with the discretion so exercised. the findings recorded on facts by the learned judge are alsochallenged on behalf of the appellant and those findings numberdoubtare sought to be supported on behalf of the respondents. but inthe view that we take that the appellants request for withdrawalof the claim petition should have been allowed we do number propose to consider and express any opinion on the second ground of attack that is made in these proceedings. from what is stated above it will be seen that the question that arises for companysideration is as to whether in a case where a mortgage takes in two sets of properties viz. properties which have vested in the state under the act and properties which have number so vested the right of the mortgagee to pursue the remedy available to him under the ordinary law as against the properties which have number vested in the state for enforcing his mortgage claims is in any manner taken away by the act. if we are of opinion that such a right has number been taken away by the act it will follow that the view of the learned judge that it is number open to the appellant to proceed simultaneously to enforce his right under the ordinary law as also under the act is number companyrect. it will also follow that the further view that a party situated like the appellant in this case is bound to elect the remedy which he wants to pursue cannumber also be companyrect. the scheme of the act has been companysidered by this court in two decisions raja sailendra narayan bhanj deo kumar jagat kishore prasad narayan singh 1 and krishna prasad v. gauri kumari devi. 2 in sailendra narayans case 1 the question related to the effect of a decree for redemption obtained by the mortgagor after the companying into force of the act and the entire property whichwas the subject of mortgage and the decree vesting in the state. after referring to the material provisions companytained in the 2 1962 supp. 3 s.c.r. 564. act including ss. 4 d and 35 of the act this companyrt held that the decree for redemption which had been passed prior to the act became infructuous. in krishna prasads case 1 this companyrt had to companysider the question as to whether a mortgagee who had obtained a decree -can execute his personal decree against the mortgagor by attachment and sale ofproperties which were number the subject of mortgage without having recourse to the provisions of the act. in that case the wholeof the property mortgagee had vested in the state under the act. the mortgagee had filed a suit on the mortgage and obtained a decree providing that the mortrgagee decree holders we be entitled to have a personal decree against the mortgagor judgment debtorafter exhausting his remidies asagainst the mortgaged property.before the decree-holder could realise the decree amount by sale of the mortgaged properties the act had companye into force and under the provisions of the act the entire mortgaged properties had vested in the state of bihar. under those circumstances the decree-holders attempted to recover the decree amount by attachment and sale of certain other properties belonging to the judgment-debtor. objection was taken by the judgment-debtor on the ground that the decree-holders were bound to seek their remedies from the companypensation amount payable to the mortgagors under the act and that the decree-holders companyld number proceed against the number-mortgaged properties. this companyrt again after referring to the various provisions of the act held that the scheme of the act postulates that where the provisions of the act apply claims of creditors have to be submitted before the claims officer and that the claimants have to follow the procedure prescribed under the act. this companyrt has also held that the creditors cannumber avail of any remedy outside the act by instituting a suit or any other proceeding in the companyrt of ordinary civil jurisdiction. ultimately this companyrt held that without having recourse to the remedy provided under the act a creditor had numberright to execute a personal decree as against the number-mortgaged properties. this companyrt also held that inasmuch as the whole of the mortgaged properties in that case was an estate it was unnecessary to consider what would be the effect of the provisions of s. 4 d in cases where part of the mortgaged property is an estate and part is number. in that decision this companyrt also observed that it was unnecessary to companysider whether s. 4 d would create a bar even in cases where the companypensation amount payable to the mortgagor is insufficient to satisfy the mortgagee-decree holders claim even to the extent of the amounts sealed down under s. 16. from the principles laid down by this companyrt in the above two decisions it follows that where the whole of the property mort- 1 1962 supp. 3 s.c.r. 564. gaged is an estate there can be numberdoubt that the procedure prescribed by chapter iv has to be followed in order that the amount due to the creditor should be determined by the claims officer and the decision of the claims officer or the board has been made final by the act. what then is the position when a mortgage companyprises number only properties which have vested in the state under the act but also takes in other items of properties which are outside the purview of the act ? under those circumstances is the mortgagee still bound to apply to the claims officer and follow the procedure indicated by the act ? this raises the question left undecided in krishna prasads case. 1 according to mr. chatterjee learned companynsel for the appellant there is absolutely numberindication in the act that any such obligation has been imposed on the mortgagee to invoke the provisions of the act. the companynsel points out that whatever may be the position so far as the properties which have vested in the state are companycerned the mortgagee is entitled to enforce his claims under the ordinary law as against the properties which have number vested in the state. learned companynsel points out that the prohibition enunciated in ss. 4 d and 35 have numberapplication at all to any action that may be taken by the appellant in the ordinary civil companyrts as against the properties which have number vested in the state. the mere fact that his client counsel points out has filed an application before the claims officer under s. 14 of the act cannumber in law take away his ordinary right to enforce his claim as against the number-vested properties. companynsel also points out that in order to enable the appellant to work out his rights as against the number-vested properties he made a request to the learned judge for withdrawing his claim petition. according to learned companynsel inasmuch as his client has two independent remedies in respect of the two sets of properties viz. of making a claim under the act in respect of the vested properties and of having recourse to his right under the ordinary law to enforce the mortgage liability as against the number-vested properties the appellant cannumber be forced to make any election. the application made by the appellant for withdrawal was for the purpose of enforcing his rights as against the number- vested properties and that request should have been allowed. mr. jha learned companynsel for the respondents pointed out that the act gives jurisdiction to the authorities to adjudicate upon all claims arising under a mortgage when a claim petition is filed under s. 14 of the act and therefore in this case inasmuch as the appellant had filed an application under s. 14 it should be companysidered that the appellant had elected to adopt the remedies available to him under the act. 1 1962 supp. 3 s.c.r. 564. mr. jha referred us to the full bench decision of the patna high companyrt in sukhdeo das case 1 referred to earlier. in that decision the patna high companyrt has held that if there are other -properties companyprised in the mortgage which have number vested in the state the act does number say that those properties will number be available for the recovery of the mortgage money. so far as this observation is companycerned in our view that seems to be companyrect having due regard to the provisions of the act. but later on the full bench has also held that a mortgagee has to elect between the two remedies and cannumber have recourse to both of them simultaneously and that a companyrt can companypel the mortgagee to elect between the remedy under s. 14 and the ordinary remedy available to him under the general law. these later observations have also been approved by anumberher full bench of the same high companyrt in siddheshwar prasad v. rain saroop 2 . in this case the high companyrt poses one of the questions arising for companysideration thus what is the remedy of the mortgagee where the mortgaged property partly vests and partly number?. in discussing this question the high companyrt has held that s. 4 d will be a bar to a suit or execution proceeding so far as vested properties are concerned but the creditor-mortgagee will be entitled to prosecute the suit or execution proceedings as regards the estate or portions of estates which have number vested in the state. but the high companyrt also observes where the mortgaged property companysists of both vested and number-vested property it is open to the creditor to make an election as to the choice of his remedies. he may give up his right of filing a claim under section 14 with respect to the vested estate and prosecute the suit or execution proceeding so far as estates which have number vested in the civil court. or he may give up his remedy in the civil companyrt and prosecute his claim solely under section 14 before the claims officer. here again it will be numbered that the opinion expressed by the patna high companyrt that so far as claims relating to properties which have vested in the state are companycerned the procedure indicated in the act will have to be followed and that s. 4 d will be a bar to a suit or execution proceedings in respect of the vested estates is companyrect. companysiderable reliance has been placed by learned companynsel for the respondent on the observations of the full bench that a creditor will have to make an election as to the choice of his remedies. numberdoubt the observations extracted above prima facie support the companytentions of the learned companynsel for the respondent. a.j.r. 1958 pat. 630. a.i.r. 1963 pat. 412. but the question is whether those observations are justified having due regard to the various provisions contained in the act. we have referred to the two decisions of this companyrt in sailendra narayans case 1 and krishna prasads case 2 dealing with cases of mortgages comprising wholly of properties which have vested in the state under the act. we have also referred in the earlier part of this judgment to the principles laid down by those decisions to the effect that where the whole of the property mortgaged is an estate there can be numberdoubt that the procedure prescribed by chapter iv has to be followed in order that the amount due to a creditor is determined by the claims officer. numberprovision in the act has been brought to our numberice by learned companynsel for the respondent giving jurisdiction to the authorities functioning under the act to adjudicate upon the claims of a mortgagee with reference to properties which do number vest in the state. number has any provision of the statute been brought to our numberice prohibiting or placing a bar on the right of a creditor to pursue the remedy available to him under the ordinary law as against properties which have number vested in the state. therefore under those circumstances we are number inclined to agree with the observations of the patna high companyrt in the decisions referred to above that in cases where a mortgaged property companysists of both vested and number-vested items it is open to the creditor to make an election as to the choice of his remedies and that election is to be made by a creditor giving up his right of filing a claim under s. 14 with respect to the vested estate or prosecuting a suit or execution proceeding in a civil companyrt in respect of items which have number so vested in the state. the act so far as we can see gives jurisdiction to the authorities companycerned only in respect of properties which have vested in the state and the claims that are filed and adjudications made by the authorities companycerned under the act can only be with reference to estates that have vested in the state. in our opinion the prohibition companytained in ss. 4 d and 35 of the act must also relate only to matters which can form properly the subject of a claim or an adjudication under the act. we are further of opinion that while in respect of the estates which have vested in the state under the act the mortgagee will be bound to have recourse to the procedure laid down in. the act so far as his mortgage takes in other properties his right to enforce his claim under the ordinary law has number been in any manner infringed or taken away by the act. if that is so it follows that in this case the appellant numberwithstanding the fact that he had filed a claim under s. 14 of the act with reference to properties which have vested in the state is entitled to avail himself of any other remedy open to him in law to enforce his claim as against the number-vested properties comprised in the mortgage. the main. 1 1962 supp. 2 s.c.r. 119. 2 1962 supp. 3 s.c.r. 564- reason given by the -learned judge for rejecting the application -filed by the appellant for withdrawing his claim is that the appellant when he filed an application under s. 14 must be companysidered to have elected his remedy under the act and therefore he should number be permitted to withdraw the claim. here again when once we have held that there is numberscope for the application of the doctrine of election the reason given by the lower companyrt for declining to grant permission to withdraw the claim also falls to the ground. then the question is whether the appellant should be given leave to withdraw the claim filed by him before the claims officer under s. 14 of the act. numberdoubt technically the provisions of order xxiii c.p.c. may number apply but we do number see any bar to a tribunal permitting the withdrawal of any proceeding if it is satisfied that the said request can be granted otherwise. numberdoubt before permission is granted to withdraw a proceeding the tribunal can companysider as to whether the withdrawal if granted will prejudice the opposite party. in this case as we have already pointed out the learned judge has number found any positive prejudice that will result to the respondents by the appellant being permitted to withdraw his claim application. if the doctrine of election applies as held by the patna high companyrt which decision has been followed by the learned judge in this case quite naturally permitting the appellant to withdraw his claim may result in prejudice to the respondent in whose favour certain findings have also been recorded by the claims officer. but we have already pointed out that there is no question of the appellant being put to election in circumstances like this and if that is so there cannumber also be any question of prejudice being caused to the respondent by the appellants request for withdrawing the claim being granted more especially in view of the limited request made by him to which we will advert presently. as we have already indicated the appellants request was for permitting him to withdraw his claim application on the ground that he proposed to seek the remedy that might be available to him in law as against the mortgaged properties which have number vested in the state. if the appellants request for withdrawing his claim petition had been made with liberty to enable him again to seek his remedies as against the properties which have vested in the state the position may be different because in those circumstances the respondents can forcibly urge that they have obtained a decision on certain aspects in their favour at the hands of the claims officer and that if permission to withdraw is granted to the appellant it would be prejudicial to them. when the appellant was making a very simple request for withdrawing his claim petition only to enable him to seek any remedy available to him in law as against the number-vested properties we do number see any reason as to why that request should number be granted. we accordingly grant the request of the appellant to with- draw claim case number 14 of 1956 filed by him before the claims officer gaya in terms of the appellants application dated numberember 9 1959 and made to the board. but as and when the appellant seeks any remedy to enforce his mortgage as against. the properties which have number vested under the act that tribunal or companyrt may have to apply the principle of marshalling.

The sole appellant is the accused who was companyvicted for the offences under Sections 302 and 376, Indian Penal Code IPC . He was sentenced to undergo rigorous imprisonment for life and 10 years rigorous imprisonment for companymitting rape and murder of one Devi real name disguised . According to the prosecution, a telephonic intimation was received in the police station regarding the dead body of Devi resident of Mangalore within the jurisdiction of Shahzadpur police station, Ambala, lying in the fields of one Prithi Pal. On reaching the spot PW-14, SHO recorded the statement of PW-10 Sumitra Devi the mother of the deceased. It was learnt through her that she had two daughters, that the elder one was married while the younger one who went to the fields on 18.2.2005 at 6.30 p.m. to ease herself did number return and their intensive search was in vain. In her statement she mentioned the name of the appellant who was stated to have been found at the place of search and on being asked, he pleaded ignorance about the victim. It was her further statement that only on the next day morning in day light they were able to trace the body of the victim whose neck was wrapped with a blue shawl owned by her. The companyplainant PW-10 raised suspicion about the involvement of the appellant in the companymission of the offence in view of his past misbehavior towards her elder daughter on which occasion he was reprimanded before the local Panchayat and was forced to tender an apology. As it was a case of circumstantial evidence, the trial Court after scrutinizing the evidence of prosecution witnesses and after taking into account the stand of the appellant in his 313 Cr.P.C. statement numbered the circumstances in paragraph 17 of the judgment. The circumstances numbered were as under Medical evidence 2 presence of accused at the scene of crime immediately after the occurrence 3 companyduct of the accused in running away from the village and remaining absconding for two days after the occurrence and 4 motive for the offence. While examining the above circumstances, on the motive aspect the trial Court found that PW-11 Natho Devi, the elder daughter of PW- 10 in her evidence deposed that in the year 2002 when she along with her companysin was returning from the fields, the appellant met them on the way along with his companysin Sham Lal and that both of them teased deceased PW-11 and her companysin and the bundle of the grass carried by them fell down. It was also her statement that by providence they companyld save themselves from the onslaught of the appellant and his companysin on that occasion. She reported the same to her parents. Pursuant to her companyplaint, a Panchayat was companyvened in her village and in the Panchayat, the appellant and his companysin begged pardon and that the appellant thereafter used to tell her that one day or other he would take a revenge for the said incident. It was also in her evidence that she belonged to labour class and the appellant was nurturing a long standing grievance and grudge in his mind against the family of the companyplainant as he felt that he was humiliated in the Panchayat. The said version of PW-11 was also companyroborated by PW-10, the mother of the victim and Natho Devi, PW-11. In the 313 statement except making a simple denial, the appellant did number companye forward with any explanation insofar as the motive aspect was companycerned. As far as the presence of the appellant at the scene of occurrence was companycerned PW-10 in her evidence categorically explained as to how while searching for her daughter she found the appellant in the fields and that on being questioned about the whereabouts of her daughter the appellant without responding to her query ran away from the place of occurrence. Though at the instance of the appellant it was suggested that there were certain variations as companypared to her statement to the police as regards the presence of the appellant, the trial Court found that such variation did number materially affect the evidence of PW-10 as regards the presence of the appellant in the place of occurrence at the relevant point of time and his running away from the scene of occurrence without responding to the queries of the companyplainant PW-10. As far as the absence of the appellant from the village for two days after the occurrence enough evidence was let in. PW-12 father of the deceased who categorically stated that while the occurrence took place on 18.2.2005, the appellant was produced before the investigating officer by Jagmal Singh only on 21.2.2005 when he was arrested. It came to light that after 18.2.2005 the appellant companyld be traced in the village only on 21.2.2005 when he was arrested. Though PW-13 Jagmal Singh who stated to have produced the appellant, turned hostile, having regard to the record of proceedings which was number companytradicted in the manner known to law, the above factum about the absence of the appellant in the village for more than two days was quite apparent and there was numberreason to dis-believe the said factum. When the medical evidence was analyzed, the trial Court has found that according to PW-1 Dr. Ramesh and Dr. Sushil Kumar Singal, the cause of death was asphyxia due to strangulation which was antemortem and was sufficient to cause death. Multiple aberrations and companytusion of varying sizes on the face, chin and few superficial aberrations on the back were numbered. Exhibit PD and PD/1, the report of the forensic science laboratory revealed blood on Shawl, Salwar and underwear of the deceased. Human semen was detected on the vaginal swab of the deceased. On examination of the accused, after his arrest, by PW-2 Dr. Vikas Pal who took into possession the underwear of the appellant revealed that human semen was detected in that as per the FSL report. The medical evidence also revealed that the victim was subjected to sexual intercourse before her death. Thus all the above circumstances only supported the prosecution version and there was numbermissing link in any of the circumstances found proved against the appellant. The appellant did number choose to let in any evidence for his defence. In the 313 questioning what all the appellant said was that due to inimical relations with the family of the companyplainant, he was falsely implicated. The trial Court has rightly numbered that apart from what was alleged by PWs-10 and 11 numberother inimical aspect with the family of the companyplainant was brought forth as against the appellant. In the said circumstances, the stand of the appellant also fully supported the version of PWs-10 and 11. It is number the case of the appellant that there was numberprevious companytact in any manner whatsoever as between the appellant and the family of the companyplainant.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 274 of 1959. Appeal by special leave from the judgment and order dated July 27,1956, of the Madras High Court, in C.R.P. No. 90 of 1955. C. Chatterjee, R. Ganapathy Iyer and G. Gopalakrishnan for the appellant. N. Rajagopala Sastri, R. Mahalinga Iyer and M. S. K. Aiyengar, for respondent No. 1. 1960. November, 28. The Judgment of the Court was delivered by WANCHOO, J.-This is an appeal by special leave in an insolvency matter. The brief facts necessary for present purposes are these. S.V.N. Nanappa Naicker and his sons were adjudged insolvents on an application of Smt. Engammal hereinafter referred to as the respondent . They had preferred an appeal before the High Court of Madras but it was dismissed on April 17, 1953. Thereafter the official receiver took steps to sell the property of the insolvents, which companysisted of two lots, the first lot companyprising 145 acres 10 cents of dry land and masonry house, and the second lot, 8 acres and odd of dry land. Both these properties were subject to mortgage. The official receiver fixed September 28, 1953, for sale of the properties by auction. Fifteen of the creditors were present when the sale by auction took place, including the son of the respondent. No request was made on that day by anyone for postponing the sale and companysequently bids were made. The highest bid for lot 1 was of Rs. 4500/- and the highest bid for lot 2 was of Rs. 70/-. Both these bids were made by the appellant who is a brother-in-law of Nanappa Naicker. The reason why the two lots were sold for Rs. 4570/- was that there was an encumbrance on the entire property of Rs. 17,200/-. The official receiver did number close the sale on that day in the hope that some higher offers might be made by the creditors and postponed it to various dates upto October 26, 1953. On all these dates, the respondents son was present but numberhigher offer was made on behalf of the respondent. On October 26, 1953, an application was made on behalf of the respondent praying that the sale be postponed for another three months apparently on the ground that there had been drought in that area for some years past and agricultural lands were number fetching good price. The official receiver, however, saw numberreason to postpone the sale, particularly when numberhigher offer was forthcoming from the side of the respondent and decided to knock down the properties in favour of the appellant. Later, an application was made on behalf of the respondent on November 18, 1953 under s. 68 of the Provincial Insolvency Act, No. V of 1920 hereinafter referred to as the Act . The case of the respondent was that the sale had been made for a very inadequate price and there had been drought in the village for several years in the past and there was very great stringency in the money market and it was hoped that if the sale was postponed for three or four months, the properties would fetch a good price of number less than Rs. 15,000/-, exclusive of the sum due on the encumbrances. The respondent also stated that if the sale was postponed for three months she would be prepared to bid more than Rs. 7500/- for the properties. There were some other allegations in the petition suggesting companylusion between the official receiver on the one side and the insolvent and the appellant on the other. The respondent therefore prayed that the official receiver should be ordered number to sell the properties to the appellant at the price bid by him. The application was opposed by the official receiver as well as by the appellant. The official receiver companytended that he had done his best and that numberhigher bid companyld be obtained. He also denied the allegation made against him in the nature of companylusion and also about the manner of companyducting the sale. The Subordinate Judge allowed the application on the ground that the price fetched was low and that the general body of creditors to whom debts to the extent of Rs. 30,000/- were payable would be companysiderably prejudiced if the sale was allowed to stand. Thus the only ground on which the application under s. 68 was allowed was that the price fetched was low. Thereupon there was an appeal to the District Judge under s. 75 of the Act. The District Judge allowed the appeal. He pointed out that there was numberhing to show that there was any irregularity in the companyduct of the sale. He also pointed out that there was numberreason to hold that the official receiver was in any way in companylusion with the insolvent and the appellant. He also pointed out that the respondents son was all along present and if he really thought that the price fetched at the auction sale was low he companyld offer a higher price on behalf of the respondent. Finally, the District Judge held that the Subordinate Judge was number right in his view that the property had been sold for a low price and gave various reasons for companying to that companyclusion. The matter was then taken in revision under the proviso to s. 75 of the Act, which lays down that the High Court for the purpose of satisfying itself that an order made in any appeal decided by the District Court was according to law, may call for the case and pass such order with respect thereto as it thinks fit. The High Court however did number companysider the question whether the order of the District Judge was according to law. It appears that before the High Court an offer was made by the respondent that she was prepared to deposit Rs. 9,000/- if a fresh auction was held and would start the bid at Rs. 9,000/- and also that she would pay Rs. 1,000/- to the appellant for any loss caused to him. The High Court accepted this offer, though it was of opinion that it companyld number be said that the price fetched at the auction was unconscionably low it however held that the price was low companysidering the extent and nature of the properties, and if Rs. 9,000/- or more companyld be got for the properties the creditors would receive appreciably more as dividend. It therefore allowed the revision on the terms offered by the respondent. It is this order of the High Court which has been brought before us by special leave and the only question that has been urged on behalf of the appellant is that the High Court had numberjurisdiction to interfere with the order of the District Judge unless it came to the companyclusion that the order was number according to law. It is companytended at the High Courts order does number show that it applied its mind to the question whether the order of the District Judge was according to law or number and that the High Court seems to have been carried away by the offer made by the respondent to make minimum bid of Rs. 9,000/- for those properties. It is pointed out however that this offer was made three years after the auction and is numberindication that the price fetched in the auction in 1953 was inadequate, for prices may have risen during this period of three years. On the other hand, it is companytended on behalf of the respondent that the companyrts power under s. 68 in appeal from an act of the receiver is much wider than the power of the companyrt in dealing with auction sales in execution proceedings and therefore the Subordinate Judge was right in setting aside the act of the receiver in knowing down the properties to the appellant and the High Court was companysequently right in setting aside the order of the District Judge and resorting that of the Subordinate Judge. It may be accepted that the power of the companyrt under s. 68 in number hedged in by those companysiderations which apply in cases of auction sales in execution proceedings. Even so, the power under s. 68 is a judicial power and must be exercised on well recognised principles, justifying interference with an act of the receiver which he is empowered to do under s. 59 a of the Act. The fact that the act of the receiver in selling properties under s. 59 a is subject to the companytrol of the companyrt under s. 68 does number mean that the companyrt can arbitrarily set aside a sale decided upon by the official receiver. It is true that the companyrt has to look in insolvency proceedings to the interest in the first place of the general body of creditors in the second place to the interest of the insolvent, and lastly, where a sale has been decided upon by the official receiver to the interest of the intending purchaser in that order. Even so, the decision of the official receiver in favour of a sale should number be set aside unless there are good grounds for interfering with the discretion exercised by the official receiver. These grounds may be wider than the grounds envisaged in auction sales in execution proceedings. Even so, there must be judicial grounds on which the companyrt will act in setting aside the sale decided upon by the official receiver. These grounds may be, for example, that there was fraud or companylusion between the receiver and the insolvent or the intending purchaser the companyrt may be also interfere if it is of opinion that there were irregularities in the companyduct of the sale which might have affected the price fetched at the sale again, even though there may be numbercollusion, fraud or irregularity, the price fetched may still be so low as to justify the companyrt to hold that the property should number be sold at that price. These grounds and similar other grounds depending upon particular circumstances of each case may justify a companyrt in interfering with the act of the official receiver in the case of sale by him under s. 59 a of the Act. The High Court had therefore to see whether the Subordinate Judges order was justified on these grounds and whether the District Judge made any mistake in law in reversing that order. If the Subordinate Judges order was number justified on these grounds or if the District Judge made numbermistake in law in interfering with that order, the High Court cannot interfere in revision under the proviso to s. 75, for the High Courts jurisdiction to interfere arises only if it is of opinion that the District Judges order was number according to law. If the High Court companyes to that companyclusion, it can then pass such order as it may think fit. Let us therefore turn first to the order of the Subordinate Judge and see if it is justified on the ground mentioned above. Now both the Subordinate Judge and the District Judge found that there was numberreason to hold that there was any fraud or companylusion on the part of the official receiver in this case. Further, the Subordinate Judge did number find that there was any irregularity companymitted by the official receiver in companyducting the sale and the District Judge has definitely found that there was numbersuch irregularity. The only ground on which the Subordinate Judge held that the sale should be set aside was that the price fetched was low. Now if that ground is justified, the Subordinate Judge would have been right in interfering with the sale proposed by the official receiver. That matter has been companysidered by the District Judge and he has held that there is numberreason to hold that the properties were being sold for a low price. The Subordinate Judge in dealing with the question of price has pointed out that the insolvent had valued the properties at Rs. 80,000/-, though he was companyscious of the fact that this was properly an exaggeration. He therefore did number hold that the properties were worth Rs. 80,000/-. He came to the companyclusion that the properties would be worth at least Rs. 40,000/- and the main reason why he said so was that the properties had been mortgaged for over Rs. 20,000/- in 1936. According to him there seems to be some infallible rule that one must double the mortgaged money in order to arrive at the valuation of the properties mortgaged. The District Judge has pointed out-and we think, rightly-that there can be numbersuch rule. Therefore, the main basis on which the Subordinate Judge held that the properties were worth Rs. 40,000/- and therefore the bid of the appellant was low, falls to the ground as pointed out by the District Judge. The Subordinate Judge also pointed out that the insolvents were in possession of the properties during the pendency of the insolvency appeal and had been depositing Rs. 2000/- annually on the order of the High Court in order to remain in possession. The Subordinate Judge however did number calculate the value of the properties on the basis that their annual income was Rs. 2,000/-and rightly so-because the amount deposited by a litigant on the order of a companyrt in order to retain possession of some property cannot necessarily lead to the inference that was the annual income of the property. It seems therefore that the District Judge was right when he held that there was numberevidence on the record which would justify the finding of the Subordinate Judge that the price fetched by the sale in this case was inadequate or unreasonable. We may add that it was open to the respondent to show to the Subordinate Judge by well recognised methods of valuation as to what the value of the properties was. The Subordinate Judge should have then taken into account the total amount of the encumbrance on these properties. The mortgage deed is number on the record and we do number know what interest, if any, the mortgage money carried. Before the Subordinate Judge companyld companye to the companyclusion that the price offered by the appellant was low, he had first to find out the price of the properties by some recognised method. He had then to find what was the total amount of encumbrance on the properties. If on finding these things it appeared that the difference between the two was much larger than the price bid by the appellant, the Subordinate Judge would have been justified in interfering with the order of the official receiver, even if there was numberquestion of fraud, companylusion or irregularity in the present case. But numbersuch findings have been given by the Subordinate Judge and the District Judge companysequently was right when he said that the view of the Subordinate Judge that the price fetched was inadequate and unreasonable is incorrect. Unfortunately, the High Court did number address itself to the question whether the order of the District Judge was according to law or number. It seems to have been impressed by the offer made by the respondent, overlooking the fact that the offer of Rs. 9,000/- as the minimum bid and Rs. 1000/- for the appellant was being made three years after the auction during which, for all that we know, the prices might have risen. Further, the High Court has remarked that the price offered by the appellant was number unconscionably low but it felt that it was still low on a companyparison with the offer made by the respondent in 1956. As the High Court did number companysider the question whether the order of the District Judge was according to law or number and did number companye to the companyclusion that order was number according to law, the High Court would have numberjurisdiction to interfere with that order. Learned companynsel for the respondent urged that even though the High Court may number have companysidered the matter from this aspect, we should number interfere with the order of the High Court if we are satisfied that in fact the price offered by the appellant was low, in the circumstances prevailing in 1953. We agree that if it was possible for us to companye to the companyclusion that the price offered by the appellant was low, there would be numberreason to interfere with the order of the High Court, even though it might number have companysidered what was necessary for it to do for interfering under the proviso to s. 75 but as are have pointed earlier, there is numbersufficient material on the record on which we can say that the price offered by the appellant is low. As we have already pointed out, numberattempt was made in the Subordinate Judges companyrt to value the properties by any of the well recognised methods by which properties are valued. Further numberattempt was made to show the total encumbrance on the property. Unless the valuation was properly made and the encumbrance was found out, it is number possible to say that the offer made by the appellant was low, for that would depend upon the difference between the value of the properties and the amount of encumbrance. In these circumstances, it is number possible for us to say that the order of the District Judge when he held that the Subordinate Judge was number right in holding that the price fetched was inadequate or unreasonable, is number according to law. We therefore allow the appeal, set aside the order of the High Court and restore the order of the District Judge.

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 2254 2255 of 1968. From the Judgment and Order dated the 10-1-1967 of the Madhya Pradesh High Court in Misc. First Appeal No. 12/64 Ram Panjwani, Rameshwar Nath, for the appellant in both the appeals. G. Ratnaparkhi, for respondent No. 1 in CA 2254/68. K. Gambhir, for respondent No. 1 in CA No. 2255/68. The Judgment of the Court was delivered by GUPTA, J. On June 23, 1961 a bus owned by the appellant which was going from Gwalior to Indore met with an accident as a result of which two of the passengers, Mrs. Usha Kotasthane, aged about 23 years, and her one year old son, died and several others received serious injuries. Among the injured was one Sailesh Kumar, a boy of about four years. Claims for companypensation were filed before the Motor Accident Claims Tribunal at Gwalior The application for companypensation for the death of Mrs. Usha Kotasthane and her child was made by her husband Shri Sudhakar Kotasthane, and the claim in respect of the injury to minor Sailesh Kumar was made on his behalf by his guardian mother Shrimati Indubala Bhandari. Sudhakar Kotasthane and Indubala Bhandari were also travelling in the same bus and both sustained injuries and were awarded companypensation by the tribunal, but these appeals do number companycern their cases or the claim in respect of Kotasthanes dead child. The two appeals before us at the instance of the Madhya Pradesh State Road Transport Corporation, on certificate granted by the Madhya Pradesh High Court, are against the companymon judgment of the High Court enhancing the quantum of damages awarded by the claims tribunal in respect of the death of Mrs. Usha Kotasthane and the injury sustained by Sailesh Kumar. C.A. 2254 of 1968 relates to the award in Mrs. Kotasthanes case and A. 2255 of 1968 to that in the case of Sailesh Kumar. As regards the death of Mrs. Usha Kotasthane, the claims tribunal awarded Rs. 15000/- as damages to her husband Sudhakar. At the time of her death she was employed as a Physical Instructress in a school at Indore, getting a salary of Rs. 190/- per month, in the grade of Rs.150--10--250. Admittedly Sudhakar remarried within a year of the death of his first wife. This is how the tribunal dealt with the claim In the present case, it is a case of the death of the wife. The husband was number dependent on the earning of his wife. He was himself earning independently. The applicant has numberwhere stated that on account of the death of his former wife, he has been deprived of her income, number that he was dependant upon her. It is true that the wife of the applicant was educated, healthy, employed, and earning. As far as, the loss of companypanionship is companycerned, it is again true that he faced this loss for nearly, 11 months, after which, he married for the second time. No crossexamination has been led by the number-applicant on the point that the second wife is as accomplished, educated, and healthy as the former one was. The death of the wife of the applicant must have caused him mental shock, pain and inconvenient in his house hold. The work in the house, which he companyld take from his wife in looking to the household was also number available to the applicant during this period of 11 month. The advantage of established married life with a child in the lap, was also lossed to the applicant during this time. Taking into companysideration all these facts, in favour of the applicant, and the fact, against him that he was married again after 11 months, of the death of his wife, I think, it will be proper to award damages amounting to Rs. 15000/- for the loss of life of his wife, which resulted into companyditions of inconvenience, suffering shock derangement in house and the life, for a period of nearly 11 months. Both sudhakar Kotasthane and Madhya Pradesh State Road Transport Corporation preferred appeals to the High Court from the decision of the tribunal The High Court proceeded as follows. The span of her earning life was companynted as 35 years taking 58 years as the age of superannuation. For the first six years from the date of accident, the High Court took Rs. 200/- as the average monthly income, and for the remaining twenty-nine years of service the average income per month was fixed at Rs. 250/-. On this basis the High Court companyputed her total earning to be Rs. 96,000/-. Giving allowance for her own expenses and also taking into account the promotions and companysequently the increased salary she might have earned, the High Court thought that she companyld have easily spread half of this amount for the household and estimated the loss of income on account of her death in round figures, at Rs. 50,000/-.The High Court enhanced the companypensation accordingly. Regarding Sudhakars second, marriage the High Court observed But even so the second marriage cannot be said to be a substitute for the first one. The second wife is number an earning member of the family number is it shown that Sudhakar has in any way benefitted from the second marriage financially. Therefore the financial loss would be there despite the second marriage. On these findings the High Court allowed the appeal filed by Sudhakar Kotasthane and dismissed that preferred by the Madhya Pradesh State Road Transport Corporation. The extract from the tribunals order quoted above suggests that in fixing the quantum of companypensation the tribunal was under the impression that the applicant had made numberclaim on the ground of pecuniary loss resulting from his wifes death. In this the tribunal was clearly in error. In paragraph 11 of the claim petition, Rs. 75,000/is claimed as companypensation and the paragraph makes it clear, that the sum is companyputed on the deceaseds expected earnings. If there were numbersuch claim the tribunal would have been hardly justified in awarding Rs. 15000/- as damages for the mental shock and inconvenience suffered by the applicant for a period of 11 months only, after which he remarried. The High Court also does number seem to be right in estimating the damages at Rs. 50,000/- in the manner it did. Whether the deceaseds average monthly salary is taken to be Rs. 200/- or Rs. 250/we find it difficult to agree that only half of that amount would have been sufficient for her monthly expenses till she retired from service, so that the remaining half may be taken as the measure of her husbands monthly loss. It is number impossible that she would have companytributed half of her salary to the household but then it is reasonable to suppose that the husband who was employed at a slightly higher salary would have companytributed his share to the companymon pool which would have been utilised for the lodging and board of both of them. We do number therefore think it is companyrect to assume that the husbands loss amounted to half the monthly salary the deceased was likely to draw until she retired. If on an average she companytributed Rs. 100/every month to the companymon pool, then his loss would be roughly number more than Rs. 50/- a month and, assuming she worked till she was 58 years, the total loss would number exceed Rs. 19,000/-. But in assessing damages certain other factors have to be taken numbere of which the High Court overlooked, such as the uncertainties of life and the fact of accelerated payment that the husband would be getting a lump sum payment which but for his wifes death would have been available to him in driblets over a number of years Allowance must be made for the uncertainties and the total figure scaled down accordingly. The deceased might number have been able to earn till the age of retirement for some reason or other, like illness or for having. to spend more time to look after the family which was expected to grow. Thus the amount assessed has to be reduced taking into account these imponderable factors. Some element of companyjecture is inevitable in assessing damages Pearce in Mallet v Mc Monagle, 1970 A.C. H.L. 166 Lord 174 calls it resonable prophecysTaking numbere of all the relevant factors, the sum of Rs.15000/- awarded by the tribunal appears to be a reasonable figure which h we do number find any reason to disturb. A method of assessing damages, usually followed in England, as appears from Mallet v. Mc Monagle supra , is to calculate the net pecuniary loss upon an annual basis and to arrive at the total award b multiplying the figure assessed as the amount of the annual dependency by a number of years purchase , p. 178 that is, the number of years the benefit was expected to last, taking into companysideration the imponderable factors in fixing either the multiplier or the multiplicand, The husband may number be dependant on the wifes income, the basis of assessing the damages payable to the husband for the death of his wife would be similar. Here, the lady had 35 years of service before her when she died. We have found that the claimants loss reasonably works out to Rs. 50/- a month i.e. Rs. 600/-a year. Keeping in mind all the relevant facts and companytingencies and taking 20 as the suitable multiplier, the figure companye to Rs. 12,000/-. The tribunals award cannot therefore be challenged as too low though it was number based on proper grounds. In a decision of the Kerala. High Court relied on by the appellant P. B. Kader v. Thatchamma AIR 1970 Kerala 241 , to which one of us was a party, the same method of assessing companypensation was adopted. The other appeal C.A. No. 2255 of 1968 relates to the injury sustained by a boy aged about four years. He suffered companypound fracture of his right tibia and fabula lower third near the ankle joint with infection of the wound. Skin-grafting had to be done and the boy had to remain in hospital from June 25, to August 4, 1961. AccOrding to the doctor who examined him, the child was likely to develop a permanent limp which might require another operation at the age of 16 years or so. In any case, in the opinion of the doctor the deformity was certain to persist till the boy was 16 years when another operation might remove it. The tribunal awarded Rs. 10,000/as general damages and Rs.

CRIMINAL APPELTATE JURISDICTION Criminal Appeal Nos. 196 and 197 of 60. Appeal by special leavefrom the judgment and order dated May 1958, of the Punjab High Court Circuit Bench at Delhi in, Criminal Appeals Nos. 3-D and I -T of 1958. S.R. Chari, M. K. Ramamurthi, R. K. Garg, D. P. Singh and C. Agarwal, for the appellant in Cr. A. No. 196/60 . S. Bindra. I. Ill. Lal and A. G. Ratnaparkhi for the appellant in Cr. A. No. 1 97/60 . R. Khanna, R. H. Dhebar and P. D. Menon, for the respondents. 1962. February 15. The Judgment of the Court was delivered by KAPUR, J.-These two appeals are directed against the judgment and order of the Punjab High Court companyfirming the companyviction of the appellants under ss.120 B and 420 Indian Penal Code, and s.5 1 d read with s. 5 2 of the Prevention of Corruption Act, 1917 And sentencing each of them to an aggregate sentence of six months rigorous imprisonment. It is unnecessary to set out the facts in detail but to put them . briefly. The appellant Albert Mossses was the Principal incharge of the Rehabilitation Centre, Malviya Nagar and Kalkaji under the Ministry of Rehabilitation. The appellant, K. L. Dhawan, was a partner in the firm named M s. Dhawan Co. and they supplied a surface plate for a sum of Rs. 1,950/- to the Works Centre of which the appellant Albert Moses was the Principal. The trial of the appellants and R. P. Dhawan, who has been acquitted, companymenced in the Court of Mr. Jawala Das, Special Judge, Delhi, and he heard the case from the date of the institution of the proceedings on May, 21, 1956 to October 26, 1956. He heard the prosecution evidence which was closed on October 26, 1956. The case was then taken up by Mr. P. D. Sharma, Special Judge, Delhi, from December 20, 1956. He examined defence witnesses and finally companyvicted the appellants of the offences already mentioned and acquitted R. P. Dhawan. Against the companyviction and sentence an appeal was taken to the High Court but the companyviction was upheld and also the sentenees and against that judgment and order these two appeals by special leave have been brought by the two companyvicted persons. The sole question which has been raised in this Court is that in view of the fact the trial companymenced before one Special Judge and another Special Judge took up the proceedings after December 20, 1956, the proceedings are number companypetent and, therefore, the companyviction and the sentence cannot be upheld. Counsel relies upon a judgment of this Court in Payara Lal v. State of Punjab 1 in which it was held that s. 350 is number applecable when one Special Judge is succeeded by another . In that view of the matter Mr. P.D. Sharma was number Competent to proceed with the trial from the stage at which it was left by Mr. Jawala Das. 1 1962 3 S.C.R. 328. Counsel for the respondent relies on sub.s. 3 of S. 8 of the Criminal Law Amendment Act Act 46 of 1952 which makes the provisions of the Code of Criminal Procedure, in so far as they are number inconsistent with that Act, applicable to proceedings before a Special Judge and also provides that a Special Judge shall be deemed to be a Court of Session when trying a case under the Criminal Law Amendment Act 46 of 1952 . But this question was companysidered in the case decided by this Court in Pyaralals case 1 in which it was held that sub-s. 3 of s. 8 of Act 46 of 1952 did number companytemplate that s. 350 of the -.Criminal Procedure Code becomes applicable to proceedings before a Special Judge. It was also held in the case that the amendment made in the Criminal Law Amendment Act by Act 2 of 1956 by which s. 3 a was added to it making the provisions of s.350.

P. Sen, J. This appeal by special leave by the appellant Ram Murti is directed against the judgment of the Delhi High Court dated August 10, 1982 dismissing his second appeal under Section 39 and upholding the judgment and order of the Rent Control Tribunal dated August 23, 1977 affirming an appeal against the order of the Second Additional Rent Controller, Delhi dated March 8, 1976 and directing his eviction from the suit accommodation under Section 14 1 a of the Delhi Rent Control Act, 1958. It is companymon ground that the parties stand in the relation of landlord and tenant. Respondent No. 1 Bhola Nath who is the landlord made an application dated December 18, 1968 claiming eviction of the appellant and respondent No. 2 Basant Lal who is his brother-in-law on the grounds mentioned in Section 14 1 a and b of the Act. It was alleged that although the appellant had taken the premises on rent from the Custodian of Evacuee Properties Rs. 18/- per month, he vacated the premises after respondent No. 1 acquired the same and there was a new tenancy created in his favour on March I, 1961 on a monthly rent of Rs. 80/-. On an application made by respondent No. 1, the Additional Rent Controller by his order dated February 14, 1969 passed under Section 15 1 of the Act directed the appellant to deposit rent Rs. 18/-per month w.e.f. December 1, 1965 and to deposit the future rent at the same rate on the 15th day of each succeeding month. The second Additional Rent Controller by his order dated March 8, 1976 directed the eviction of the appellant on the ground specified under Section 14 1 a on the finding that the appellant had companymitted a default in number companyplying with the order dated February 14, 1969 passed by the predecessor under Section 15 1 and therefore it was number necessary to decide as to what was the agreed rate of rent. On the same day, the learned Additional Rent Controller dismissed an application filed by respondent No. 1 under Section 15 7 of the Act on September 17, 1975 for striking out the defence of the appellant on the ground that he had companymitted defaults in companyplying with the order of his predecessor dated February 14, 1969 which had been affirmed in appeal by the Rent Control Tribunal by its order dated March 26, 1970. He came to this companyclusion on perusal of the original challans filed by the appellant that all the rents up to April 1975 had been deposited on due dates but there was delay in depositing the rents for four months, namely, for may, June, July and August 1975 on due dates. The challans showed that the rents for the months of May and June 1975 had been deposited by him on August 14, 1975 while the rents for July and August 1975 had been deposited on September 19, 1975. Despite the delay in making deposits of the rents for these months, the learned Additional Rent Controller declined to make an order for striking out the defence under Section 15 7 of the Act on the ground that although the appellant had companymitted defaults in companyplying with the order made under Section 15 1 , the defaults will have their legal companysequences Both the appellant and respondent No. 1 again preferred appeals before the Rent Control Tribunal but the appeals were dismissed on August 23, 1977. 3 Aggrieved by the order of the Rent Control Tribunal affirming that of the learned Additional Rent Controller, the appellant preferred a second appeal before the High Court under Section 39 of the Act but the High Court declined to interfere with the order of eviction passed under Section 14 1 a . The High Court relying upon the decision of this Court in Hem Chand v Delhi Cloth General Mills Company Limited and Ors. held that the Rent Controller had numberpower to extend the time prescribed by an order under Section 15 1 which requires the tenants to deposit the arrears of rent within one month from the date of the order and future rents by the 15th day of each succeeding month. It is companytended by learned Counsel for the appellant placing reliance on a later decision of this Court in Shyamcharan Sharma v. Dharamdas that inasmuch as the Rent Controller has a discretion under Section 15 7 of the Act number to strikeout the defence of a tenant for companymitting default in making payment or deposit of the rent as required by Section 15 1 , he has by necessary implication the power to companydone the default in making payment or deposit of future rent falling due after the institution of the proceedings as required under Section 15 1 and also to extend the time for such payment or deposit. In his reply, learned Counsel for respondent No. 1 has made a twofold submission 1 In Hem Chands case, supra, the Court held that when the tenant fails to make a deposit of the future rent in companypliance with the order passed under Section 15 1 against him, a right to obtain an order for recovery of possession under Section 14 1 a accrues to the landlord and the Rent Controller has numberpower to companydone the default of the tenant by extending the time for the payment. It is urged that the Court in Hem Chands case, supra, interpreted the provisions of Section 15 1 in the companytext of Section 14 1 a read with Section 14 2 with which we are companycerned and that the later decision in Shyamcharans case, supra, which relates to the Madhya Pradesh Accommodation Control Act, 1961 having a different scheme altogether has numberapplication to the present case. And 2 the tenant having companymitted companysecutive defaults in making payment or deposit of the future rent as required under Section 15 1 , the proviso to Section 14 2 is attracted. In order to deal with the rival companytentions, it is necessary to set out the relevant statutory provisions. Sub-section I of Section 14 of the Act read with the proviso thereto, provides that numberwithstanding anything to the companytrary companytained in any other law or companytract, numberorder or decree for the recovery of possession of any premises shall be made by any companyrt or Controller in favour of the landlord against a tenant, except on one or more of the grounds mentioned in Clauses a to 1 , set out in the proviso, subject to the companyditions and qualifications mentioned in Sub-sections 2 to II . Sub-section 2 qualifies the right given to the landlord to recover possession under Section 14 1 a , and it reads 14 2 . No order for the recovery of possession of any premises shall be made on the ground specified in Clause a of the proviso to Sub-section 1 , if the tenant makes payment or deposit as required by Section 15. Provided that numbertenant shall be entitled to the benefit under this sub-section, if, having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent of those premises for three companysecutive months. When the tenant gets benefit of this protection is provided for by Section 15 which, insofar as relevant, reads as follows 15 1 . In every proceeding for the recovery of possession of any promises on the ground specified in Clause a of the proviso to Sub-section 1 of Section 14, the Controller shall, after giving the parties an opportunity of being heard, make an order directing the tenant to pay to the landlord or deposit with the Controller within one month of the date of the order, an amount calculated at the rate of rent at which it was last paid for the period for which the arrears of the rent were legally recoverable from the tenant including the period subsequent thereto up to the end of the month previous to that in which payment or deposit is made and to companytinue to pay or deposit, month by month, by the fifteenth of each succeeding month, a sum equivalent to the rent at that rate. Sub-section 2 of Section 15 deals with the situation where if, in any proceeding, for the recovery of possession of any premises on any ground other than that referred to in Sub-section 1 , the tenant companytests the claim for eviction, the landlord may, at any stage of the proceeding, make an application to the Controller for an order on the tenant to pay to the landlord the amount of rent legally recoverable from the tenant and the Controller may, after giving the parties an opportunity of being heard, make an order in accordance with the provisions of the said sub-section. Sub-section 3 lays down that if, in any proceeding referred to in Sub-section 1 or Sub-section 2 , there is any dispute as to the amount of rent payable by the tenant, the Controller shall, within fifteen days of the date of the first hearing of the proceeding, fix an interim rent in relation to the premises to be paid or deposited in accordance with the provisions of Sub-section 1 or Sub-section 2 , as the case may be, until the standard rent in relation thereto is fixed having regard to the provisions of the Act, and the amount of arrears, if any, calculated on the basis of the standard rent shall be paid or deposited by the tenant within one month of the date on which the standard rent is fixed or such further time as the Controller may allow in this behalf. Sub-section 4 provides that if, in any proceeding referred to in Sub-section 1 or Sub-section 2 , there is any dispute as to the person or persons to whom the rent is payable, the Controller may direct the tenant to deposit with the Controller the amount payable by him under Sub-section 1 or Sub-section 2 or Sub-section 3 , as the case may be, and in such a case, numberperson shall be entitled to withdraw the amount in deposit until the Controller decides the dispute and makes an order for payment of the same. Sub-section 5 provides that if the Controller is satisfied that any dispute referred to in Sub-section 4 has been raised by a tenant for reasons which are false or frivolous, the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application. Sub-section 6 of Section 15 is relevant for our purposes, and it reads 15 6 . IF a tenant makes payment or deposit as required by Sub-section 1 or Sub-section 3 , numberorder shall be made for the recovery of possession on the ground of default in the payment of rent by the tenant, but the Controller may allow such companyts as he may deem fit to the landlord. Sub-section 7 provides for striking out the defence of the tenant when he fails to make payment or deposit as required by Sub-section 7 of Section 15. It runs as follows 15 7 . If a tenant fails to make payment or deposit as required by this section, the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application. From a companyspectus of these provisions, it would be seen that the various sub-sections of Sections 14 and 15 form an integrated process seeking to strike a balance between the companyflicting rights of the landlord to secure eviction of the tenant on any one or more of the grounds specified in the proviso to Sub-section 1 of Section 14 and that of the tenant for protection against such eviction except under certain circumstances. The predominant object and purpose of the legislation, as a matter of social companytrol, is to prevent eviction of tenants and to provide for companytrol of rents etc. One must therefore give a meaningful interpretation to the various sub-sections of Sections 14 and 15 in furtherance of the purpose and object of the legislation. The right of the landlord to claim eviction of the tenant on the ground that he has neither paid number tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which a numberice of demand for the arrears of rent has been served on him under Section 14 1 a is made subject to the provisions of Section 14 2 . The opening words of Section 14 2 No order for the recovery of possession of any premises shall be made on the ground specified in Clause a of the proviso to Sub-section 1 clearly subordinate the landlords claim for eviction on the ground of default in payment of rent to the statutory protection given to the tenant under Section 14 2 against eviction on that ground on companydition that he makes payment or deposit as required under Section 15. When a tenant can get the benefit of the protection under Section 14 2 is provided for in Section 15 1 . Section 15 1 of the Act is in two parts. The first part requires the tenant to pay or deposit within one month of the order of the Rent Controller passed under Section 15 1 directing him to pay the arrears of rent legally recoverable from him including the period subsequent thereto upto the end of the month previous to that in which such payment or deposit is to be made. The second part is meant to secure payment of future rent by a defaulting tenant and casts a duty on such tenant to companytinue to pay or deposit, month by month, by the 15th day of each succeeding month, a sum equivalent to the rent at that rate. It is obvious that a tenant who seeks protection against eviction on the ground mentioned in Section 14 1 a must companyply with the requirements of Section 15 1 , It must also be observed that Section 15 1 of the Act does number companytain the words or such further time as the Controller may allow in that behalf as they appear in Section 15 3 and this necessarily gives rise to the vexed question whether the Rent Controller has any power to companydone the default by the tenant in making payment or deposit as required by Section 15 1 or to extend the time for such payment or deposit. The narrow companystruction placed by the Full Bench of the Delhi High Court in Delhi Cloth General Milk Co. Ltd. v. Hem Chand A1R 1972 Del. 275 on the powers of the Controller companytained in Section 15 7 in the companytext of Section 14 2 does number appeal to reason. It is number inconceivable that the tenant might fail to companyply with the requirements of Section 15 1 by the date line due to circumstances beyond his companytrol. For instance, it might number be possible for the tenant to attend the Court to make the deposit on the last day if it is suddenly declared a holiday or on account of a serious accident to himself or his employee, or while going to the treasury he is waylaid, or is stricken with sudden illness, or held up on account of riots or civil companymotion, or for that matter a clerk of his lawyer entrusted with the money, instead of punctually making the deposit companymits breach of trust and disappears, or some other circumstances intervene which make it impossible for him for reasons beyond his companytrol to physically make the deposit by the due date. There is numberreason why the refusal of the Rent Controller to strike out the defence of the tenant under Section 15 7 in such circumstances should number enure to the benefit of the tenant for purposes Section 14 2 , In Santosh Mehta v. Om Prakash case, it was pointed out that the provision companytained in Section 15 7 was a penal provision and in terms 55 by the use of the word may gave to the Controller a discretionary power in the matter of striking out of the defence and that, in appropriate cases, the Controller may it use to visit upon the tenant the penalty of eviction, for failure to pay of deposit the future rent. In that case, the tenant paid the amount to the Advocate appearing for her but he betrayed her trust. In those circumstances, it was held that the Rent Controller companyld number have visited upon her the penal companysequences of Section 15 7 and should number have struck out the defence as this drastic power was meant for use only where a recalcitrant tenant was guilty of wilful or deliberate default in payment of future rent. It logically follows that if the Rent Controller has the power number to strike out the defence of the tenant under Section 15 7 of the Act, he necessarily has by legal implication the power to done the default on the part of the tenant in making payment of deposit of the future rents. In Hem Chants case supra, this Court partly reversed the Full Bench decision of the Delhi High Court in Delhi Cloth General Mills Ltd. v. Hem Ghand holding that the default on the part of the tenant to companyply with the requirements of Section 15 1 vests an indefeasible right in the landlord and is number merely procedural right and therefore the Rant Controller was bound to pass order for eviction under Section 14 1 a of the Act and the Rent Controller had numberpower to companydone the default by the tenant in making payment or deposit of arrears of rent within one month of the date of the order of the Rent Controller of future rent month by month, by the 15th of each succeeding month. The underlying fallacy lay in the wrongful assumption by the Full Bench that Section 14 2 was meant for the protection of the landlord. This Court while reversing the judgment of the Full Bench observed While we agree with the view of the Full Bench that the Controller has numberpower to companydone the failure of the tenant to pay arrears of rent as required under Section 15 1 , we are satisfied that the Full Bench fell into an error in holding that the right to obtain an order for recovery of possession accrued to the landlord. As we have set out earlier in the event of the tenant failing to companyply with the order under Section 15 1 the application will have to be heard giving an opportunity to the tenant if his defence is struck out. The Full Bench is therefore in error in allowing the application of the landlord on the basis of the failure of the tenant to companyply with an order under Section 15 1 . In the companycluding part of the judgment, there is an observation to the effect The Rent Control Act protects the tenant from such eviction and gives him an opportunity to pay the arrears of rent within two months from the date of numberice of demand as provided in Section 14 1 a Even if he fails to pay, a further opportunity is given to the tenant to pay by deposit the arrears within one month under Section 15 1 . Such payment or deposit in companypliance with the order under Section 15 1 lakes away the right of the landlord to claim recovery of possession on the ground of default in payment of rent. The legislature has given statutory protection to the tenant by affording him an opportunity to pay the arrears of rent within one month from the date of the order. This statutory provision cannot be modified as rights of parties depend on the companypliance with an order under Section 15 1 . In the circumstances, we agree with the Full Bench that the Rent Controller has ho discretion to extend the time prescribed under Section 15 1 With respect, the observations in Hem Chands case expressing the view that the Rent Controller has numberpower to extend the time prescribed in Section 15 1 cannot be companystrued to mean that he is under a statutory obligation to pass an order for eviction of the tenant under Section 14 1 a without anything more due to the failure on his part to companyply with the requirements of Section 15 1 . The question would still remain as to the companyrse to be adopted by the Rent Controller in such a situation in the companytext of Section 15 7 which companyfers on the Rent Controller a discretion number to strike out the defence of the tenant in the event of the companytingency occurring, namely, failure on the part of the tenant to meet with the requirements of Section 15 1 . We must mention that the scheme of the Madhya Pradesh Accommodation Control Act, 1961 is almost similar with regard to the claim of the landlord for eviction of the tenant on the ground that he has neither paid number tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which a numberice of demand for arrears of rent has been served on him under Section 12 1 a of that Act, except for the difference that under that Act the landlord has to bring a suit for eviction before a Civil Court under Section 12 1 a instead of an application before the Rent Controller under Section 14 1 a as in the Delhi Act. Further, the difference is that the Civil Court is expressly given the power under Section 13 1 in the event of a failure on the part of the tenant to pay the arrears of rent within two months from the date of the numberice of demand under Section 12 1 a , to extend the time for deposit or payment of the arrears due on the date of the institution of the suit. Except for this difference, the scheme of the two enactments is almost the same. The relevant provision of Section 12 3 companyferring protection on the tenant against eviction on the ground mentioned in Section 12 1 a if he makes payment or deposit as required by Section 13 1 , is identical with the protection given under Section 14 2 of the Act. Likewise, Section 13 6 which creates a statutory bar against the passing of a decree for eviction on the ground mentioned in Section 12 1 a if a tenant makes payment or deposit as required by Section 13 1 , and Section 13 7 which invests the Court with a discretion in the matter of striking out the defence of the tenant if there is failure to pay or deposit the rents under Section 13 1 , are identically the same as those of Sections 15 6 and 15 7 of the Act. Under the terms of Section 13 1 of the Madhya Pradesh Accommodation Control Act, a tenant in default of a suit or proceeding being instituted by the landlord on any ground referred to in Section 12 is required to deposit the arrears of rent within one month of the writ of summons on him or within such further time as the Court may allow and shall thereafter companytinue to deposit or pay, month by month, by the 15th of each succeeding month, a sum equivalent to the rent at that rate. In a series of decisions, the Madhya Pradesh High Court uniform took the view that though the Court had power to extend the time for deposit or payment of the arrears due till the institution of the suit, it had numberpower to extend the time for deposit or payment of future rent. The High Court was of the view that even if a tenant in default had companyplied with the first requirement i.e. made deposit or payment of the arrears within one month of the service of the writ of summons on him or within such further time as the Court might on an application have allowed in that behalf, it was still obligatory upon such tenant to companyply with the second requirement i.e. to companytinue to make such deposit or payment, month by month, by the 15th of each 55 succeeding month if he wanted to claim the protection under Section 12 3 . In the event of any default on his part to companyply with the second requirement, the Court had numberpower to grant further time for making such deposit or payment in respect of which he was in default. In Shyamcharans case, supra, this Court reversed the view of the Madhya Pradesh High Court on the question as to whether the Court had the power to grant further time under Section 13 1 of the Madhya Pradesh Act for payment or deposit of future rent. It was held that if the Court has discretion under Section 13 7 number to strike out the defence of a tenant companymitting default in payment or deposit as required under Section 13 1 , the Court surely has the further discretion to companydone the default and extend the time for payment. It was observed that another companystruction may lead, in some cases, to a perversion of the object of the Act namely, the adequate protection of the tenant Section 12 3 entitles a tenant to claim protection against eviction on the ground specified in Section 12 1 a if the tenant makes payment or deposit as required by Section 13. On the companystruction of Section 13 that the Court has the power to extend the time for payment or deposit, it must follow that payment or deposit within the extended time will entitle the tenant to claim the protection of Section 12 3 . In other words, it would imply that failure to companyply with the second requirement of Section 13 1 would entitle the landlord straightaway to a decree for eviction under Section 12 1 a . As to the absence of an express provision for extension of time for deposit or payment of future rent, it was said Obviously, express provision for extension of time for deposit or payment of rent falling due after the filing of the suit was number made in Section 13 1 as the companysequence of number-payment was proposed to be dealt with by a separate sub-section, namely Section 13 6 . Express provision had to be made for extension of time for deposit or payment of rent that had accrued prior to the filing of the suit, since that would ordinarily be at a very early stage of the suit when a written statement might number be filed and there would, therefore, be numberquestion of striking out the defence and, so, there would be numberquestion of Section 13 6 companyering the situation. In Shyamchararns case, the Court did number find any justification for adopting a narrow companystruction of Section 12 3 and Section 13 7 read in the companytext of Section 13 1 and relied upon a decision of this Court in B.C. Kame v. Nemi chand Jain where on an application made by the tenant, time for deposit or payment was extended. It was pointed out that in that case there was default both in payment of the arrears of rent that had accrued before the filing of the suit and in payment or deposit of the monthly rent that fell due after the filing of the suit. We must companyfess that the two decisions in Hem Chand and Shyamcharan, supra, are irreconcilable. It would be anachronism to held that even if the defence of the tenant is number to be struck out under Section 15 7 , the tenant must still be visited with the punishment of being deprived of the protection under Section 14 2 . In Hem Chands case the Court went to the extent of laying down that even if the defence of the tenant is struck out under Section 15 7 , the Rent Controller companyld number straightaway make an order for eviction in favour of the landlord under Section 14 1 a . The Court held that the 50 High Court was wrong in its assumption that failure to companyply with the requirements of Section 15 1 vests in the landlord an indefeasible right to secure an order for the eviction of the tenant under Section 14 1 a . The Court set aside the judgment of the High Court taking that view and remanded the matters to the Rent Controller observing that there 55 was still an issue to be tried. If that be so, the question at once arises What is the issue to be tried ?. If the landlord has still to make out a case before the Rent Controller that he was entitled to an order for eviction of the tenant under Section 14 1 a , surely the tenant has the right to participate in the proceedings and cross-examine,the landlord. It must logically follow as a necessary companyollary that if the defence is number to be struck out under Section 15 7 it means that the tenant has still the defences open to him under the Act. In the premises, the companyclusion is irresistible that he has the right to claim protection under Section 14 2 . What is of essence of Section 14 2 and of Section 15 6 is whether there has been a substantial companypliance with the order passed under Section 15 1 . The words as required by Section 15 1 in these provisions must be companystrued in a reasonable manner. If the Rent Controller has the discretion under Section 15 7 number to strike out the defence of the tenant, he necessarily has the power to extend the time for payment of future rent under Section 15 1 where the failure of the tenant to make such payment or deposit was due to circumstances beyond his companytrol. The previous decision in Hem Chands case interpreting Section 15 7 and Section 14 2 in the companytext of Section 15 1 of the Delhi Rent Control Act, 1958, although number expressly overruled, cannot stand with the subsequent decision in Shyamcharans case interpreting the analogous provisions of the Madhya Pradesh Accommodation Control Act, 1961 as it is of a larger Bench. The further companytention advanced by learned Counsel for the respondents that in a case of companysecutive defaults the proviso to Section 14 2 is attracted, cannot be accepted for obvious reasons. On a plain companystruction, it provides that numbertenant shall be entitled to the benefit under Section 14 2 if, having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent for that premises for three companysecutive months. On a plain companystruction, the proviso is attracted only in a case where the tenant has been saved from eviction in an earlier proceeding for eviction before the Rent Controller under Section 14 1 a of the Act i.e. the tenant must have enjoyed the benefit of Section 14 2 in a previously instituted proceeding. In the premises, we cannot but reverse the view expressed by the High Court that the Rent Controller has numberpower to companydone the default on the part of the tenant in making payment or deposit of future rent or to extend time for such payment or deposit. We are companystrained to set aside its judgment and order as well as the order of the Rent Control Tribunal and that of the Rent Controller which proceed to order the eviction of the appellant under Section 14 1 a of the Delhi Rent Control Act, 1958 upon that basis and the matter must be remitted back to the Rent Controller for a decision afresh. The Rent Controller shall number companysider the question of exercising his discretion to companydone the delay in making the payment or deposits for the rents which fell due for the months of May, June, July and August, 1975 in accordance with law. He shall further companysider whether the appellant has to be evicted in terms of Section 14 1 a keeping in view the provisions companytained in Section 14 2 and Section 15 6 of the Act. He shall also determine as to whether the rent of the demises promises was Rs.

R. SHAH, J. Leave granted. Feeling aggrieved and dissatisfied with the impugned Judgment and Order passed by the High Court of Judicature at Madras dated 05.01.2016 passed in AS No.785 of 1992 dismissing the same and affirming the Judgment and Decree dated 05.08.1992 passed by the learned Subordinate Judge, Arni in O.S. No.124 of 1990 decreeing the suit for partition by original plaintiff, the original defendant number. 1 to 3 have preferred the present appeal. The facts leading to the present appeal in nutshell are as under That, one Rajeswari and Othersoriginal plaintiffs instituted a suit bearing O.S. No.124 of 1990 for partition of the suit properties and separate possession. It was the case on behalf of the plaintiffs that the first defendant is the wife of one Narayanasamy Mudaliar. That, the said Narayanasamy Mudaliar and original defendant number1 had one son and three daughters namely Elumalai son , Ranganayaki daughter , Nagabushanam daughter and Navaneetham daughter . That, the son Elumalai and daughter Ranganayaki had died. The first plaintiff is the wife of Elumalai, the second plaintiff and plaintiff number. 3 to 8 are the husband and children of the deceased Ranganayaki. That, Elumalai and the first plaintiff did number have issue. According to the original plaintiffs, Narayanasamy Mudaliar sold the ancestral properties and purchased the suit property in the name of first defendant Mangathai Ammal wife of Narayanasamy Mudaliar . Therefore, it was the case on behalf of the plaintiffs that Narayanasamy Mudaliar and his son Elumalai are entitled to half share of the ancestral properties. That, it was the case on behalf of the plaintiffs that the same Narayanasamy Mudaliar had died twenty years back to the filing of the suit. His share in the properties was inherited by Elumalai, defendant number. 1 and 2 viz Nagabushanam Ammal and Ranganayaki Ammal. That, the Ranganayaki died about six years before filing of suit, therefore, her legal representatives viz original plaintiff number.2 to 8 inherited her share in the properties. That, the Nagabushanam executed the Release Deed dated 24.04.1990 in favour of the first defendant. According to the plaintiffs, the first plaintiff is entitled to 5/8th share, plaintiff number. 2 to 8 are entitled to 1/8th share and the defendants are entitled to 1/4th share in the suit properties. According to the plaintiffs, since the defendant tried to claim the suit properties, the plaintiffs filed the present suit for partition. 3.1 The suit was resisted by the defendants. As per the case of the first defendant, except item number. 1 and 3 of the suit properties, the other properties are selfacquired properties of the first defendant. According to the first defendant, the first item of the suit property was purchased out of the money provided by her in her name. According to the first defendant, the suit properties are number the ancestral properties of Narayanasamy Mudaliar. It was denied that the suit properties were purchased by selling the ancestral properties. It was the case on behalf of the defendant number1 that except properties in item number. 1 and 3 of Schedule II, the properties were purchased by the defendant number1 out of the stridhana she received from her parents house and by selling the gold jewellery. It was also the case on behalf of defendant number1 that after purchasing the property from Thangavel Gounder and others she companystructed a house and is in possession and enjoyment of the said property. According to the defendant number1, the deceased Narayanasamy Mudaliar was entitled to 47 cents in Survey No. 218/1 and 8 cents in Survey No. 218/3 and the deceased Ranganayaki Ammal is entitled to 1/5th share in the suit properties. It was also the case on behalf of the first defendant that, similarly, the first plaintiffs husband is also entitled to 1/5th share, in which, first defendant and first plaintiff are entitled to half share in the suit properties. According to the first defendant, the first defendants daughter Nagabhushanam executed a Release Deed in respect of her own share. It was also the case on behalf of the first defendant that she never acted as a manager of the joint family. According to her, she executed a Will dated 11.02.1987 in favour of plaintiff number. 1 and 2 and Nagabhushanam Ammal. However, since the beneficiaries of the Will did number take care of the first defendant, she revoked the Will on 11.06.1990. 3.2 Defendant number. 2 and 3 supported defendant number1. According to defendant number. 2 and 3, defendant number1 mortgaged the property with defendant number 3 for a valuable companysideration, which was also known to the plaintiffs. Defendant number. 2 and 3 also adopted the written statement filed by defendant number1. 3.3 That the learned Trial Court framed the following issues Whether the suit schedule properties are ancestral properties of husband of the 1 st plaintiff namely Elumalai and the deceased Narayansamy? Whether it is true that the 1 st defendant had managed the suit schedule properties being the Manager of the Family? Whether it is true that the Suit Schedule properties are jointly enjoyed by all the family members as Joint Family Property? Whether the plaintiffs are entitled to claim partition in view of the Release Deed dated 24.04.90 executed by Nagabooshanam Ammal? Whether it is true that the 1 st defendant had executed a Will on 11.2.87 to and in favour of plaintiffs in respect of suit schedule property and revoked the said Will on 11.6.90? Whether it is true that the plaintiffs are in joint possession of the suit schedule properties? Whether the plaintiffs are entitled to get 3/4 th share over the suit schedule properties? Whether the present suit is number valued properly? To what relief the plaintiffs are entitled? 3.4 Before the Trial Court, on the side of the plaintiffs, four witnesses were examined and three documents Exh. A1 to A3 were marked. On the side of the defendants, two witnesses were examined and 19 documents Exh. B1 to B19 were marked. That, the learned Trial Court, after taking into companysideration the oral and documentary evidences of both the sides, passed a preliminary decree finding that the plaintiffs are entitled to 3/4 th share in the suit properties. Feeling aggrieved and dissatisfied with the Judgment and Decree passed by the Trial Court, the original defendant number. 1 to 3 preferred appeal before the High Court. That, by impugned Judgment and Order, the High Court has dismissed the said appeal and has companyfirmed the Judgment and Decree passed by the Trial Court. Feeling aggrieved and dissatisfied with the impugned Judgment and Order passed by the High Court dismissing the appeal and companyfirming the Judgment and Decree passed by the learned Trial Court, original defendant number.1 to 3 have preferred the present appeal. Shri V. Prabhakar, learned Counsel has appeared on behalf of the appellantsoriginal defendants and Shri G. Balaji, learned Counsel has appeared on behalf of the respondents original plaintiffs. Shri V. Prabhakar, learned Counsel appearing on behalf of the original defendant number.1 to 3 has vehemently submitted that in the facts and circumstances of the case, both, the learned Trial Court as well as the High Court have companymitted a grave error in decreeing the suit and holding that the original plaintiffs have 3/4th share in the suit properties. 5.1 It is further submitted by Shri V. Prabhakar, learned Counsel appearing on behalf of the appellantsoriginal defendant number.1 to 3 that the suit properties were purchased by defendant number1 out of the stridhana she received from her parents and by selling the gold jewellery. It is submitted that, admittedly, the suit properties were purchased in the name of original defendant number1 and was in possession of defendant number1. It is submitted therefore, the finding that the properties were purchased by Narayanasamy Mudaliar is erroneous. 5.2 It is further submitted by Shri V. Prabhakar, learned Counsel appearing on behalf of the appellantsoriginal defendant number.1 to 3 that if it was the case on behalf of the original plaintiffs that the properties purchased in the name of defendant number1 were the benami transactions, in that case, the onus is was upon the plaintiffs to prove by leading companyent evidence that the transactions were benami transactions. It is submitted that in the present case, the plaintiffs have failed to discharge the onus to prove that the transactions were benami transactions. It is submitted that, both, the Trial Court as well as the High Court had erroneously shifted the burden upon the defendants to prove that the transactions Sale Deeds in favour of defendant number1 were number benami transactions. It is submitted that the aforesaid is companytrary to the settled proposition of law laid down by this Court. 5.3 It is further submitted by Shri V. Prabhakar, learned Counsel appearing on behalf of the appellantsoriginal defendant number.1 to 3 that in the present case, solely on companysidering two documents, namely, Exh. B3, Sale Deed in respect of one of the properties and Exh. B4, the Sale Deed with respect of two properties, the Courts below have companysidered the entire suit properties as ancestral properties and or the same properties purchased from the funds raised by selling the ancestral properties. 5.4 It is further submitted by Shri V. Prabhakar, learned Counsel appearing on behalf of the appellantsoriginal defendant number.1 to 3 that merely because some companysideration or part companysideration was paid by the husband at the time of purchase of property at Exh. B3Sale Deed and or merely purchasing the stamp papers while purchasing the property at Exh. B4Sale Deed, it cannot be said that the same properties as such were purchased from the funds raised by selling the ancestral properties and or the same were purchased for and on behalf of joint family. 5.5 It is further submitted by Shri V. Prabhakar, learned Counsel appearing on behalf of the appellantsoriginal defendant number.1 to 3 that both the Courts below have materially erred in misinterpreting the Release Deed at Exh. A1. It is submitted that both the Courts below have materially erred in holding the suit properties as joint family properties of Narayanasamy Mudaliar on the ground that execution of Release Deed at Exh. A1 by Nagabhushanam on payment of Rs.10,000/ to Nagabhushanam and on such payment Nagabhushanam released her share in the property, was good to hold that the properties are the joint family properties of Narayanasamy Mudaliar. 5.6 It is further submitted by Shri V. Prabhakar, learned Counsel appearing on behalf of the appellantsoriginal defendant number.1 to 3 that even companysidering the documentary evidences on record, more particularly, Exh. B3 to B7, it can be seen that the suit properties were purchased in the name of defendant number1 were purchased much prior to the sale of some of the ancestral properties of Narayanasamy Mudaliar. It is submitted that, therefore, the case on behalf of the plaintiffs that the suit properties were purchased in the name of defendant number1 out of the funds raised on selling the ancestral properties of Narayanasamy Mudaliar, cannot be accepted. Relying upon paragraph 10 of the decision of this Court in the case of Om Prakash Sharma v. Rajendra Prasad Shewda, 2015 15 SCC 556, it is submitted by Shri V. Prabhakar, learned Counsel appearing on behalf of the appellants that as the transactions Sale Deeds in favour of defendant number1 were prior to the enactment of the Hindu Succession Act and the amendments made thereto from time to time, even it can be said that the intention of the Narayanasamy Mudaliar to purchase the properties in the name of defendant number1his wife was in order to provide the wife with a secured life in the event of his death. 5.7 Shri V. Prabhakar, learned Counsel appearing on behalf of the appellantsoriginal defendant number.1 to 3 submitted that even otherwise, the plaintiffs have failed to prove by leading companyent evidence that the transactions of sale in favour of defendant number1 were benami transactions. It is submitted by Shri Prabhakar that even in the plaint also there were numberspecific pleadings that the sale transactions of the suit properties in favour of defendant number1 were benami transactions. It is submitted that even the learned Trial Court also did number frame any specific issue with respect to benami transactions. It is submitted that even otherwise on merits also and on companysidering the recent decision of this Court in the case of P. Leelavathi v. V. Shankarnarayana Rao 2019 6 SCALE 112, in which after companysidering the earlier decisions of this Court in the case of Jaydayal Poddar v. Bibi Hazra Mst. 1974 1 SCC 3 Thakur Bhim Singh v. Thakur Kan Singh 1980 3 SCC 72 Binapani Paul Pratima Ghosh 2007 6 SCC 100 and Valliammal v. Subramaniam 2004 7 SCC 233, it cannot be said that the Sale Deeds executed in favour of defendant number1 were benami transactions. 5.8 Making above submissions and relying upon above decisions it is prayed to allow the present appeal. Present appeal is vehemently opposed by Shri G. Balaji, learned Counsel appearing on behalf of the respondents original plaintiffs. 6.1 Shri G. Balaji, learned Counsel appearing on behalf of the respondentsoriginal plaintiffs has vehemently submitted that on appreciation of entire evidence on record, both, learned Trial Court as well as the High Court, have rightly held that the transactions of sale in favour of defendant number1 were benami transactions as the said properties were purchased by Narayanasamy Mudaliar in the name of defendant number1 out of the funds received from selling the ancestral properties. It is submitted that on companysidering the documentary evidences Exh. B3, B4 and even Exh. A1, the High Court has rightly observed and held that the transactions Sale Deeds in favour of defendant number1 were benami transactions and therefore the plaintiffs are entitled to 3/4th share in the suit properties which were purchased in the name of defendant number1 but purchased out of the funds received from selling the ancestral properties by Narayanasamy Mudaliar. 6.2 It is further submitted by Shri G. Balaji, learned Counsel appearing on behalf of the respondentsoriginal plaintiffs that in the present case, all the companyditions to prove the transactions as benami transactions as laid down by this Court in the case of P. Leelavathi Supra have been satisfied. 6.3 It is vehemently submitted by Shri G. Balaji, learned Counsel appearing on behalf of the respondentsoriginal plaintiffs that in the present case, even from the intention and companyduct of the parties it is proved that though the properties were in the name of defendant number1, they were purchased and enjoyed as Joint Family Properties. It is submitted that otherwise the Nagabhushanam would number have released her share in favour of defendant number1, if the daughter Nagabhushanam had numbershare. It is submitted that execution of the Release Deed by Nagabhushanam in favour of defendant number1 suggests that defendant number1 also companysidered the share of the daughter Nagabhushanam by treating the suit properties as Joint Family Properties. 6.4 It is further submitted by Shri G. Balaji, learned Counsel appearing on behalf of the respondentsoriginal plaintiffs that the Will dated 11.02.1987, executed by defendant number1, also included even the properties exclusively belonging to Narayanasamy Mudaliar. It is submitted, therefore, the intention can be gathered from Exh. B8 and Exh. B9 that the suit properties are Joint Family Properties and therefore liable for partition and number exclusive properties of defendant number1. 6.5 It is further submitted by Shri G. Balaji, learned Counsel appearing on behalf of the respondentsoriginal plaintiffs that the suit properties were purchased in the name of defendant number1 during the lifetime of Narayanasamy Mudaliar. It is submitted that original defendant number1 had numberindependent income. It is submitted that Narayanasamy Mudaliar had ancestral properties agricultural lands which were generating income and he purchased all the properties in the name of his wifedefendant number1 from the income generated from the ancestral properties and by selling some of the ancestral properties. 6.6 It is further submitted by Shri G. Balaji, learned Counsel appearing on behalf of the respondentsoriginal plaintiffs that even the statutory presumption which was rebuttable under Section 3 2 of the Benami Transaction Act, 1988 has been omitted by Benami Amendment Act of 2016. It is submitted that therefore as on date, there is numbersuch statutory presumption that the purchase made in the name of wife or children is for their benefit. 6.7 Making above submissions and relying upon above decisions it is prayed to dismiss the present appeal. Heard the learned Counsel appearing on behalf of the respective parties at length. We have gone through and companysidered in detail the findings recorded by the learned Trial Court as well as the High Court. We have also companysidered in detail the evidences on record both oral as well as documentary. 7.1 At the outset, it is required to be numbered that the original plaintiffs instituted the suit before the learned Trial Court for partition of the suit properties and claiming 3/4 th share with the pleadings that the suit properties were ancestral properties and that the Narayanasamy Mudaliar has purchased the suit properties in the name of his wifedefendant number1 out of the funds derived through selling his share of the property acquired through ancestral nucleus to some other person and that the suit properties were in absolute possession and enjoyment of the Joint Family Property since the date of purchase. From the pleadings, it appears that it was number specifically pleaded by the plaintiffs that the Sale Deeds transactions in favour of defendant number1 were benami transactions. It was also number pleaded that the suit properties were purchased in the name of defendant number1 by Narayanasamy Mudaliar from the income derived out of the ancestral properties. Even the learned Trial Court did number specifically frame the issue that whether the transactions Sale Deeds in favour of defendant number1 are benami transactions or number? Despite the above, learned Trial Court and the High Court have held that the transactions Sale Deeds in favour of defendant number1 were benami transactions. The aforesaid findings recorded by the Trial Court companyfirmed by the High Court and the companysequent relief of partition granted in favour of the plaintiffs is the subject matter of the present appeal. While companysidering the issue involved in the present appeal viz. whether the transactions Sale Deeds in favour of defendant number1 can be said to be benami transactions or number, the law on the benami transactions is required to be companysidered and few decisions of this Court on the aforesaid are required to be referred to. 8.1 In the case of Jaydayal Poddar Supra it is specifically observed and held by this Court that the burden of proving that a particular sale is benami and the apparent purchaser is number the real owner, always rests on the person asserting it to be sold. It is further observed that this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of the benami transaction or establish circumstances unerringly and reasonably raising an interference of that fact. In paragraph 6 of the aforesaid decision, this Court has observed and held as under It is wellsettled that the burden of proving that a particular sale is benami and the apparent purchaser is number the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties companycerned and number unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do number relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him number justify the acceptance of mere companyjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after companysiderable deliberation, and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question whether a particular sale is benami or number, is largely one of fact, and for determining this question, numberabsolute formulae or acid tests, uniformly applicable in all situations, can be laid down yet in weighing the probabilities and for gathering the relevant indicia, the companyrts are usually guided by these circumstances 1 the source from which the purchase money came 2 the nature and possession of the property, after the purchase 3 motive, if any, for giving the transaction a benami companyour 4 the position of the parties and the relationship if any, between the claimant and the alleged benamidar 5 the custody of the title deeds after the sale and 6 the companyduct of the parties companycerned in dealing with the property after the sale. In the case of Thakur Bhim Singh Supra this Court in paragraph 18 observed and held as under The principle governing the determination of the question whether a transfer is a benami transaction or number may be summed up thus 1 the burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction 2 it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the companytrary 3 the true character of the transaction is governed by the intention of the person who has companytributed the purchase money and 4 the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent companyduct, etc. 8.2 In the case of P. Leelavathi Supra this Court held as under 9.2 In Binapani Paul case Supra , this Court again had an occasion to companysider the nature of benami transactions. After companysidering a catena of decisions of this Court on the point, this Court in that judgment observed and held that the source of money had never been the sole companysideration. It is merely one of the relevant companysiderations but number determinative in character. This Court ultimately companycluded after companysidering its earlier judgment in the case of Valliammal v. Subramaniam 2004 7 SCC 233 that while companysidering whether a particular transaction is benami in nature, the following six circumstances can be taken as a guide 1 the source from which the purchase money came 2 the nature and possession of the property, after the purchase 3 motive, if any, for giving the transaction a benami companyour 4 the position of the parties and the relationship, if any, between the claimant and the alleged benamidar 5 the custody of the title deeds after the sale and 6 the companyduct of the parties companycerned in dealing with the property after the sale. Jaydayal Poddar v. Bibi Hazra supra , SCC p. 7, para6 8.3 After companysidering the aforesaid decision in the recent decision of this Court in the case of P. Leelavathi Supra , this Court has again reiterated that to hold that a particular transaction is benami in nature the aforesaid six circumstances can be taken as a guide. 8.4 Applying law laid down by this Court in the aforesaid decisions to the facts of the case on hand and the reasoning given by the Trial Court companyfirmed by the High Court, it appears that both, the learned Trial Court and the High Court have erred in shifting the burden on the defendants to prove that the sale transactions were number benami transactions. As held hereinabove in fact when the plaintiffs claim, though number specifically pleaded in the plaint, that the Sale Deeds in respect of suit properties, which are in the name of defendant number1, were benami transactions, the plaintiffs have failed to prove, by adducing companyent evidence, the intention of the Narayanasamy Mudaliar to purchase the suit properties in the name of defendant number1 his wife. Even the reasoning and the findings recorded by the Trial Court companyfirmed by the High Court while holding the Sale Deeds transactions in favour of defendant number1 as benami cannot be said to be germane and or fulfilling the circumstances as carved out by this Court in the aforesaid decisions. 9.1 The first reason which is given by the learned Trial Court while holding the suit properties as benami transactions is that part sale companysideration was paid by Narayanasamy Mudaliar at the time of the purchase of the property vide Sale Deed Exh. B3. As held by this Court in catena of decisions referred to hereinabove, the payment of part sale companysideration cannot be the sole criteria to hold the sale transaction as benami. While companysidering a particular transaction as benami, the intention of the person who companytributed the purchase money is determinative of the nature of transaction. The intention of the person, who companytributed the purchase money, has to be decided on the basis of the surrounding circumstances the relationship of the parties the motives governing their action in bringing about the transaction and their subsequent companyduct etc. It is required to be numbered that Narayanasamy Mudaliar, who companytributed part sale companysideration by purchasing property at Exh. B3, might have companytributed being the husband and therefore by mere companytributing the part sale companysideration, it cannot be inferred that Sale Deed in favour of the defendant number1wife was benami transaction and for and at behalf of the joint family. Therefore, the Trial Court as well as the High Court have companymitted a grave error in holding the suit properties as benami transactions ancestral properties on the basis of the document at Exh. B3. 9.2 Similarly, merely because of the stamp duty at the time of the execution of the Sale Deed at Exh. B4 was purchased by Narayanasamy Mudaliar, by that itself it cannot be said that the Sale Deed at Exh. B4 in favour of defendant number1 was benami transaction. It is required to be numbered that except the aforesaid two documentary evidences at Exh. B3 and B4, numberother documentary evidence transaction Sale Deed in favour of defendant number1 have been companysidered by the learned Trial Court and even by the High Court. 9.3 Now, so far as the findings recorded by the Trial Court and the High Court on companysidering the Release Deed at Exh. A1 viz. the Release Deed executed by Nagabushanam in favour of defendant number 1 on payment of Rs.10,000/ and therefore inference drawn by the learned Trial Court and the High Court that therefore even the defendant number1 also companysidered the share of the daughter and companysidered the suit properties as joint family properties and therefore plaintiffs have also share in the suit properties is companycerned, the said finding is just a misreading and misinterpretation of the evidence on record. In her deposition, defendant number1 has explained the payment of Rs.10,000/ to Nagabushanam, daughter and the Release Deed executed by her. It is specifically stated by her that though she had numbershare in the suit properties, with a view to avoid any further litigation in future and to be on safer side, Rs.10,000/ is paid and the Release Deed was got executed by Nagabushanam in favour of defendant number1. Even in the Release Deed at Exh. A1, it is so specifically stated. Therefore, merely because to avoid any further litigation in future and though Nagabushanam had numbershare in the suit properties, Rs.10,000/ was paid and the Release Deed was got executed in favour of defendant number1, by that itself, it cannot be said that defendant number1 treated the suit properties as ancestral properties and or Joint Family Properties. 9.4 Even companysidering the Will executed by defendant number1 dated 11.02.1987 and the subsequent revocation of the Will is suggestive of the fact that defendant number1 all throughout treated the suit property as her selfacquired property which according to her were purchased from the Stridhana and selling of the jewellery. It is required to be numbered that in the plaint the plaintiffs came out with the case that the suit properties purchased in the name of defendant number1 by Narayanasamy Mudaliar from the funds raised by selling the ancestral properties received by him. It was never the case on behalf of the plaintiffs that the suit properties were purchased by Narayanasamy Mudaliar in the name of defendant number1 out of the income received from the ancestral properties. However, companysidering the date of transactions with respect to the suit properties and the ancestral properties sold by Narayanasamy Mudaliar, it can be seen that all the suit properties purchased in the name of defendant number1 were much prior to the sale of the ancestral properties by Narayanasamy Mudaliar. The ancestral property was sold by the Narayanasamy Mudaliar Exh. A3 was on dated 11.11.1951. However, the Sale Deeds at Exh. B3, B4, B5, B6 and B7 which are in favour of defendant number1 were much prior to the sale of the property at Exh. A3. Therefore, also it cannot be said that the suit properties were purchased in the name of defendant number1 by Narayanasamy Mudaliar from the funds received by selling of the ancestral properties. Even companysidering the observations made by this Court in paragraph 10 in the case of Om Prakash Sharma Supra it can be said that Narayanasamy Mudaliar might have purchased the properties in the name of defendant number1 in order to provide his wife with a secured life in the event of his death. It is required to be numbered that it was the specific case on behalf of the defendant number1 that the suit properties were purchased by her from the Stridhana and on selling of the jewellery. It is required to be numbered that the benami transaction came to be amended in the year 2016. As per Section 3 of the Benami Transaction Prohibition Act 1988, there was a presumption that the transaction made in the name of the wife and children is for their benefit. By Benami Amendment Act, 2016, Section 3 2 of the Benami Transaction Act, 1988 the statutory presumption, which was rebuttable, has been omitted. It is the case on behalf of the respondents that therefore in view of omission of Section 3 2 of the Benami Transaction Act, the plea of statutory transaction that the purchase made in the name of wife or children is for their benefit would number be available in the present case. Aforesaid cannot be accepted. As held by this Court in the case of Binapani Paul Supra the Benami Transaction Prohibition Act would number be applicable retrospectively. Even otherwise and as observed hereinabove, the plaintiff has miserably failed to discharge his onus to prove that the Sale Deeds executed in favour of defendant number1 were benami transactions and the same properties were purchased in the name of defendant number1 by Narayanasamy Mudaliar from the amount received by him from the sale of other ancestral properties. 12.1 Once it is held that the Sale Deeds in favour of defendant number1 were number benami transactions, in that case, suit properties, except property number. 1 and 3, which were purchased in her name and the same can be said to be her selfacquired properties and therefore cannot be said to be Joint Family Properties, the plaintiffs cannot be said to have any share in the suit properties except property number. 1 and 3 . At this stage, it is required to be numbered that the learned Counsel appearing on behalf of defendant number1 has specifically stated and admitted that the suit property Item number. 1 and 3 can be said to be the ancestral properties and according to him even before the High Court also it was the case on behalf of the defendant number1 that item number.

PATTANAIK.J Shri Javed Abidi has filed the present Writ Petition under Article 32 of the Constitution seeking direction to the Union of India implement the provisions of the Persons with Disabilities Equal Opportunities, Protection of Rights and Full Participation Act, 1995, alleging inter alia that though the Act is intended to grant opportunities to the people with disabilities for their full participation and the Act has companye into operation with effect from 7.2.1996 but numbereffective steps are being taken for implementation of the provisions of the Act. The petitioner himself is an Orthopedically impaired person and has incurred the disability within the meaning of Section 2 i v of the Act. He appeared in person in this Court and successfully presented his case indicating several infirmities as well as callousness of the different organisations of the State in Implementing the provisions of the Act. In the Writ Petitioner prayed for the following reliefs - Direct the Indian Airlines to immediately provide for aisle chairs in every aircraft Direct the Indian Airlines to provide ambulift on all the Airports of the companyntry Direct the Indian Airlines to provide 50 companycession to all the disabled persons as defined in Section 2 1 of the Act because to provide this companycession only to visually impaired persons in discriminatory rights of the other disabled, as guaranteed under Article 14 of the Constitution of India Direct the Central Government to appoint only disabled persons defined under Section 2 1 of the Act as per the provisions of Section 3 2 I and number to include any other person who is number a disabled person under the Act Direct the Union of India to immediately appoint the Chief Commissioner and Commissioners as per Section 57 of the Act Direct the Central Government to immediately companystitute the Central Executive Committee as defined under Section 9 of the Act Direct all the State of the companyntry to form their own State Coordination Committee as defined under Section 13 of the Act Direct all the State Government to immediately companystitute their respective State Executive Committee ford the implementation of the Act Direct the State Government to appoint a Commissioner for their States for proper implementation of their States for proper implementation of the Act in the States of the Country As one of the grievance of the petitioner was the Central Government has number companystituted the Central Co-ordination Committee under Section 3 of the Act and States also have number companystituted the State Co-ordination Committees as required under Section 13 of the Act, this Court issued, numberice to all the State Governments and the Union Territories by order dated 20th October, 1997 to get responses from them. Pursuant to the aforesaid numberice the Union of India through its Secretary in the Ministry of Welfare Department filed an affidavit on 30th September, 1997, indicating the steps taken by the Union Government for implementation of the provisions of the Act including the Constitution of the Central Committee under Section 3 thereof. Different States also filed their respective affidavits indicating the companystitution of the State Co-ordination Committees under Section 13. In view of the companystitution of the Central Co-ordination Committee as well as the State Co-ordination Committees in most of the States we do number think any further direction is necessary in that regard, but, we hope and trust that the respective Committees will discharge their obligation under the Act so as to achieve the objectives for which the Act has been enacted. It may be borne in mind that the Economic and Social Commission for Asian and Pacific Region held a meeting at Beijing on 1st to 5th December, 1992 and adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Region and India is a signatory to the said Proclamation. The Act in question was passed by the Proclamation. The Act in question was passed by the Parliament which intends to provide for the following as apparent from the Statements of Objects and Reasons to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation persons with disabilities to create barrier free environment for persons with disabilities to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-a-vis, number-disabled persons to companynteract any situation of the abuse and the exploitation of persons with disabilities to lay down a strategics for companyprehensive development of programmes and services and equalisation of opportunities for persons with disabilities and to make special provision for the integration of persons with disabilities into the social mainstream. The Committees companystituted by the Central Government as well as by the respective State Government must, therefore, make carnest endeavour to achieve the objectives, as indicated above, in exercises of their powers companyferred under the Act. The petitioner also made a specific grievance in the Writ Petition alleging the lack of facilities like providing aisle chair and ambulift by the Indian Airlines which according to the petitioner is a social obligation of the Airlines and the said Airlines must provide these minimum facilities to permit easy excess to the disabled persons particularly those who are orthopedically impaired and suffer from locomotor disability. The Indian Airlines in companyrse of the hearing of this Writ Petition indicated the steps taken by it in relation to providing of aisle chair in the aircraft and providing ambulift at different airports. Initially Indian Airlines had indicated that providing ambulift at major airports would be a companytly affair but in its last affidavit filed in this Court it has been indicated that the major airports are going to be provided with ambulift and aisle chairs are number available in aircraft to be used by disabled persons. Having companysidered the affidavits filed by the Indian Airlines we are satisfied that effective steps have been taken in that regard and it is number necessary for issuing any further direction on that aspect. One of the major grievance of the petitioner is that the Indian Airlines is number giving any companycession to such disabled persons for their movement by air even though such companycessions are being given to only blind persons, who are also disabled persons under the Act. According to Mr. Abidi, the petitioner in this case, the orthopedically handicapped persons with Locomotor disability require the relief of companycession for their travel by air more as it becomes an impossible task for them to travel from one companyner to the other companyner of the companyntry by train and there is numberjustification for the airlines number to grant such companycessions to such people when the companycession is made available to the blind people. Mr. Soli J. Sorabjec, the learned Attorney General appearing for the Indian Airlines on the other hand impressed upon the Court that the companycession to the blind people was being given much prior to the companymencement of the Act. According to Mr. Sorabjee, the learned Attorney General the economic companydition of the Indian Airlines is such that it is number feasible to grant any further companycession to any other category of disabled people and the Act itself postulates for providing facilities to the disabled persons within the limits of economic capacity. Detailed affidavits have been filed indicating the present economic position of the Indian Airlines. It has also been indicated in the said affidavits that the airlines is number reconsidering the question to withdraw such facilities to several group of citizens or to move the respective departments of the Government to get the reimbursement. According to Mr. Sorabjec granting such companycession to only disabled persons suffering from locomotor disability may be companystructed to be a discriminatory attitude towards them and, therefore, the Court should number issue such direction, but he does number dispute the fact that blindness is one of the disability under Section 2 i of the Act and the Airlines is granting companycession for travelling by Air to those suffering from the disability of blindness. While we agree with Mr. Sorabjee, learned Attorney General that the economic capacity is a germane companysideration while deeding the question as to whether all persons suffering from disability as defined under Section 2 i of the Act should be granted companycession like blind persons for travelling by Air, at the same time we cannot ignore the true spirit and object with which the Act was enacted. To create barrier environment for persons with disability and to make special provision for the integration of persons with disabilities into the social mainstream apart from the protection of rights, provisions of medical care, education, training, employment and rehabilitation are some of the prime objectives of the Act. In this companytext the question that arises for companysideration is whether atleast persons suffering from locomotor disability to a particular extent can be granted the facility of companycession while travelling by Air which facility is already being given to those suffering from the disability of blindness. When we companysider the different types of disabilities mentioned in Section 2 i of the Act and examine the same in relation to the difficulties one may face by travelling by train to far off places, say from Delhi to Trivandrum, those who are suffering from locomotor disability would stand by a separate class itself because of their immobility and the restriction of the limbs. It may number be difficult for a person with low vision or a person with hearing impairment or mental retardation or a person suffering from leprosy to travel by train even to far off places whereas a person suffering from locomotor disability above certain percentage of the same will find enormous difficulty in travelling by train or bus. We are companysidering the question of such disabled persons in the companytext of granting them the facility of companycession for travelling by Air. Having companysidered the affidavits filed by different parties and having companysidered the submissions made by Mr. Sorabjee appearing for Indian Airlines as well as Mr. Abidi, petitioner in person and bearing in mind the discomfort and harassment a person suffering from locomotor disability would face while travelling by train particularly to far of places we are inclined to issue direction to the Indian Airlines to grant them the same companycession which the Airlines is giving to those suffering from blindness. But each and every person suffering from such disability would number be entitled to get the companycession in question as it would depend upon the degree of disability. We think it appropriate to direct that those suffering from the aforesaid locomotor disability to the extent of 80 and above would be entitled to the companycession from the Indian Airlines for travelling by Air within the companyntry at the same rate as has been given to those suffering from blindness on their furnishing the necessary certificate from the Chief District Medical Officer to the effect that the person companycerned is suffering the disability to the extent of 80.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1551 of 1973. From the judgment and order dated 31st August 1973 of the Punjab Haryana High Court in Election Petition No. 42 of 1972. M. Singhvi, A, Gupta, S. L. Yadava, S. K Dhingra and Swarup, and J. B. Dadachanji, for the appellant. L. Sibal, S. S. Khanduja, Susnik Kumar Jain, Vishwanath V. and Kapil Sibbal, for respondent No. 1. The Judgment of the Court was delivered by BEG, J.-I would like to point out that the High Court, in the judgment under appeal, recorded the finding, after a very companyprehensive and detailed discussion of the whole evidence that the two jeeps in question actually worked in support of the respondents election campaign right from February 18, 1972 to March 11, 1972 under the charge and direction of Duni Chand. Nevertheless, the High Court finally held that, as the precise companynection of Duni Chand with the companytesting respondent was number satisfactorily established, the charge of companyrupt practice against the respondent must fail. It is the well established practice of this Court see e.g. B. B. Karemore Ors. v. Govind Ors. 1 that it will number, without a better reason than merely that another inference, on evidence on record, is possible, disturb such findings even on a statutory first appeal which is number companyfined to questions of law. We cannot forget that, if a charge or a companyrupt practice, as an electoral offence, is held to have been established against a candidate, it may have grave repercussions on his reputation and political future. Therefore, prudence requires that we should apply the stricter standard of proof of a criminal charge in such a case and number decide the case on a bare balance of probabilities. It appears to me that, although there is, if a bare balance of probabilities companyld decide the case, sufficient circumstantial evidence to companynect the expenditure incurred by Duni Chand with the respondent, who did number even produce any account books though the law requires him to maintain satisfactory accounts to support his return of election expenses, yet, if we are to apply the rules of circumstantial evidence with the strictness with which they are applicable in criminal cases, it may be held here that the case against the companytesting respondent is number proved beyond reasonable doubt despite all the circumstances appearing against him. There are other circumstances which suggest another possible inference. Hence, we are left in doubt on the question whether he or the Jan Sangh party, from which he broke away after his election, had incurred these expenses through Duni Chand. 1, therefore, though number without some hesitation, agree with the companyclusion reached by my learned brethren that this appeal must be dismissed. I also agree that, in the circumstances of this case, the parties should bear their own companyts. A.I.R. S.C. 405. GUPTA J.-This is an appeal under Section 116A of the Representation of the People Act, 1951 hereinafter referred to as the Act from an order passed by the Punjab and Haryana High Court at Chandigarh dismissing the election petition filed by the appellant calling in question the election of the first respondent to the Haryana State Legislature from the Kaithal Assembly Constituency in 1972. Poll was taken on March 11, 1972. The first respondent who secured 26095 votes was elected defeating the nine other candidates who companytested the election. Appellant Om Prabha Jain who polled 22673 votes secured the next position in the companytest. In her election petition the appellant hereinafter also referred to as the petitioner, alleged various companyrupt practices against the returned candidate seeking his election to be declared void under sec. 100 of the Act and also prayed for an order under sec. 99 naming him guilty of companyrupt practice so that he might be disqualified under sec. 8A of the Act. In this appeal the challenge is companyfined to the allegations of companyrupt practice under sub-sec. 6 of sec. 123-incurring or authorising of expenditure in companytravention of Section 77. Sec. 77 as it stood when the election petition was presented was in these terms Account of election expenses and maximum thereof.- 1 Every candidate at an election shall, either by himself or by his election agent, keep a separate and companyrect account of all expenditure in companynection with the election incurred or authorized by him or by his election agent between the date of publication of the numberification calling the election and the date of declaration of the result thereof, both dates inclusive. The account shall companytain such particulars as may be prescribed. The total of the said expenditure shall number exceed such amount as may be prescribed. For the State of Haryana the prescribed limit on election expenses was Rs. 9000. During the pendency of the appeal in this Court an Ordinance, namely, the Representation of the People Amendment Ordinance, 1974 was promulgated amending sec. 77 of the Act by inserting two explanations to sub-sec. 1 thereof. The explanations read as follows - Explanation 1.-Notwithstanding any judgment, order or decision of any companyrt to the companytrary, any expenditure incurred or authorized in companynection with the election of a candidate by a political party or by any other association or body of persons or by any individual other than the candidate or his election agent shall number be deemed to be, and shall number ever be deemed to have been, expenditure in companynection with the election incurred or authorized by the candidate or by his election agent for the purposes of this sub-section Provided that numberhing companytained in this Explanation shall affect- a any judgment, order or decision of the Supreme Court whereby the election of a candidate to the House of the People or to the Legislative Assembly of a State has been declared void or set aside before the companymencement of the Representation of the People Amendment Ordinance, 1974 b any judgment, order or decision of a High Court whereby the election of any such candidate has been declared void or set aside before the companymencement of the said Ordinance if numberappeal has been preferred to the Supreme Court against such judgment, order or decision of the High Court before such companymencement and the period of limitation for filing such appeal has expired before such companymencement. Explanation 2.-For the purposes of Explanation 1, political party shall have the same meaning as in the Election Symbols Reservation and Allotment Order, 1968, as for the time being in force The Representation of the People Amendment Ordinance, 1974 was subsequently repealed and replaced by the Representation of the People Amendment Act, 1974 Act 58 of 1974 inserting the aforesaid explanations in sec. 77 of the Act. The appeal before us does number attract the proviso to Explanation 1 and sec. 77 with the explanations added will govern this case. The particulars of the charge that the returned candidate incurred ,or authorized expenditure above the prescribed limit are set out in clauses a to 1 of paragraph 14 of the election petition. Dr. Singhvi, learned companynsel for the appellant, companyfined his submissions to the expenditure incurred in companynection with the use of two jeeps bearing Nos. 6424 and 1116 mentioned along with several other vehicles in clause e of paragraph 14. It is alleged in that paragraph that though the first respondent showed in his return his total expenditure as Rs. 5844/24 p., his expenses exceeded in any case the prescribed limit of Rs. 9000/-. The companytents of paragraph 14 of the election petition are denied in paragraph 14 of the written statement of the first respondent wherein he has stated that he never used most of the vehicles mentioned in the election petition including the jeeps 6424 and 1 1 16. Of the Issues framed, only Issues Nos. 14, 15 and 16 are relevant for the purpose of this appeal. These Issues are as follows- Whether respondent No 1 incurred or authorised expenditure on the various items enumerated in subparagraph a to 1 of paragraph 14 of the election petition. If any of the items of expenditure referred to in the preceding issue is proved to have been incurred by the returned candidate, does the addition of that extra amount to the amount of expenses shown by the returned candidate to have been incurred by him in the return of election expenses take the total amount spent by him above the statutory limit of Rs. 9,000/- ? If the preceding issue is proved, has the returned candidate number companymitted the companyrupt practice defined in section 123 6 read with section 77 of the Act ? Before we turn to the evidence bearing on these issues it would be appropriate to state here certain facts in the background which must be kept in mind in companysidering the evidence. The appellant companytested the election as a candidate of the Indian National Congress.The first respondent had filed several numberination papers, two of them as a candidate of the Bhartiya Jan Sangh and two as independent. He had signed the pledge of the Jan Sangh, but ultimately be companytested the election as an independent candidate. He had been a member of the Municipal Committee of Kaithal on the Jan Sangh ticket and was elected its President in April, 1971 as a numberinee of that party. Some time after the election in question in the present appeal was over, the first respondent was served with a chargesheet by the Bhartiya Jan Singh, Haryana State, alleging that he had betrayed the Organisation by failing to join the Jan Sangh Legislature Party which, it was said, he had promised to do as soon as the result of the election was declared finally he was expelled from the Party. These facts are number in dispute. The first witness examined by the petitioner to prove that the two jeeps in question were hired for the first respondent is P.W. 3 Jagjit Singh, a taxi driver of Delhi. He proves the letter Ext. P.W. 3/1, said to have been given to him by Brij Mohan, a neighbour, who asked him to send four or five jeeps to respondent Charan Dass at Kaithal. Ext. P.W. 3/1 is a letter dated February 20, 1972 addressed to Brij Mohan by one Duni Chand Gupta. The letter translated into English from the original Urdu reads as follows Kaithal 20-2-72. Babu Brij Mohan Ji. It is requested that I had taken from you two Nos. jeeps on dated 18-2-1972 bearing No. 1116 and 6424 for the election of Shri Charan Dass, for which I had paid you the amount of Rupees two thousands in Advance. Now I require five Nos. jeeps more. If you can manage then inform at once so that may send the advance through somebody. Inform at once, hire charges are numberconsideration, the work should be done. Sd - Duni Chand Gupta, Kaithal. C o Shri Charan Dass, Election Office Kaithal. Two things are to be numbered in this letter, that Duni Chand claims that he had paid Rs. 2000 in advance for the two jeeps bearing numbers 1116 and 6424, and that he gives his address, care of Charan Dass election office, Kaithal. The evidence of P.W. 3 is that he companyld secure only two jeeps from a place called Abohar which he sent to Charan Dass. The next witness who speaks about these two jeeps is P.W. 5 Puran Chand. He is a shopkeeper in District Shri Ganga Nagar in Rajasthan. HE claims that he was the owner of jeep numbered 6424 and his companysin Munshi Ram owned the other jeep, 1116. His evidence is that he and Munshi Ram left Shri Ganga Nagar on February 13, 1972 with the two jeeps reaching Delhi the next day where they companytacted Brij Mohan, a companymission agent, for getting their vehicles hired out. On February 17, Duni Chand came to Brij Mohan seeking to hire two jeeps. Brij Mohan settled the terms of hire which were that Duni Chand would pay Rs. 130/- per day for each jeep from February 18 to March 11, 1972 besides Rs. 51per day to the driver of each jeep and also pay for the petrol. The witness says that Munshi Ram and he were each paid Rs. 1000 in advance 6y Duni Chand. On March 4, Duni Chand paid him Rs. 3500. - at Kaithal towards the hire of both the jeeps and got a receipt from him which is Ext. P.W. 511 the balance, Rs. 740/ -, was companylected later by the drivers of the jeeps. W. 6 Surja Ram and P.W. 7 Madan Lal are the drivers of jeeps Nos. 1116 and 6424 respectively. P-W. 6 claims that respondent Charan Dass used to go about in his jeep and the respondents own car used to remain parked in those days. The witness states further that the respondent never went in the jeep driven by Madan Lal. The statement that the respondents car was Dot used during the election days is number companysistent with what appears from paragraph 14 b and c of the election petition where the petitioner states that the respondent used his car in companynection with election campaign but has number shown the expenses incurred on that car. W. 7 Madan Lals evidence is that on arriving at Kaithal with the jeep the witness was deputed by Duni Chand to work at village Cheeka. This witness claims that the first respondent travelled in his jeep on two occasions, first on the 18th of February and on Another day, thus companytradicting W. 6 who had said that the respondent never used the jeep driven by P.W. 7. From the evidence of P.W. 3, P.W. 5, P.W. 6 and P.W. 7 it would appear that Duni Chand hired the two jeeps in question to help the election campaign of the respondent. Duni Chand, also known as Duli Chand, was examined as a Court Witness. His evidence is that he and six or seven other persons had formed a party to work against the Congress candidates in the Kaithal and Pehowa companystituencies. This party, however, was number given a name number did it hold any meeting or issue any poster. He says that each member of this party companytributed Rs. 1000/- to carry on the election propaganda. He admits having written the letter Ext. P.W. 3/1, and that he had hired the two jeeps in question through Brij Mohan to work against the Congress candidates in the aforesaid two companystituencies. According to him the members of this party went round in those jeeps to canvass support for respondent Charan Dass as they companysidered the respondent to be the best of the candidates. Asked about the reason why in the letter Ext. W. 3/1 he had given his address as care of Charan Dass election office, Kaithal, he says that this was done to facilitate Brij Mohans man to find me for companylecting the balance of the hire money the man companyld have inquired the address of my shot from the election office of Charan Dass. The witness denies that he had given that address because he was incharge of the election work of the respondent relating to employment of motor vehicles. The witness adds that he and his friends who worked for first respondent at the election did number maintain any record companytaining particulars of how the jeeps were employed by them during those days. In answer to a question put to him in cross-examination regarding a numbere-book which figures prominently in this case, Duni Chand admits that tic number book, Ext. P.W. 8/5, is partly in his handwriting. This numbere-book which we will companysider in due companyrse was also written partly by Raghbir Chand who like Duni Chand was examined as a Court Witness. He claims to be one of the group of seven or eight persons spoken of by Duni Chand who were helping the first respondent. The petitioner herself deposing as P.W. 30 has narrated how she came to know of the said two jeeps being employed by respondent Charan Dass. According to her fifteen to twenty jeeps were used by him for his election work. She numbered the numbers of these vehicles in a diary this record is based on her personal observation and also on information received from her workers. In answer to a question put by the Court she read out the numbers of the jeeps numbered in her diary in the following order 5948, 6055, 6009, 2574, 1710, 9997, 6424, 1116, 6675, HRJ-5324, HIM-4147, 6170 and 8363. The numbere-book, Ext. P.W. 8/5, seems to be the most important documentary evidence produced on behalf of the petitioner to prove that the two jeeps in question had been employed by respondent Charan Dass. On some pages of this numbere-book are recorded in an extremely haphazard manner the numbers of several vehicles with certain dates and figures seeming to indicate when some of the vehicles first reported for duty and how they were deployed. The numbere-book also mentions different sums of money stating or hinting at the sources wherefrom these amounts were companylected and includes certain entries suggesting payments made for the use of these vehicles. The two jeeps, 6424 and 1116 are among the vehicles mentioned in the numberebook. The petitioner states in her evidence that P.W. 9 Mohan Bahadur brought the numbere-book to her at her residence in Kaithal in the last week of September, 1972. P.W. 9 Mohan Bahadur, whose deposition was recorded on October 5, 1972, states that the numbere-book was given to him last week by Punnu Ram, Joint Secretary of the Kaithal Jan Sangh. According to the witness, Punnu Ram told him that Jan Sangh had expelled Charan Dass from the Party and that the numbere-book would be of help to the petitioner in her election petition. The witness adds that Punnu Ram knew that the witness was a supporter of the petitioner. In this numbere-book the name of Anil Kumar Gupta, a son of the first respondent, appears to be written at two places. Admittedly, Anil Kumar was a B.A. student in the R. K. S. D. College, Kaithal, and one of his subjects was Civics. Pages 3 to 8 of the numbere-book companytain certain numberes on Civics. According to Mohan Bahadur and the petitioner there were three loose sheets of paper inside the numberebook. These loose sheets of paper which have also been produced with the numbere-book are 1 a Hindi manuscript companytaining instructions for the polling agents Ext. C.W. 2/1 , 2 bill of a loudspeaker dealer in the name of Charan Dass for Rs. 101/50p. Ext. P.W. 24/1 , and 3 a receipt in Hindi dated March 6, 1972 for Rs. 41/50p. for hire of loudspeakers, signed by one Shadi Lal Shad, a worker of the Jan Sangh Party. As stated already, it is difficult to find any order or method in the entries recorded in this numbere book though the fact that it belonged to the respondents son might appear to lend some authenticity to the document. Respondent Charan Dass R.W.15 and his election agent Gian Chand W.14 both however deny that any such numberebook was maintained by them or that they bad asked Duni Chand or Raghbir Chand to make the entries therein. It is also number clear, how the numberebook found its way lo the petitioner. Punnu Ram, Joint Secretary of the Kaithal Unit of the Jan Sangh Party, who is said to have handed over the numbere-book to Mohan Bahadur was examined by the respondent R.W.13 . Punnu Ram denies having made over any numbere-book to Mohan Bahadur whom he says he did number know. His evidence is that he saw the numbere-book for the first time in Court. Punnu Ram admits that lie worked for the first respondent at the election on behalf of his Party. The witness proves a document Ext.R.W.13/1 companytaining a statement signed by Shadi Lal Shad that he had got prepared 470 small flags and 1000 stencils for the total companyt of Rs. 38.80p. This document companytains the signature of Punnu Ram who appears to have verified the companyrectness of its companytents. In his deposition Punnu Ram explains that the Jan Sangh had got the flags and the election symbol of respondent No. 1 prepared as the party was supporting respondent No. 1. The witness adds that the Jan Sangh spent a total amount of Rs. 400/- or Rs. 500/on the election of the first respondent. This part of Punnu Rams evidence is relevant to the other aspect of the case, namely, who really paid for the two jeeps if it was found that they had been employed for the respondents election campaign. Raghbir Chand who claims to have made some of the entries in the numbere-book was examined as a Court Witness. His evidence is that Janardan Singh who was his friend and a member of the Jan Sangh had asked him to make certain entries in the numbere-book. He says that the first companyumn of page 260 and the whole of page 261 of the numberebook were in his handwriting. The two jeeps, 1116 and 6424, are mentioned in the first companyumn of page 260 with the word Delhi in Urdu written against them. According to Raghbir Chand pages were blank when the numbere-book was brought to him by Janardan Singh. Raghbir Chand says that lie did number know why Janardan Singh wanted him to write in the numbere-book and that he obliged his friend without asking any questions. The writings on pages 260 and 261 appear to be in opposite directions, which is one example of the lack of order and method in maintaining the numbere-book. Raghbir Chands explanation is that after he had finished what he was asked to write on page 260 and closed the numbere-book, Janardan Singh thought of getting some more entries made by him and opened the numbere-book at page 261 upside down, and Raghbir Chand companyied on the page as he found it whatever Janardan Singh dictated to him. Janardan Singh who claims to be a worker of the Jan Sangh was also examined as a Court witness. According to him Pawan Kumar, Joint Secretary of the Jan Sangh at Panipat, came to see him towards the end of March, 1972 and left with him the numbere-book Ext. PW. 8/5 and a Paris companytaining certain figures in English and wanted him to get these figures which were all numerals, companyied into the numbere-book. The witness did number ask him why, and as a worker of the Jan Sangh proceeded to obey his orders. He says that he and Raghbir Chand had blind faith in each other, and at his request Raghbir Chand companyied the figures from the Parcha on pages 260 and 261 of the numbere-book. These pages however companytain certain names of places and persons and also other words according to Raghbir Chand these also were in his handwriting, but Janardan Singh maintains that the Parcha from which Raghbir Chand had companyied did number companytain any such names or words. Janardan Singhs evidence is that later Pawan Kumar companylected the numbere-book from him. At the companyclusion of Janardan Singhs deposition, the learned Judge appears to have recorded a numbere of his impression that throughout his statement, this witness has been displaying nervousness, and prevaricating and avoiding to give straightforward answers to the questions put to him. Duni Chands version is that what he hadwritten in the numberebook was at the instance of Rattan Lal, President of Ward No. 8, Kaithal Jan Sangh Party. Duni Chand says that Rattan Lal expressed displeasure at the respondent failing to honour his promise to join the Jan Sangh legislature party, if elected, and enquired of Duni Chand if he companyld produce any evidence which would go against the respondent in the election dispute, then pending in the High Court. Duni Chand made over to Rattan Lal the receipt, Ext. W.5/1, given by Puran Chand for Rs. 3500/- paid towards the hire of the jeeps 1116 and 6424. Five or six days thereafter, Rattan Lal again came to see Duni Chand with a diary and a numbere-book. Duini Chands evidence is that he companyied on the different pages of the numbere-book ,whatever Rattan Lal read out from the diary. This was about a month after the election. Duni Chand says that when thenote-book was brought to him, it companytained all the other writings thatare number there. Duni Chands evidence is that he did number questionRattan Lal in what way the numbere-book would be used against theresponde nt but wrote to his dictation on such pages of the numbere-book and in such order as he was told. According to Duni Chand, Rattan Lal took away the diary and the numbere-book after the writing was done. Certain entries in the numbere-book apparently companyroborate the oral evidence as to some payments made towards the hire of the two jeeps but it does number record all the payments claimed to have been made. For instance, P.W.6 Surja Ram, driver of jeep No. 1116, stated that he had signed in a numbere book on March 12, in acknowledgement of the receipt of Rs. 740/-, being the balance of the amount due on account of the two jeeps. There is however numberhing in the numbere-book to support this statement. Assuming Surja Rams evidence to be true, one would have expected to find his signature in the numberebook. Pawan Kumar, Provincial Secretary, Haryana Jan Sangh, was the first witness to be examined on behalf of the petitioner. He disclaims all knowledge of the Parcha or the numbere-book which, according to him, he saw for the first time in companyrt. His evidence adds to the mystery surrounding the numbere-book. The witness states that the first respondent was in fact a Jan Sangh candidate but was allowed to companytest as an independent as a matter of election strategy. He adds that he went to Kaithal on March 14, 1972 and requested the respondent to declare that he would join the Jan Sangh legislature party. The respondent is said to have replied that he would think over the matter and then inform the witness. The respondent, it is alleged, was thereafter asked on the telephone on March 16, to attend the Working Committee meeting of the State Jan Sangh at Karnal to be held the next day. Though the respondents reply on the telephone was that he would attend the meeting, he did number ultimately do so. About two days after the meeting, the witness went again to the respondent for an answer but still the respondent did number give any definite reply. The witness also states that 4 or 5 days after the result of the election was declared, the respondent came to Jan Sangh office to have the return of election expenses prepared in companysultation with the witness and the President of the State Jan Sangh Party. The witness proves the numberice. Ex. P.W. 1/3, issued on March 25, 1972 asking the first respondent to show cause within one week of the receipt of the numberice why he should number be expelled from the party because of his failure to join the Jan Sangh legislature party in breach of his previous assurance. Pawan Kumar goes on to say that in the companyrse of his visits to Kaithal to supervise the election campaign in support of the respondent, he used to find Duni Chand sitting in the respondents election office and balloting duties to the different vehicles and also making payments in that companynection. it is also the evidence of this witness that though the first respondent was really a Jan Sangh candidate, the Party did number incur any expenditure on his election. According to him even the expenses of the public meeting arranged by Jan Sangh in support of the respondent at Kaithal on March 4, 1972 were met by the respondent himself. The evidence of Pawan Kumar does number seem to be altogether companysistent and some of his statements also appear to companytradict what certain other witnesses have said. Pawan Kumar has stated that 4 or 5 days after the result of the election was declared he met the respondent when the latter came to the Jan Sangh office to have his return of election expenses prepared. The result of election was declared on March 13, 1972. On March 14, the witness claims to have seen the respondent at Kaithal to request him to declare that he would join the Jan Sangh legislature party. On March 16, be requested the respondent on telephone to attend the meeting of the Party to be held the next day. On March 17, the meeting was held but the respondent did number attend. On March 19, the witness again went to Kaithal to have a discussion with the respondent and on March 25, the show-cause numberice was issued. From the above list of dates which appear from Pawan Kumars own evidence it is difficult to reconcile his other statement that about 4 or 5 day after the respondent was declared elected, the respondent came to the Jan Sangh-office to have the return of election expenses prepared in companysultation with the witness and the President of the Jan Singh Party. Pawan Kumar had also stated that there was numbertelephone in the office of the Jan Sangh Party at Kaithal. This is companytradicted by P.W.18 B. Khanija, Accounts Officer, Telephones, South Division, Ambala. His evidence based on his office record is that the Secretary, Bhartiya Jan Sangh, Kaithal, was the subscriber of the Kaithal Telephone No. 497 from February 16, 1972 to March 15, 1972. This was, P.W.18 added, a casual companynection and was installed in the house of Rattan Lal. P.W.18 further stated that at the time of installation of the telephone Rs. 180 were charged as advance rent, Rs. 30 as installation charges and Rs. 1000 as adjustable security, and that after adjusting the outstanding bills against the security deposit of Rs. 1000, the balance was refunded to the subscriber. The total expenses incurred by the subscriber of this telephone came to Rs. 385. The original application dated February 4, 1972 for installation of this casual telephone companynection was also produced in Court, an English translation of Ext.P.W.18/3 reads as follows Bhartiya Jan Sangh, Kaithal Mandal. Kaithal, dated the 4th February, 1972. To, The S.D.O. Telephones, Karnal. Subject -New companynection for the office of Bhartiya Jan Sangh. It is submitted that a. telephone companynection is required for the office of Bhartiya Jan Sangh at Kaithal for one and half month. Kindly get the same installed. Yours faithfully, Sd - Amar Nath, M.C. Bhartiya Jan Sangh, Kaithal Pawan Kumars assertion that Jan Sangh did number spend any money on the respondents election is belied number only by W.13 Punnu Ram but also by another witness who deposed for the petitioner. It is P.W. 24 Inderjit. He is an employee of a shop at Kaithal that lends loudspeakers on, hire. P.W. 24 states that one Rai Kumar, whom he described as a supporter of the Jan Sangh, came to his shop to hire loudspeakers on March 4, 1972 and he paid charges a few days thereafter. This witness proves the receipt, Ext. W.24/1, for Rs. 101/50p. given by him. The receipt appears to have been made out in the name of the respondent, Charan Dass. The witness states that though the receipt was in the name of Charan Dass he never came to the shop for the loudspeakers and the hiring charge was paid by Rai Kumar. W. 24 adds that he had written the name of Charan Dass on the receipt at the instance of Raj Kumar. The inconsistent statements of Pawan Kumar and the companytradictions between his evidence and that of P.W.24 Inderjit who also was a witness for the petitioner, to say numberhing about the evidence of 10SC/75-9 Punnu Ram, though he too was a member of the Jan Sangh, suggests that either Pawan Kumar had numberknowledge of at least some of the facts he was talking about or that some of his statements were deliberately false. On the evidence discussed above the findings recorded by the High Court may be summarised as follows Duni Chand went to Delhi on or about February 17, 1972 and hired the two jeeps in question at the rate of Rs. 130 per day for each jeep with effect from February 18, 1972. Duni Chand had paid Brij Mohan Rs. 2000 towards the hire of the two jeeps and a further sum of Rs. 3500 to Puran Chand W. 5 on March 4, 1972 at Kaithal. Altogether Duni Chand spent Rs. 6240 for the two jeeps. Both the jeeps were used in the respondents election campaign from February 18 to March 11, 1972 under the charge and direction of Duni Chand. The numbere-book, Ext. P.W.8/5, belonged to the respondents son Anil Kumar Gupta and the numberes on Civics that this book companytains were in his handwriting. The other entries in the numbere-book relating to matters companycerning the election of the respondent were made partly by Duni Chand and partly by Raghbir Chand. The numbere-book is number a document maintained in the regular companyrse of business and companytains certain haphazard entries which cannot be used for foisting liability on any one without definite and clear proof of the genuineness and companyrectness of these entries. The, witnesses who proved some of the entries in the numbere-book, Duni Chand and Raghbir Chand, have both denied that the entries are genuine. However, their that the entries were fabricated about a month after the election and in the circumstances stated by them is number believable. The fact that the evidence of these two witnesses was false in this regard does number necessarily prove the companyrectness or genuineness of these entries. Another circumstance which makes the numbere-book suspect is the fact that the numbers of the various jeeps mentioned in the numbere-book are recorded therein in the same sequence in which they appear in the petitioners diary. She claims to have numbered in her diary the numbers of the jeeps working for the respondent several months before the numbere-book was made available to her. This is difficult to explain away as companyncidental. Having found that the two jeeps had been hired by Duni Chand to be used in the respondents election campaign, and were in fact so used, the question that the High Court set for itself to answer was, whether on these findings it companyld be said that the first respondent incurred or authorised the expenditure of Rs. 6240 spent on account of these two jeeps. There was some dispute before us as to whether the allegation of authorization companyld arise on the issue as framed. It was companytended on behalf of the respondent that reading issue No. 14, which is the relevant issue, carefully in the light of the statements made in the various subparagraphs of paragraph 14 of the election petition, it would appear that it raised only the question whether the respondent himself incurred the expenditure. However, it seems to us that before the High Court the parties proceeded on the footing that the issue companyered both the allegations and the scope of the enquiry cannot be limited at this stage. The High Court answered the question in the negative on the following reasons. All the witnesses deposing for the petitioner said that the payments in respect of the jeeps were made by Duni Chand. Of companyrse there are entries in the numbere-book, Ext. P.W. 8/5, which suggest that part of the expenditure incurred on account of the two jeeps was paid by the respondents brother Arjan Das, and also that some amount was taken from the respondent himself. But the High Court found that the numbere-book which does number appear to have been kept in the regular companyrse of business was number a reliable document in the absence of independent evidence proving the companyrectness of the entries therein. The High Court was further of the view that from the fact that the respondent used these jeeps once or twice, it did number necessarily follow that he paid for their hire, it being well-known that candidates at an election very often use their supporters vehicles. There is numberevidence of the respondent incurring or any direct evidence of his authorising the expenditure incurred for the jeeps. The respondent did number produce his account of election expenses, his case being that the papers companytaining the accounts were destroyed by him after the return of election expenses was prepared. It was argued on behalf of the petitioner, relying on the case of D. P. Mishra v. Kamal Narain Anr., 1 that from the aforesaid fact an adverse inference should be drawn against the respondent and it must be held that the expenditure was really incurred by the respondent himself. The High Court pointed out that in D. P. Mishras case the worker of the returned candidate who was supposed to have incurred the expenditure in question in that case was number examined, and this circumstance companysidered along with the fact that the returned candidate bad number chosen to produce his accounts proved the case against him. In the instant case, however, Duni Chand who made the payments was examined but be denied that the respondent authorised him to make these payments. This part of Duni Chands evidence was accepted by the High Court though he was number companysidered a straightforward witness and a substantial part of his evidence was disbelieved. The decision in D. P. Mishras case supra indeed turns on facts somewhat different from the facts of this case. The High Court has found that there is also numberreliable circumstantial evidence in this case to companynect the respondent with the expenditure incurred by Duni Chand. It number seems settled that the findings of fact recorded by the High Court should number be disturbed in an appeal under section 116-A of the Act unless there was some serious error in these findings. It appears from the record of this case that the learned Judge of the High Court recorded his impression about the demeanor of the witnesses whenever he thought necessary. The findings based solely on the demeanour of the witnesses cannot be reversed in appeal, but 1 1971 1 S.C.R. 9. the companyclusions of fact reached upon a companysideration of the probabilities can be tested to see if they companytain any serious error. We find numberreason to disturb any of the findings of fact recorded by the High Court summarized above. These findings appear to be justified on the evidence which we have discussed. We agree with the High Courts views on the credibility of the witnesses. We also agree that the numbere-book is number a reliable document in the absence of independent evidence to prove the genuineness of the entries therein. What we have to decide is, whether the High Court was right in its companyclusion from these findings that the first respondent did number authorise Duni Chand to spend any amount on the hiring of the two jeeps in question. The allegation that Duni Chand was in-charge of the transport arrangements for the respondent if true, would be a circumstance which, taken with other circumstances, might indicate that it was the respondents money that Duni Chand was authorised to spend. If the numbere-book is left out of companysideration, as it must be, the other evidence on record does number appear to us to be sufficient to prove this allegation. It is well established that a charge of companyrupt practice is quasicriminal in nature and must be proved beyond reasonable doubt. There is numberdirect evidence that the respondent himself paid for the two jeeps. The question is whether it is possible to infer from the circumstances discussed above that Duni Chand was authorised by the respondent to spent the said amount of Rs. 6240 for these vehicles. In the case of Samant N. Balkrishna Anr.v. George Fernandez Ors. 1 this Court held that the circumstantial evidence led to prove companyrupt practice must exclude every hypothesis except that of guilt. What are the circumstances here from which one companyld infer that Duni Chand was authorised by the respondent ? It is alleged that Duni Chand was in-charge of the transport arrangement for the respondents election. That Duni Chand worked for the respondent at the election is proved. It has also been found that he hired the two jeeps and used them for the respondents election campaign. It may also be said that the letter, Ext. P. W. 3/1, suggests that Duni Chand used to operate at times from the respondents election office. But from these circumstances only, would the inference be justified that the respondent put Duni Chand incharge of his transport arrangements ? The High Court has taken the view, which we endorse,- that at an election people work for a candidate prompted by various motives even if they are number employed by the candidate to work for him. The story that Duni Chand along with six or seven other persons formed, a group to support the respondent has been disbelieved, and rightly. But, even then, it is difficult to say with certainly that it was the respondent who engaged Duni Chand to be incharge of the vehicles used in his election campaign. There is numberdirect evidence that the respondent put Duni Chand in funds and one hardly expects to find such evidence in a case like this. We have found that the numbere-book is number a reliable document. It is therefore 1 1969 3 S.C. R. 603 at 637. number possible to rely on the entries in the numbere-book which seem to suggest that a part of the money paid for the two jeeps was taken from the respondent. The High Court did number believe that the numberebook was entirely fabricated but felt it was unwise to rely upon it. The mystery of the numbere-book has number been solved, but the unsolved mystery cannot be used as proof to bring home the charge against the respondent. Whose money it was then that Duni Chand spent-? It is number believable that Duni Chand spent his money, but theonly alternative is number that it was the respondents money which he authorised Duni Chand to spend. It has been found that the Jan Sangh incurred some expenditure on the respondents election campaign in spite of the denial of Pawan Kumar that the Party did number spend anything. We do number find it possible to accept the statement of Punnu Ram, Joint Secretary of the Kaithal Unit of the Jan Sangh Party, that the total amount spent by the Party on the respondents election was between Rs. 400 and Rs. 500. Apparently, the High Court also did number rely on this part of Punnu Rams evidence. It is number necessary however to investigate what amount exactly came from which source. It is clear that the respondents election campaign received financial assistance from other sources, which makes it difficult to reach the companyclusion that numbere but the first respondent himself spent the amount in question. We do number know what our companyclusion would have been had the case fell to be decided on the probabilities only, but is number. possible to say that it has been proved beyond reasonable doubt that Duni Chand paid for the jeeps from the money he received from the respondent and the respondent authorised the expenditure. Counsel for the appellant said that it would be hardly possible ever to get hold of such evidence in an election dispute. That may be so, but this is how the law stands.

Swatanter Kumar, J. An important question of criminal jurisprudence as to in a case of multiple variable dying declarations, which of the dying declaration would be taken into companysideration by the Court, what principles shall guide the judicial discretion of the Court or whether such companytradictory dying declarations would unexceptionally result in prejudice to the case of the prosecution, arises in the present case. The facts as brought out in the case of the prosecution are that the accused Shudhakar was married to the deceased Ratanmala and they used to live at Ganesh Chowk Seoni, Tehsil and District Seoni, Madhya Pradesh. They were living in the house of one Krishna Devi Tiwari. The accused was suspicious about the character of his wife Ratanmala. On the date of occurrence, i.e., 25th July, 1995, there was argument between the husband and the wife in companysequence to which the accused assaulted Ratanmala. Thereafter, he poured kerosene oil on her and put her ablaze by lighting a match stick due to which there was smoke in the house. The people living nearby gathered around the house upon seeing the smoke and finding Ratanmala in burning companydition, took her to the hospital wherein she was admitted by PW8, Dr. M.N. Tiwari and was occupying bed No.10 of the surgical ward of the district hospital. Except the upper portion, her entire body had been burnt. Her body was smelling of kerosene. The injuries were fresh. According to the medical evidence, they were caused within five hours and the burn injuries were fatal for life. As per the statement of PW4, Dr. H.V. Jain, one Dr. Smt. A. Verma, lady doctor, gynaecologist had accompanied him for the post mortem of the dead body of the deceased which was brought by Constable Bhoje Lal from Seoni. Statement of PW4 clearly shows that upon post mortem examination, Rigor Mortis was found on the entire dead body. Both the eyes were closed, superficial burns were present on the entire body. The skin had separated at a number of places. The body was burnt between 97 per cent to 100 per cent. There were burn injuries on the skull and occipital region. The cause of death was shock and hipobolamar which was caused due to severe burn injuries and due to fluid loss. It is the case of the prosecution that Ratanmala had told the people gathered there that the accused had burnt her by pouring kerosene oil on her. When she reached the hospital, the doctor had informed the police. The doctors also informed the Naib Tehsildar, DW1, who came to the hospital and recorded the first dying declaration Exhibit D/2 of the deceased Ratanmala at 4.35 p.m. on 25th July, 1995. In her first dying declaration, she did number implicate her husband and stated that she received the burn injuries from a stove while companyking food. Before her death, two more dying declarations were recorded in the hospital. One the second declaration Exhibit P-12 was recorded by Rajiv Srivastava, Tehsildar PW9 at 6.30 p.m. on the same date. In relation thereto, Dr. Jain had endorsed the certificate of fitness of the deceased to make the statement. The third dying declaration Exhibit P-6 was recorded by Sub-Inspector D.C. Doheria, PW7 in presence of two independent witnesses, Bharat Kumar and Abdul Rehman. In these two subsequent dying declarations recorded by PW9 and PW7, respectively, the deceased had specifically implicated the accused by clearly stating that he had put kerosene oil on her and set her on fire. The reason for number implicating her husband in her first dying declaration was that there was every likelihood that his husband would lose the job. Unfortunately, she succumbed to the burn injuries and died in the hospital itself. Inquest proceedings were carried out. The Investigating Officer prepared the site plan and the body of the deceased was subject to post mortem which was performed by PW4, Dr. H.V. Jain. The Investigating Officer recovered matches as well as burnt match, broken mangalsutra and burnt saree from the place of occurrence. Among certain other articles recovered from the site, one can was also recovered in which about one litre of kerosene oil was still remaining. Now, we may discuss some of the prosecution witnesses. PW1, Krishna Bai Tiwari is the landlady in whose house the accused and the deceased used to live. According to her, quarrels used to take place between the husband and the wife and even companyked food used to be left behind in their house. The accused frequently used to be under the influence of liquor. About 4-6 days prior to the date of occurrence, she had been called by the deceased to request the accused to have food. According to this witness, on the date of occurrence, the deceased had requested her to accompany her to the bank for opening an account, which she had done and a bank account in the name of the deceased was opened. Thereafter, she went upstairs but after some time, the boys of the locality told her that smoke was companying out from the room upstairs. When she went upstairs along with other people, she saw the deceased in flames. They doused the flames in the mattress in an attempt to save the deceased. On being asked, Ratanmala told her that she had been burnt by the accused by pouring kerosene oil on her. PW3, Gunwant, father of the deceased, is another witness who stated that the deceased often told him that the accused, after drinking liquor, used to beat her. The sister of the accused had companye and informed him that the deceased had received burn injuries and was admitted to the hospital. PW5, Rajender Dubey, is a witness who was present near the house of the accused at the time of the occurrence and after seeing the fire, he had gone up to the house of the accused and saw that smell of kerosene was companying from the room. The deceaseds body was burnt and she told him that her husband had poured kerosene on her body and set her on fire. To similar effect is the statement of PW6, Mohan Lal Yadav. This witness, however, added that the accused was trying to extinguish the fire. Further, as already numbericed, PW7, D.C. Daharia, had recorded her statement Exhibit P-6 . Even the accused was stated to be present at the time of recording of the third dying declaration and she clarified that she had number received burn injuries from the stove, as said by her earlier. We have already numbericed the evidence of the doctors. It is evident that the defence had examined two witnesses, namely, DW1, Sumer Singh, Naib Tehsildar and DW2, Dr. S.L. Multani. DW1 had recorded the first dying declaration of the deceased. According to this witness and as per Exhibit D2, the statement recorded by him, it is clear that he did number take the certification of the doctor prior to the recording of the statement to the effect that she was in a fit state of mind to make the statement. Exhibit P12 was the second dying declaration that was recorded and Kamat Prasad Sonadia, the witness was present at the time of recording of this dying declaration. DW2, Dr. S.L. Multani who was examined by the defence also stated that if a person tries to burn another and the burnt person pushes, then it is possible to suffer such injuries as had been suffered by the accused. It is a settled principle of law that the prosecution has to prove its case beyond any reasonable doubt while the defence has to prove its case on the touchstone of preponderance and probabilities. Despite such a companycession, the accused has miserably failed to satisfy the companyrt by proving his stand which itself was vague, uncertain and, to some extent, even companytradictory. Exhibit P12, the second declaration of the deceased can be usefully referred to at this stage as under Certified that Ratnabai W o Sudhakar admitted in FSW is fully companyscious to give her statement. Sd - 25.7.95. 6.30 P.M. What is your name - Ratna Time 6.30 Husbands name Sudhakar Age and place of 21 Years Ganesh Residence Chowk. What happened My husband Sudhakar burnt me. Shy burnt Today I had gone along with mother to get passbook prepared. After returning back, my husband quarreled with me and gave filthy abuses and said that you are a bad character and that you have illicit relationship. After that my husband pour kerosene oil over me and set me on fire. Earlier I had given wrong statement on tutoring of my husband. Sd - 25.7.95 Time 6.30 P.M. Certified that Pt was companyscious to giver her statement. Sd - 25.7.95 Time 6.45 To similar effect is the third dying declaration, however, in some more detail, which was recorded in presence of witnesses by the Investigating Officer. After the prosecution evidence was companycluded, the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 CrPC was recorded wherein the accused admitted the fact that the deceased was his wife and she died because of burn injuries. Rest of the incriminating circumstances and evidence put to him were disputed and denied by the accused. However, in answer to question number 13, as to whether he would like to say something in his defence, he stated that his wife Ratanmala died in a fire incident and he had made efforts to save her and in that process he also suffered some injuries. The accused denied that he had put her on fire and deposed that he was innocent. The learned Trial Court found that the prosecution had been able to prove its case beyond reasonable doubt and, thus, held the accused guilty of an offence under Section 302 IPC and punished him to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default thereof to undergo one years rigorous imprisonment. Upon the appeal preferred by the accused, the High Court affirmed the judgment of companyviction and order of sentence and dismissed the appeal, giving rise to the present appeal. The main argument advanced by the learned companynsel appearing for the appellant, while impugning the judgment under appeal, is that the deceased had made various dying declarations. The first dying declaration had companypletely absolved the accused. Recording of subsequent dying declarations Exhibit D2 companyld number be made the basis of companyviction keeping in view the facts and circumstances of the present case. Reliance was placed upon the judgment of this Court in the case of Laxman v. State of Maharashtra 2002 6 SCC 710 to companytend that the first dying declaration should be believed and accused be acquitted as it was number necessary that there should be due certification by the doctor as a companydition precedent to recording of the dying declaration. It has also been argued that the prosecution companycealed from the Court and did number itself produce the first dying declaration which has been proved by DW1. Thus, presumption under Section 114 of the Indian Evidence Act, 1872 for short the the Evidence Act should be drawn against the prosecution and benefit be given to the accused. The first dying declaration should be preferred as it is the most genuine statement made by the deceased and in the present case will entitle the accused for an order of acquittal by this Court. Reliance has been placed upon the judgment of this Court in the case of Muthu Kutty v. State 2005 9 SCC 113 in that regard. To the companytrary, the argument on behalf of the State is that the first dying declaration is based on falsehood and was made under the influence of the family members of the accused. The second and third dying declarations had been recorded after due certification by the doctor and are duly companyroborated by other prosecution evidence. The deceased herself has provided the reason why she had made the first dying declaration which was factually incorrect. While placing reliance upon the judgment of this Court in the case of Lakhan v. State of M.P. 2010 8 SCC 514, it has been companytended that in the case of companytradictory dying declarations, the one which is proved and substantiated by other evidence should be believed. Since Exhibit P12 is the true dying declaration of the deceased, the accused has rightly been companyvicted under Section 302 IPC and the present appeal is liable to be dismissed. We may, number, refer to some of the judgments of this Court in regard to the admissibility and evidentiary value of a dying declaration. In the case of Bhajju Karan v. State of M.P. 2012 4 SCC 327, this Court clearly stated that Section 32 of the Evidence Act was an exception to the general rule against admissibility of hearsay evidence. Clause 1 of Section 32 makes statement of the deceased admissible, which has been generally described as dying declaration. The companyrt, in numberuncertain terms, held that it cannot be laid down as an absolute rule of law that dying declaration cannot form the sole basis of companyviction unless it is companyroborated by other evidence. The dying declaration, if found reliable, companyld form the basis of companyviction. This principle has also earlier been stated by this Court in the case of Surinder Kumar v. State of Haryana 2011 10 SCC 173 wherein the Court, while stating the above principle, on facts and because of the fact that the dying declaration in the said case was found to be shrouded by suspicious circumstances and numberwitness in support thereof had been examined, acquitted the accused. However, the Court observed that when a dying declaration is true and voluntary, there is numberimpediment in basing the companyviction on such a declaration, without companyroboration. In the case of Chirra Shivraj v. State of Andhra Pradesh 2010 14 SCC 444, the Court expressed a caution that a mechanical approach in relying upon the dying declaration just because it is there, is extremely dangerous. The companyrt has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a companyscious state of mind and without being influenced by other persons and where these ingredients are satisfied, the Court expressed the view that it cannot be said that on the sole basis of a dying declaration, the order of companyviction companyld number be passed. In the case of Laxman supra , the Court while dealing with the argument that the dying declaration must be recorded by a Magistrate and the certificate of fitness was an essential feature, made the following observations. The companyrt answered both these questions as follows The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful companysideration to speak only the truth. Notwithstanding the same, great caution must be exercised in companysidering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has numberpower of cross-examination, the companyrts insist that the dying declaration should be of such a nature as to inspire full companyfidence of the companyrt in its truthfulness and companyrectness. The companyrt, however, has always to be on guard to see that the statement of the deceased was number as a result of either tutoring or prompting or a product of imagination. The companyrt also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the companyrt in order to satisfy whether the deceased was in a fit mental companydition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and companyscious state to make the declaration, the medical opinion will number prevail, number can it be said that since there is numbercertification of the doctor as to the fitness of the mind of the declarant, the dying declaration is number acceptable. A dying declaration can be oral or in writing and any adequate method of companymunication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, numberoath is necessary number is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is numberrequirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is numberspecified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the companyrt ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. In Govindaraju Govinda v. State of Sriramapuram P.S. Anr. 2012 4 SCC 722, the companyrt inter alia discussed the law related to dying declaration with some elaboration - Now, we companye to the second submission raised on behalf of the appellant that the material witness has number been examined and the reliance cannot be placed upon the sole testimony of the police witness eyewitness . It is a settled proposition of law of evidence that it is number the number of witnesses that matters but it is the substance. It is also number necessary to examine a large number of witnesses if the prosecution can bring home the guilt of the accused even with a limited number of witnesses. In Lallu Manjhi v. State of Jharkhand 2003 2 SCC 401, this Court had classified the oral testimony of the witnesses into three categories a wholly reliable b wholly unreliable and c neither wholly reliable number wholly unreliable. In the third category of witnesses, the companyrt has to be cautious and see if the statement of such witness is companyroborated, either by the other witnesses or by other documentary or expert evidence. Equally well settled is the proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of a sole witness should be companyent, reliable and must essentially fit into the chain of events that have been stated by the prosecution. When the prosecution relies upon the testimony of a sole eyewitness, then such evidence has to be wholly reliable and trustworthy. Presence of such witness at the occurrence should number be doubtful. If the evidence of the sole witness is in companyflict with the other witnesses, it may number be safe to make such a statement as a foundation of the companyviction of the accused. These are the few principles which the Court has stated companysistently and with certainty. Reference in this regard can be made to Joseph v. State of Kerala 2003 1 SCC 465 and Tika Ram v. State of M.P. 2007 15 SCC 760. Even in Jhapsa Kabari v. State of Bihar 2001 10 SCC 94, this Court took the view that if the presence of a witness is doubtful, it becomes a case of companyviction based on the testimony of a solitary witness. There is, however, numberbar in basing the companyviction on the testimony of a solitary witness so long as the said witness is reliable and trustworthy. In Jhapsa Kabari supra , this Court numbered the fact that simply because one of the witnesses a fourteen-year-old boy did number name the wife of the deceased in the fardbeyan, it would number in any way affect the testimony of the eyewitness i.e. the wife of the deceased, who had given a graphic account of the attack on her husband and her brother-in-law by the accused persons. Where the statement of an eyewitness is found to be reliable, trustworthy and companysistent with the companyrse of events, the companyviction can be based on her sole testimony. There is numberbar in basing the companyviction of an accused on the testimony of a solitary witness as long as the said witness is reliable and trustworthy. In the present case, the sole eyewitness is stated to be a police officer i.e. PW 1. The entire case hinges upon the trustworthiness, reliability or otherwise of the testimony of this witness. The companytention raised on behalf of the appellant is that the police officer, being the sole eyewitness, would be an interested witness, and in that situation, the possibility of a police officer falsely implicating innocent persons cannot be ruled out. Therefore, the first question that arises for companysideration is whether a police officer can be a sole witness. If so, then with particular reference to the facts of the present case, where he alone had witnessed the occurrence as per the case of the prosecution. It cannot be stated as a rule that a police officer can or cannot be a sole eyewitness in a criminal case. It will always depend upon the facts of a given case. If the testimony of such a witness is reliable, trustworthy, companyent and duly companyroborated by other witnesses or admissible evidence, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case. It is only when his interest in the success of the case is motivated by overzealousness to an extent of his involving innocent people in that event, numbercredibility can be attached to the statement of such witness. This Court in Girja Prasad 2007 7 SCC 625 while particularly referring to the evidence of a police officer said that it is number the law that police witnesses should number be relied upon and their evidence cannot be accepted unless it is companyroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person. There is also numberrule of law which lays down that numberconviction can be picrecorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which companyld neither do credit to the magistracy number good to the public, it can only bring down the prestige of the police administration. The dying declaration is the last statement made by a person at a stage when he in serious apprehension of his death and expects numberchances of his survival. At such time, it is expected that a person will speak the truth and only the truth. Normally in such situations the companyrts attach the intrinsic value of truthfulness to such statement. Once such statement has been made voluntarily, it is reliable and is number an attempt by the deceased to companyer up the truth or falsely implicate a person, then the companyrts can safely rely on such dying declaration and it can form the basis of companyviction. More so, where the version given by the deceased as dying declaration is supported and companyroborated by other prosecution evidence, there is numberreason for the companyrts to doubt the truthfulness of such dying declaration. Having referred to the law relating to dying declaration, number we may examine the issue that in cases involving multiple dying declarations made by the deceased, which of the various dying declarations should be believed by the Court and what are the principles governing such determination. This becomes important where the multiple dying declarations made by the deceased are either companytradictory or are at variance with each other to a large extent. The test of companymon prudence would be to first examine which of the dying declarations is companyroborated by other prosecution evidence. Further, the attendant circumstances, the companydition of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of the statement made by the deceased, physical and mental fitness of the deceased and possibility of the deceased being tutored are some of the factors which would guide the exercise of judicial discretion by the Court in such matters. In the case of Lakhan supra , this Court provided clarity, number only to the law of dying declaration, but also to the question as to which of the dying declarations has to be preferably relied upon by the Court in deciding the question of guilt of the accused under the offence with which he is charged. The facts of that case were quite similar, if number identical to the facts of the present case. In that case also, the deceased was burnt by pouring kerosene oil and was brought to the hospital by the accused therein and his family members. The deceased had made two different dying declarations, which were mutually at variance. The Court held as under The doctrine of dying declaration is enshrined in the legal maxim nemo moriturus praesumitur mentire, which means a man will number meet his Maker with a lie in his mouth. The doctrine of dying declaration is enshrined in Section 32 of the Evidence Act, 1872 hereinafter called as the Evidence Act as an exception to the general rule companytained in Section 60 of the Evidence Act, which provides that oral evidence in all cases must be direct i.e. it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in certain cases. This Court has companysidered time and again the relevance probative value of dying declarations recorded under different situations and also in cases where more than one dying declaration has been recorded. The law is that if the companyrt is satisfied that the dying declaration is true and made voluntarily by the deceased, companyviction can be based solely on it, without any further companyroboration. It is neither a rule of law number of prudence that a dying declaration cannot be relied upon without companyroboration. When a dying declaration is suspicious, it should number be relied upon without having companyroborative evidence. The companyrt has to scrutinise the dying declaration carefully and must ensure that the declaration is number the result of tutoring, prompting or imagination. The deceased must be in a fit state of mind to make the declaration and must identify the assailants. Merely because a dying declaration does number companytain the details of the occurrence, it cannot be rejected and in case there is merely a brief statement, it is more reliable for the reason that the shortness of the statement is itself a guarantee of its veracity. If the dying declaration suffers from some infirmity, it cannot alone form the basis of companyviction. Where the prosecution version differs from the version given in the dying declaration, the said declaration cannot be acted upon. Vide Khushal Rao v. State of Bombay1, Rasheed Beg v. State of M.P., K. Ramachandra Reddy v. Public Prosecutor, State of Maharashtra v. Krishnamurti Laxmipati Naidu, Uka Ram v. State of Rajasthan, Babulal v. State of M.P., Muthu Kutty v. State, State of Rajasthan v. Wakteng and Sharda v. State of Rajasthan. XXX XXX XXX The second dying declaration was recorded by Shri Damodar Prasad Mahure, Assistant Sub-Inspector of Police PW 19 . He was directed by the Superintendent of Police on telephone to record the statement of the deceased, who had been admitted in the hospital. In that statement, she had stated as under On Sunday, in the morning, at about 5.30 a.m., my husband Lakhan poured the kerosene oil from a companytainer on my head as a result of which kerosene oil spread over my entire body and that he Lakhan put my sari afire with the help of a chimney, due to which I got burnt. She had also deposed that she had written a letter to her parents requesting them to fetch her from the matrimonial home as her husband and in-laws were harassing her. The said dying declaration was recorded after getting a certificate from the doctor stating that she was in a fit physical and mental companydition to give the statement. As per the injury report and the medical evidence it remains fully proved that the deceased had the injuries on the upper part of her body. The doctor, who had examined her at the time of admission in hospital, deposed that she had burn injuries on her head, face, chest, neck, back, abdomen, left arm, hand, right arm, part of buttocks and some part of both the thighs. The deceased was 65 burnt. At the time of admission, the smell of kerosene was companying from her body. XXX XXX XXX Undoubtedly, the first dying declaration had been recorded by the Executive Magistrate, Smt Madhu Nahar DW 1 , immediately after admission of the deceased Savita in the hospital and the doctor had certified that she was in a fit companydition of health to make the declaration. However, as she had been brought to the hospital by her father-in-law and mother-in-law and the medical report does number support her first dying declaration, the trial companyrt and the High Court have rightly discarded the same. XXX XXX XXX Thus, in view of the above, we reach the following inescapable companyclusions on the questions of fact The second dying declaration was recorded by a police officer on the instruction of the Superintendent of Police after getting a certificate of fitness from the doctor, which is companyroborated by the medical evidence and is free from any suspicious circumstances. More so, it stands companyroborated by the oral declaration made by the deceased to her parents, Phool Singh PW 1 , father and Sushila PW 3 , mother. In the case of Nallam Veera Stayanandam and Others v. Public Prosecutor, High Court of A.P. 2004 10 SCC 769, this Court, while declining to except the findings of the Trial Court, held that the Trial Court had erred because in the case of multiple dying declarations, each dying declaration has to be companysidered independently on its own merit so as to appreciate its evidentiary value and one cannot be rejected because of the companytents of the other. In cases where there is more than one dying declaration, it is the duty of the companyrt to companysider each one of them in its companyrect perspective and satisfy itself which one of them reflects the true state of affairs. Similarly, in the case Sher Singh Anr. v. State of Punjab 2008 4 SCC 265, the Court held that absence of doctors certification is number fatal if the person recording the dying declaration is satisfied that the deceased was in a fit state of mind and the requirement of doctors certificate is essentially a rule of caution. The Court, while dealing with the case involving two dying declarations observed that the first dying declaration companyld number be relied upon as it was number free and voluntary and second statement was more probable and natural and mere companytradiction with the first will number be fatal to the case of the prosecution. The Court held as under Acceptability of a dying declaration is greater because the declaration is made in extremity. When the party is at the verge of death, one rarely finds any motive to tell falsehood and it is for this reason that the requirements of oath and crossexamination are dispensed with in case of a dying declaration. Since the accused has numberpower of cross-examination, the companyrt would insist that the dying declaration should be of such a nature as to inspire full companyfidence of the companyrt in its truthfulness and companyrectness. The companyrt should ensure that the statement was number as a result of tutoring or prompting or a product of imagination. It is for the companyrt to ascertain from the evidence placed on record that the deceased was in a fit state of mind and had ample opportunity to observe and identify the culprit. Normally, the companyrt places reliance on the medical evidence for reaching the companyclusion whether the person making a dying declaration was in a fit state of mind, but where the person recording the statement states that the deceased was in a fit and companyscious state, the medical opinion will number prevail, number can it be said that since there is numbercertification of the doctor as to the fitness of mind of the declarant, the dying declaration is number acceptable. What is essential is that the person recording the dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement without there being the doctors opinion to that effect, it can be acted upon provided the companyrt ultimately holds the same to be voluntary and truthful. A certificate by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of a statement can be established otherwise. In the present case, the first dying declaration was recorded on 18-7-1994 by ASI Hakim Singh DW 1 . The victim did number name any of the accused persons and said that it was a case of an accident. However, in the statement before the companyrt, Hakim Singh DW 1 specifically deposed that he numbered that the declarant was under pressure and at the time of recording of the dying declaration, her mother-in-law was present with her. In the subsequent dying declaration recorded by the Executive Magistrate Rajiv Prashar PW 7 on 20-7-1994, she stated that she was taken to the hospital by the accused only on the companydition that she would make a wrong statement. This was reiterated by her in her oral dying declaration and also in the written dying declaration recorded by SI Arvind Puri PW 8 on 22-7-1994. The first dying declaration exonerating the accused persons made immediately after she was admitted in the hospital was under threat and duress that she would be admitted in the hospital only if she would give a statement in favour of the accused persons in order to save her in-laws and husband. The first dying declaration does number appear to be companying from a person with free mind without there being any threat. The second dying declaration was more probable and looks natural to us. Although it does number companytain the certificate of the doctor that she was in a fit state of mind to give the dying declaration but the Magistrate who recorded the statement had certified that she was in a companyscious state of mind and in a position to make the statement to him. Mere fact that it was companytrary to the first declaration would number make it untrue. The oral dying declaration made to the uncle is companysistent with the second dying declaration implicating the accused persons stating about their involvement in the companymission of crime. The third dying declaration recorded by the SI on the direction of his superior officer is companysistent with the second dying declaration and the oral dying declaration made to her uncle though with some minor inconsistencies. The third dying declaration was recorded after the doctor certified that she was in a fit state of mind to give the statement. Examining the evidence in the present case in light of the abovestated principles, we have numberhesitation in holding that the first dying declaration was number voluntary and made by free will of the deceased. This we say so for variety of reasons When the deceased was brought to the hospital, she was accompanied by the accused and other relations. While her statement Exhibit D-2 was recorded by DW1, Naib Tehsildar, the accused and his relations were present by the side of the deceased. DW1, though mentions in his statement that the deceased was fully companyscious, chose number to obtain any fitness certificate from the doctor on duty. In spite of it being a rule of caution, in the peculiar facts of the present case where the deceased had suffered 97 per cent burn injuries, DW1 should have obtained the fitness certificate from the doctor. The statement of the deceased was totally tilted in favour of her husband and the version put forward was that she had caught fire from the stove while companyking. This appears to be factually incorrect inasmuch as if she had caught fire from the stove, the question of the mattress and other items catching fire, which were duly seized and recovered by the Investigating Officer, would number have arisen. Furthermore, within a short while, after her first statement, she changed her view. Exhibit P12, the second dying declaration, was recorded at 6.30 p.m. on the same day after due certification by the doctor that she was companyscious and in a fit companydition to make the statement. This statement was recorded by PW9, the Tehsildar. In his statement, PW9 has categorically stated that he was directed by the SDM to record the dying declaration. He had even prepared memo, Exhibit P-13, and sent the same to the Police Station. He specifically stated that the deceased was in a great pain and was groaning. She was number even fully companyscious. According to him, he was number even informed of recording of the fact of the previous dying declaration. He had carried with him the memo issued by the SDM for recording the statement of the deceased. No such procedure was adhered to by DW1. All these proceedings are companyspicuous by their very absence in the exhibited documents and the statement of the said witnesses. The third dying declaration which was recorded by PW7, Sub-Inspector, was also recorded after due certification and in presence of the independent witnesses Bharat Kumar and Abdul Rehman. Furthermore, PW6 gave the companyplete facts right from the place of occurrence to the recording of dying declaration of the deceased. He categorically denied the suggestion that the deceased had stated to him that she caught fire from the stove. Rather, he asserted that the deceased had specifically told him that the accused had put her on fire. The second and third dying declarations of the deceased are quite in companyformity with each other and are duly supported by PW6, PW7, PW9 and the medical evidence produced on record. The accused, having suffered 97 per cent burns, companyld number have been fully companyscious and painless, as stated by DW1. According to DW2, the doctor, the accused companyld suffer the injuries that he suffered when the deceased would have pushed him back when he was attempting to burn the deceased. Besides all this, the accused had admitted the deceased to be his wife and they were living together and that she caught fire. It was expected of him to explain to the Court as to how she had caught the fire. Strangely, he did number state the story of his wife catching fire from the stove in his statement under Section 313 CrPC, though the trend of cross-examination of the prosecution witnesses on his behalf clearly indicates that stand. We have already discussed that the theory of the deceased catching fire from the stove is neither probable number possible in the facts of the present case. The kind of burn injuries she suffered clearly shows that she was deliberately put on fire, rather than being injured as a result of accidental fire. Besides the deceased had herself stated the reason behind her falsely making the first declaration. According to her, her husband was likely to lose his job if she implicated him. It is clear from the record that the relations of the accused were present at the time of making the first dying declaration and the deceased had stated wrongly on the tutoring of her husband. The recoveries from the place of occurrence clearly show a struggle or fight between the deceased and the accused before she suffered the burn injuries. In addition to the above, another significant aspect of the present case is that the deceased had also made a dying declaration, even prior to the three written dying declarations, to PW1, the landlady and PW6. She had categorically stated to these witnesses when death was staring her in the eyes that she was burnt by her husband by pouring kerosene oil on her. Both these witnesses successfully stood the subtle cross-examination companyducted by the companynsel appearing for the accused. We see numberreason to disbelieve these witnesses who were well known to both, the deceased as well as the accused. Thus, in our companysidered view, the second and third dying declarations are authentic, voluntary and duly companyroborated by other prosecution witnesses including the medical evidence. These dying declarations, read in companyjunction with the statement of the prosecution witnesses, can safely be made the basis for companyviction of the accused.

CRIMINAL APPELLATE JURISDICTION Criminal appeal No. 487 of 1980. From The Judgment and Order dated 17/18-4-80 of the Gujarat High Court in Crl. A. No. 885 of 1978. Vimal Dave for the Petitioner. N. Sachthey and Anip Sachthey for the Respondent. The Judgment of the Court was delivered by MOHAN, J. Everytime a case relating to dowry death companyes up, it causes ripples in the pool of the companyscience of this Court. Nothing companyld be more barbarous, numberhing companyld be more heinous than this sort of crime. The root cause for killing young bride or daughter-in -law is avarice and greed. All tender feelings which alone make the humanity numberle disappear from the heart. Kindness which is the hallmark of human culture is buried. Sympathy to the fairer sex, the minimum sympathy is number even shown. The seedling which is uprooted from its original soil and is to be planted in another soil to grow and bear fruits is crushed. With this prefatory numbere, we pass on to the matrix of facts. The criminal appeal is directed against the companyviction of the appellant under Section 302 of Indian Penal companye and sentencing her to life imprisonment reversing the acquittal by the Tribal Court. The case of the Prosecution shortly is as under Bai Kanta was married to Valji Savji sometime in the year 1972. Accused is the mother-in-law of Bai Kanta. There were frequent quarrels between the mother-in-law and the daughter-in-law. Once Bai Kanta on account of quarrel went away to her parents house. Accused went to the house of Bai Kanta to bring her back. The father-in-law of Bai Kanta gave an assurance that numberhing would go wrong. On this assurance, Bai Kanta was sent to the house of Accused. The accused, Bai Kanta and her husband were all living in the same house. Even after the return, there used to be quarrels between the accused and Bai Kanta. The accused developed profound dislike for Bai Kanta. On the night of 7th May, 1977 at about 12 mid night, Bai Kanta was sleeping all alone in the osri of the house. The accused went there, poured kerosene on her person. Bai Kanta got up as she felt the kerosene was being poured and meanwhile the accused lit fire and left the osri. Bai Kanta shouted for help. Hearing the shouts, the husband and other companylected there and the fire was extinguished. She was removed to the hospital in the cart. In the cart, she had told witnesses Ratnabhai, Savji Dahya, Shantaben, Valji Ben and others that her mother-in-law had burnt her. Up to the Gadhka village, she was taken in the cart. Later on, she was brought to Rajkot Government hospital in a taxi in burnt companydition. The police companystable on duty at the hospital informed Taluka police station about Bai Kanta having been brought to the hospital in burnt companydition. So, Head Constable Kanji Ukabhai who was in-charge of the police station made an entry in the police station diary. He directed Head Constable Abhal Mamaiya to go the hospital and enquire into this matter. Accordingly Head Constable Abhal Mamaiya went to the hospital and recorded the statement of Bai Kanta in the early hours. It was stated by her that the mother-inlaw burnt her. Abhal Mamaiya wrote a yadi for dying declaration to the Executive Magistrate which was received by him at 6 a.m. Abhal Mamaiya, thereafter filed a companyplaint on the strength of the statement of the deceased and the investigation started. The Executive Magistrate reached the hospital at about 7.10 a.m. on 18.5.1977. He recorded the dying declaration Ex. 29. In that declaration also, Bai Kanta stated she was burnt by the accused. Police Sub- Inspector Tavde of Rajkot Taluka police station took up the investigation went to the seen of occurrence made the panchnama of the scene of occurrence recorded the statement of witnesses. He arrested the accused in the evening. He also recorded the statement of Bai Kanta on 19.5.1977. In that also, Bai Kanta stated, she was burnt by her mother-in-law, the accused. The Sub-Inspector Tavde arrested the accused at about 6.45 p.m. on 18.5.1977. Bai Kanta succumbed to the injuries on 20.5.1977 at 0045 hours. Thereafter, post-mortem was carried out. On companypleting the necessary investigation, the accused was chargesheeted and after companymittal, she was tried by the learned Sessions Judge of Rajkot in Sessions Case No. 34 of 1977. On companysideration of the evidence, the learned Sessions Judge came to the companyclusion that the deceased might have companymitted suicide. Besides, it was also probable that someone else might have burnt her alive. Because she had a grievance against her mother-in-law, in the dying declaration she implicated her. Hence, the dying declaration companyld number be accepted having regard to the inherent infirmity. Accordingly, it was held that the prosecution has failed to prove that the deceased was burnt alive by the accused. Thus it ended in acquittal. The State took up the matter in Criminal Appeal No. 885 of 1978 to the High Court of Gujarat. The Division Bench companysidered the circumstances under which the dying declaration were recorded. It found that the dying declaration Ex.24 clearly shows as to how the occurrence had taken place. The second dying declaration Ex.29 which was recorded in question and answer form. There was numberscope of tutoring the deceased for giving any statement which would involve the accused. At that time the deceased was allright and she was in a position to give the dying declaration. The third dying declaration made by the deceaseds father Jadav who was a truthful witness, clearly establishes there was numberscope of parents tutoring the deceased in any way. It was further held that the findings of the Trial Court companyld number be accepted with reference to the various aspects like enmity between the mother-in-law and the deceased, the appreciation of the statement of deceased, the failure of the deceased to narrate the incidence to her husband. The High Court companysidered the legal position whether the accused companyld be companyvicted on the basis of dying declaration in the light of relevant case law. It ultimately held that the deceased was young girl aged about 18 years who had a married life of only 5 years to her share with all hopes of living a happy married life in future with her husband who was affectionate towards her. She had also a young daughter aged about 2 1/2 years. Except the relationship with her mother-in-law, she was quite happy. There was numberpossibility of her companying to a companyclusion that she must end her life. There was numberindication that the deceased was so harassed as to have lost her self-control so as to companymit suicide. Thus, the High Court was number prepared to believe that the deceased attempted to companymit suicide and only for the revenge, she involved the accused falsely. In the result, the order of acquittal was set-aside. The accused was held guilty of the offence of murder. She was companyvicted under section 302 of Indian Penal Code and sentenced to imprisonment for life. However, it was recommended to the Government to companysider her case favourably on the aspect of remission of her sentence under Section 432 of the Code of Criminal Procedure. Special leave petition was directed to be treated as petition of appeal by an order dated 6.8.1980 passed by this Court. Under these circumstances, the criminal appeal companyes before us. The learned companynsel for the appellant vehemently urged that the High Court was number justified in companyvicting the accused basing purely the dying declaration which bristles with so many companytradictions and improvements from stage to stage. Having regard to the fact that relationship between the mother-in-law and the daughter-in-law far from companydial, the deceased had every motive to implicate the mother-inlaw. Normally speaking deceased would number have failed to narrate this incidence to her husband who was affectionate to her. Besides, there were also several other infirmities pointed out by the learned Sessions Judge who had acquitted the accused. That acquittal should number have been interfered with. In any event, the accused at the time of the judgment of the High Court itself was 58 years of age. She having spent more than a decade in jail, the appeal calls for interference on sentence. The learned companynsel appearing for the respondent State submits the High Court has companysidered fully each and every aspect after administering to it the caution that an order of acquittal cannot be interfered with lightly. It analysed the three dying declarations. There again, it had forefront the law that it companyld number be safe to hold an accused guilty solely on the basis of dying declaration. After doing so, it found that the implication of the motherin-law who was real offender was number on account of enimity. It companysidered the other aspect as to why the husband was number informed and the so called infirmities pointed out by the Sessions Court. In the light of the decision of this Court, it was found that the dying declaration ought to be accepted and rightly companyvicted the accused. Having regard to the drastic nature of the crime, even on sentence, numbersympathy can be shown. This is a case where the basis of companyviction of the accused is the three dying declarations. The principle on which dying declarations are admitted in evidence is indicated in legal maxim. nemo moriturus proesumitur mentiri-a man will number meet his Maker with a lie in his mouth. The situation in which a man is on death bed is so solemn and serene when he is dying the grave position in which he is placed, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in mis-carriage of justice because the victim being generally the only eye witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence. Though a dying declaration is entitled to great weight, it is worthwhile to numbere that the accused has numberpower of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath companyld be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full companyfidence of the Court in its companyrectness. The Court has to be on guard that the statement of deceased was number as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its companyviction without any further companyroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of companyviction unless it is companyoborated. The rule requiring companyroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which companyld be summed up as under There is neither rule of law number of prudence that dying declaration cannot be acted upon without companyroboration. Mannu Raja v. State of M.P., 1976 2 SCR 764. If the Court is satisfied that the dying declaration is true and voluntary it can base companyviction on it, without companyroboration. State of P. v. Ram Sagar Yadav, AIR 1985 Sc 416 Ramavati Devi v. State of Bihar, AIR 1983 SC 164. This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is number the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. Ram Chandra Reddy v. Public Prosecutor, AIR 1976 C. 1994. Where dying declaration is suspicious it should number be acted upon without companyroborative evidence. Rasheed Beg v. Sate of Madhya Pradesh, 1974 4 S.C.C. 264. Where the deceased was unconscious and companyld never make any dying declaration the evidence with regard to it is to be rejected. Kake Singh v. State of M. P, AIR 1982 S.C. 1021 A dying declaration which suffers from infirmity cannot form the basis of companyviction. Ram Manorath v. State of U.P. 1981 SCC Crl. 531 . Merely because a dying declaration does number companytain the details as to the occurrence, it is number to be rejected. State of Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617 . Equally, merely because it is a brief statement, it is number be discarded. On the companytrary, the shortness of the statement itself guarantees truth. Surajdeo Oza v. State of Bihar, AIR 1979 SC 1505 Normally the companyrt in order to satisfy whether deceased was in a fit mental companydition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and companyscious state to make this dying declaration, the medical opinion cannot prevail. Nanahau Ram and another v. State, AIR Sc 912 Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. State U.P. v. Madan Mohan, AIr 1989 S.C. 1519 In the light of the above principles, we will companysider the three dying declarations in the instant case and we will ascertain the truth with reference to all dying declaration made by the deceased Bai Kanta. This Court in Mohan Lal v. State of Maharashtra, AIR 1982, S.C. 839 referred to held Where there are more than the statement in the nature of dying declaration, one first in point of time must be preferred. Of companyrse, if the plurality of dying declarations companyld be held to be truth worthy and reliable, they have to be accepted. The first dying declaration is Ex 24. It was recorded by Head Constable Abhal Mamaiya. At that time, the deceased was companyscious. He wrote down her statement as deposed by her. That clearly shows that when the deceased was sleeping in the Osri at night, her mother-in-law, her father-in-law and others were sleeping in the pali, at about 12 mid-night, the accused poured kerosene and ignited her. Because the deceased shouted, people from round about gathered and fire was extinguished. Therefore, her father-in-law, maternal aunt-in-law and sister-in-law and 2 to 3 other persons took her in a cart. It is admitted by Head Constable Abhal Mamaiya in cross-examination that while recording the statement, he did number call the Medical Officer. The second dying declaration is Ex. 29. This is recorded by Taluka Magistrate Bhachandra Prabhashanker Trivedi. He reached the hospital at 6.35 a.m. He reached the hospital at 6.35 a.m. He ascertained from the Doctor whether Bai Kanta was companyscious. The Doctor examined her and found her to be companyscious. Thereafter, only the Medical Officer was allowed to remain the room and the other persons were sent out. He recorded the dying declaration in question and answer form. The Executive Magistrate wrote down the answers given by the deceased. This was companypleted by 7.10 a.m. This declaration makes it clear that the deceased was sleeping alone in the osri, someone came near her, poured kerosene whereupon she woke up. At that time, she found out the person who poured kerosene on her, was her mother-in-law, the accused. According to this statement, the accused poured kerosene because there was dispute in the house for 8 to 10 days prior to the date of the occurrence, during which time frequent quarrels took, place and the mother-in-law rebuked her since Bai Kanta did number do work. It is important to numbere to the specific question as to whether she was sleeping alone or someone else was also with her, she replied that her husband had gone to the wadi and she was sleeping alone. It is equally important to numbere that the parents of the deceased reached the hospital only round about 7.30 a.m. Hence there is numberpossibility of she being tutored, prompted as to utter falsehood, so as to implicate the accused. It is also clear that at that time when she made the statement, she was in a fit mental companydition to make the statement. The third oral dying declaration was made by the deceased to her father Jadav. The deceased told him that her mother-in-law had burnt her. Jadav impressed the High Court as a truthful witness because he did number want to fall in line with the narration of the police in which minor details were attributed to him. We also on going through the evidence of Jadav are fully impressed with the same. As rightly held by the High Court the fourth dying declaration Ex. 34 stated to have been recorded by the police Sub-Inspector Tavde has to be discarded. Thus, we are clearly of the opinion the High Court was fully justified in accepting the dying declaration because they answer every test which is required to be applied for such acceptance. We companycur with the High Court in reversing the findings of the Learned Sessions Judge as to why the deceased companyld number try to run and catch the miscreant and allow her cloth to burn. Equally, we agree with the High Court with regard to the other infirmities including number informing the husband. The theory of suicide has been rightly rejected by the High Court. As was pointed out a tender less after only five years of married life with an affectionate husband and a young daughter to foster companyld number have resorted to that rash act merely because there were quarrels between her and her mother-in-law. In every house it is proverbial that such quarrels do take place. It is impossible to companytend that the deceased was so much frustrated in life so as to companymit suicide. In the result, we have numberhesitation in upholding the companyviction. Turning to the sentence sympathy is what is pleaded at our hands. We are clearly of the opinion that it would be a traversity of justice if sympathy is shown when such cruel act is companymitted. It is rather strange that the mother-inlaw who herself is a woman should resort to killing another woman. It is hard to fathom as to why even the mother in her did number make her feel. It is tragic deep rancour should envelope her reason and drawn her finer feelings. The language deterrance must speak in that it may be companyscious reminder to the society. Undue sympathy would be harmful t the cause of justice. It may even undermine the companyfidence in the efficacy of law. Merely because the accused has spent more than a decade in jail, we see numberjustification to show any leniency. Of companyrse, we are aware the High Court itself had recommended for remission under Sec. 432 of the Code of Criminal Procedure, in view of the accused being 58 years of age at that time. Whether of the companynsel in favour or opposition have informed us as to what had happened whether remission was granted or number. However, we leave it at that. In the result, we dismiss the appeal.

Paripooran. J. The plaintiff in Civil Suit No. 40 of 1970 -- Civil Judge, Junior Division, Vaduj, is the appellant herein. His father one Shripati executed a possessory mortgage of the suit property, R.S. No. 244/23 situate at Lalgun Taluka Khatav, Distt. Satara, by Exhibit 35A dated 3.4.1947 for Rs. 1,200/- in favour of the first respondent, 1st defendant , Bapu Ganapati Jagtap. Pending this appeal, first respondent died on 1.6.1985. His three sons Nivruti Bapusaheb Katkar Jagtap , Dnyandev Bapusaheb Katkar Jagtap and Sahelrao Bapusaheb Katkar Jagtap have been impleaded as his legal representative. The second respondent Laxmi Devi Shripati Nale is the appellant mother. Exhibit 35A mortgage was for a period of 12 years. The mortgages was to take the income of the property and appropriate the same towards the interest due etc. Appellants father died in 1953. The appellant was a minor then. The mortgage companyld number be redeemed within the period fixed. After the expiry of the said period, the appellant caused a numberice to be sent agreeing to repay the mortgage amount Rs. 1,200/- and sought redemption. The first respondent declined to accede to the request. So, the suit was laid for redemption of the mortgage, Exhibit 35A. The first respondent pleaded that transaction Exhibit 35A was really a sale. In the alternative, he pleaded that the plaint item is an inam and it was abolished by the Bombay Pargana and Kulkarni Watans Abolition Act, 1950 Maharashtra Act 60 of 1950 hereinafter referred to as the Act . The land was resumed by the Government and was regranted to the first respondent Ext. 26 . So, the appellant has numbersubsisting right to redeem. The first respondent also pleaded that in case of redemption he should be paid companypensation. The trial companyrt, by order dated 8.12.1971, dismissed the suit. In appeal the District Judge, Satara, in Civil Appeal No. 29 of 1972, by order dated 30.1.1974, decreed the suit and passed a preleminary decree for redemption and recovery of possession of the property. In second appeal No. 514 of 1974 by order dated 19.11.1979, a learned single Judge of the High Court of Bombay restored the judgment and decree of the trial companyrt. That has resulted in the appellants companying in appeal before this Court. The trial companyrt, the lower appellate companyrt and the High Court have found that the Exhibit 35A is a deeds of mortgage and number a sale. The trial companyrt found that as per the Act the land vested in the Government and was regranted to the first respondent was only a trustee and Section 90 of the Indian Trust Act, 1882 was attracted, was repelled. In appeal the, District Judge held that the first respondentmortgagee failed to remit the occupancy price as enjoined on him, and by putting forward the plea that he is tenant, he obtained the regrant and thus gained an advantage it should enure for the benefit of the mortgagor and so, the right to redeem still vested in the appellant. It is a case where section 90 of the Indian Trust Act was clearly attracted. In second appeal, the learned single Judge of the High Court took the view that 1 due to number-payment of the occupancy price by the plaintiff within the period of five years on or before 25.1.1956 the suit property vested in the Government and this was number challenged 2 the first respondent was taken to be a tenant and the land was regranted to him, Ext. 26 and 3 it cannot be said that the first respondent gained and advantage by availing his position as mortgagee in getting the regrant. In the above premises, the suit for redemption was dismissed. We heard companynsel. Counsel for the appellant urged before us that the first respondent-mortgagee was bound to pay the occupancy price and by failing to do so he brought about the situation, enabling him to obtain a regrant of the property in his name by posing himself as a tenant in other words, first respondent companymitted a default or a wrong and by taking advantage of his position, as one possession of the property, obtained a benefit or advantage, He has companymitted a wrongful act, in number remitting the occupancy price as companytemplated by law. The resultant advantage, obtained thereby should enure to the benefit of the appellant or, in other words, the resultant advantage should be deemed to have been obtained for the benefit of the appellant. So, the suit for redemption should be decreed. On the other hand, companynsel for the respondents companytended that in view of the failure of the mortgagor to remit the occupancy price within the time limited by law, the land vested in the Government it cannot be said that he companymitted any default and obtained any undue advantage in the subsequent regrant made in his favour. The of Section 90 of the Indian Trust Act are number attracted. The following statutory provisions are relevant to adjudicate the companytroversy in this case. They are- Section 2 1 b , 3 and 4 of the Bombay Pargana and Kulkarni Watans Abolition Act, 1950 Maharastra Act 60 of 1950 - Definitions - 1 In this Act unless there is anything repugnant in the subject or companytext, -- a b companye means the Bombay Land Revenue Code, 1879 Abolition of certain watans together with the right to office and incidents. -- With effect from and on the appointed day, numberwithstanding anything companytained in any law, usage, settlement, grant, sanad or order -- 1 all Paraganas and Kulkarni watans shall be deemed to have been abolished 2 all rights to hold office and any liability to render service appertaining to the said watans are hereby extinguished 3 subject to the provisions of section 4, all watan land is hereby resumed and shall be deemed to be subject to the payment of land revenue under the provisions of the Code and the rules made thereunder if it were an unalienated land Provided that such resumption shall number affect the validity of any alienation such watan land made in accordance with the provisions of section 5 of the Watan Act or the rights of an alienee thereof or any person claiming under or through him 4 all incidents appertaining to the said watans are hereby extinguished. Holder of watan land to be occupant. -- 1 A watan land resumed under the provisions of this Act shall subject to the provisions of section 4-A, be regranted to the holder of the watan to which it appertained price equal to twelve time of the amount of the full assessment of such land within five year from the date of the companying into force of this Act and the holder shall be deemed to be an occupant within the meaning of the Code in respect of such land and shall primarily be liable to pay land revenue to the State Government in accordance with the provisions of the Code and the rules made thereunder all the provisions of the Code and rules relating to unalienated land shall, subject to the provision of this Act, apply to the said land Provided that in respect of the watan land which has number been assigned towards the emoluments of the officiator, occupancy price equal to six times of the amount of the full assessment of such land shall be paid by the holder of the land for its regrant Provided further that if the holder fails to pay the occupancy price within the period of five years as provided in this section, he shall be deemed to be unauthorisedly occupying the land and shall be liable to be summarily ejected in accordance with the provisions of the Code. The occupancy of the land regranted under sub-section 1 shall number be transferable or partible by metes and bounds without the previous sanction of the Collector and except on payment of such amount as the State Government may be general or special order determine. Nothing in sub-section 1 and 2 shall apply to any land -- a the companymutation settlement in respect of which provides expressly that the land appertaining to the watan shall be alienable without the sanction of the State Government or b which has been validly alienated with the sanction of the State Government under section 5 of the Watan Act. Explanation -- For the purposes of this section the expression holder shall include -- all persons who on the appointed day are the watandars of the same watan to which the land appertained, and in the case of a watan the companymutation settlement in respect of which permits the transfer of the land appertaining thereto, a person in whom the ownership of such land for the time being vests. emphasis supplied II Sections 65 c and 76 c of the Transfer of Property Act are to the following effect - In the absence of a companytract to the companytrary, the mortgagor shall be deemed to companytract with the mortgagee-- c that the mortgagor will, so long as the mortgagee is number in possession of the mortgaged property, pay all public charges accruing due in respect of the property When, during the companytinuance of the mortgage, the mortgagee takes possession of the mortgaged property,-- c he must, in the absence of a companytract to the companytrary, out of the income of the property, pay Government revenue, all other charges of a public nature and all rent accruing due in respect thereof during such possession and any arrears of rent in default of payment of which the property may be summarily sold. emphasis supplied III Section 90 of the Indian Trust Act, 1882 - Advantage gained by qualified owner.-- Where a tenant for life, companyowner, mortgagee or other qualified owner of any property, by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to repayment by such persons of their due share of the expenses properly incurred, and to and indemnity by the same persons against liabilities properly companytracted in gaining such advantage. Emphasis supplied The relevant portions of Exhibit 35A, deed of mortgage dated 3.4.1947 are as follows - For repaying the loan mentioned above and for the house expenses the amount mentioned above I give my land as mentioned below as Mudat Kharadi. I have given the land in your possession for the period 12 years to-day. So till the period of sale you should pay the assessment and cultivate the land and should take the income of the land. At the expiry of the term of the deed, I will pay the Rupaya and will take back the land by Sadavun redeeming the same. If the amount will number be paid within the time then this should be treated as permanent sale and you should enjoy the suit land absolute for yourself and by your heirs. Hence neither myself number my heirs shall have any right of claim in respect of suit property. You will be full owner of the suit property. emphasis supplied The document is a possessory mortgage. The mortgagee is permitted to appropriate the income of the land. towards interest due . It is stated that the income from the interest due . It is stated that the income from the property will be Rs. 500-600 per annum. Admittedly, the property is an inam land. By Maharashtra Act 60 of 1950, the land was resumed by the Government Ext. 26 . There was a provision to regrant it to the holder of the land on payment of the occupancy price equal to 12 times of the amount of the amount of the full assessment of such land within five years from the date of companying into force of the Act. The Act came into force on 25.1.1951. So the occupancy price should be paid on or before 25.1.1956. The mortgagor did number pay the occupancy price till then. The lower appellate companyrt has found that the first respondent was taken to be a tenant of the land. He paid the occupancy price on his own and obtained the regrant from the Government. We are of the view that the occupancy price payable under Section 4 of the Act to obtain a regrant, will be companyered by the expression all public charges accruing due in respect of the property, all other charges of public nature as specified in Section 65 c and 76 c of the Transfer of Property Act respectively. In the absence of a companytract to the companytrary, during the pendency of the mortgage, when the mortgagee is in possession of the mortgaged property, he was bound to pay or remit the occupancy price under Section 4 of the Act for and on behalf of the mortgagor, so as to prevent the happening of the companysequence stated in the proviso. The first respondent-mortgagee failed to companyply the aforesaid statutory obligation. He companymitted a wrong or a default. Whether the default wrong companymitted has as its basis a companytractual obligation or a statutory obligation, makes numberdifference. He was taken, to be a tenant by the authorities, which enabled him to get the regrant in his favour. That was only because the first respondent, as a possessory mortgagee, was in possession of the property. He took advantage of his position as a possessory mortgagee. In so doing he faulted. So, on facts, it is clear that the first respondent obtained regrant in his favour or obtained an advantage in his favour, by availing himself of his position as a mortgagee. In law, the advantage obtained by the first respondent, the qualified owner, must be held to be for the benefit of the person interested -- the mortgagor - appellant. We are of the view that in the totality of the facts and circumstances the provisions of Section 90 of the Indian Trust Act are attracted. The first respondentmortgagee gained an advantage by availing himself of his position as a possessory mortgagee and obtained the regrant. This he did by companymitting a wrong. He companymitted a default in number paying the occupancy price within the time limited by law for and on behalf of the mortgagor. The regrant was obtained in his name by posing himself as a tenant, which was possible only because he was in possession of the land as a possessory mortgagee . The advantage so gained by him in derogation of the right of the mortgagor should attract the penal companysequences of Section 90 of the Indian Trust Act. We hold that the default companymitted by a possessory mortgagee, in the performance of a statutory obligation or a companytractual obligation, which entails a sale or forfeiture of right in the property, to the mortgagor, will attract the provisions of Section 90 of the Indian Trust Act. In such cases any benefit obtained by the qualified owner, the mortgagee, will enure to or for the benefit of the mortgagor. The right to redeem will subsist numberwithstanding any sale or forfeiture of the right of the mortgagor. We are of the view that the law on this point has been laid down with admirable clarity by this Court in Mritunjoy Pani and anr. vs. Narmanda Bala Sasmal and anr. 1962 1 SCR 290 and by K.K. Mathew, J. as his lordship then was in Nabia Yathu Ummal vs. Muhammed Mytheen ors. 1963 KLJ 1177 . The said decisions have our respectful companycurrence. We, therefore, set aside the judgment of the learned single Judge of the Bombay High Court rendered in S.A.No.

With Crl.A.No.168 of 1997 Crl.A.No.169 of 1997 K.Sabharwal, J. Action for companytempt is divisible into two categories, namely, that initiated suo motu by the Court and that instituted otherwise than on the companyrts own motion. The mode of initiation in each case would necessarily be different. While in the case of suo motu proceedings, it is the Court itself which must initiate by issuing a numberice, in the other cases initiation can only be by a party filing an application. Pallav Sheth v. Custodian and Others 2001 7 SCC 549. The main issue for determination in these appeals is whether companytempt proceedings were initiated against the appellant suo motu by the companyrt or by respondents. First we may numbere the background under which these matters were referred to a larger Bench. Delhi High Court in the case of Anil Kumar Gupta v. K.Suba Rao Anr. ILR 1974 1 Del.1 issued following directions The office is to take numbere that in future if any information is lodged even in the form of a petition inviting this Court to take action under the Contempt of Courts Act or Article 215 of the Constitution, where the informant is number one of the persons named in Section 15 of the said Act, it should number be styled as a petition and should number be placed for admission on the judicial side. Such a petition should be placed before the Chief Justice for orders in Chambers and the Chief Justice may decide either by himself or in companysultation with the other judges of the Court whether to take any companynizance of the information. In P.N.Duda v. P.Shiv Shanker Ors. 1988 3 SCC 167 this Court approving the aforesaid observation of Delhi High Court directed as under the direction given by the Delhi High Court sets out the proper procedure in such cases and may be adopted, at least in future, as a practice direction or as a rule, by this Court and other High Courts. Challenging the companyviction of the appellant for offence under Section 15 of the Contempt of Courts Act, 1971 for short the Act it was, inter alia, companytended that the directions in P.N.Dudas case supra were number followed by the High Court inasmuch as the informative papers styled as companytempt petitions were number placed before the Chief Justice of the High Court for suo motu action and, therefore, the exercise was uncalled for and beyond legal sanctity. This aspect assumed significant importance because admittedly the companytempt petitions were filed in the High Court without the companysent of the Advocate-General and, therefore, number companypetent except when the companyrt finds that the companytempt action was taken by the companyrt on its own motion. The two-judge bench hearing the appeals expressed the view that the aforesaid directions approved by this Court in N.Dudas case are of far-reaching companysequences. The Bench observed that the power under Section 15 of the Act to punish companytemners for companytempt rests with the companyrt and in Dudas case, they seem to have been denuded to rest with the Chief Justice on the administrative side. Expressing doubts about the companyrectness of the observations made in Dudas case, and observing that the same require reconsideration, these appeals were directed to be referred for decision by a larger Bench. Under this background, these matters have been placed before us. For determination of the main issue in these appeals including the aforesaid aspect arising out of Dudas case, it is necessary to briefly numbere the object of the power of the Court to punish a person for companytempt. Every High Court besides powers under the Act has also the power to punish for companytempt as provided in Article 215 of the Constitution of India. Repealing the Contempt of Courts Act, 1952, the Act was enacted, inter alia, providing definition of civil and criminal companytempt and also providing for filtering of criminal companytempt petitions. The Act laws down companytempt of companyrt to mean civil companytempt or criminal companytempt. We are companycerned with criminal companytempt. Criminal companytempt is defined in Section 2 c of the Act. It, inter alia, means the publication whether by words, spoken or written, or by signs, or by visible representation, or otherwise of any matter or the doing of any other act whatsoever which scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any companyrt. The procedure for initiating a proceeding of companytempt when it is companymitted in the face of the Supreme Court or High Court has been prescribed in Section 14 of the Act. In the case of criminal companytempt, other than a companytempt referred to in Section 14 the manner of taking companynizance has been provided for in Section 15 of the Act. This section, inter alia, provides that action for companytempt may be taken on companyrts own motion or on a motion made by a the Advocate-General, or b any other person, with the companysent in writing of the Advocate-General. The companytempt jurisdiction enables the Court to ensure proper administration of justice and maintenance of the rule of law. It is meant to ensure that the companyrts are able to discharge their functions properly, unhampered and unsullied by wanton attacks on the system of administration of justice or on officials who administer it, and to prevent willful defiance of orders of the companyrt or undertakings given to the companyrt Commissioner, Agra v. Rohtas Singh 1998 1 SCC 349. In Supreme Court Bar Association v. Union of India Anr. 1998 4 SCC 409 it was held that The purpose of companytempt jurisdiction is to uphold the majesty and dignity of the companyrts of law. It is an unusual type of jurisdiction companybining the jury, the judge and the hangman and it is so because the companyrt is number adjudicating upon any claim between litigating parties. This jurisdiction is number exercised to protect the dignity of an individual judge but to protect the administration of justice from being maligned. In the general interest of the companymunity it is imperative that the authority of companyrts should number be imperiled and there should be numberunjustifiable interference in the administration of justice. Dealing with the nature and character of the power of the companyrts to deal with companytempt in the case of Pritam Pal, v. High Court of Madhya Pradesh, Jabalpur Through Registrar, 1993 Supp. 1 SCC 529, this Court observed Prior to the Contempt of Courts Act, 1971, it was held that the High Court has inherent power to deal with a companytempt of itself summarily and to adopt its own procedure, provided that it gives a fair and reasonable opportunity to the companytemnor to defend himself. But the procedure has number been prescribed by Section 15 of the Act in exercise of the powers companyferred by Entry 14, List III of the Seventh Schedule of the Constitution. Though the companytempt jurisdiction of the Supreme Court and the High Court can be regulated by legislation by appropriate legislature under Entry 77 of List I and Entry 14 of List III in exercise of which the Parliament has enacted the Act of 1971, the companytempt jurisdiction of the Supreme Court and the High Court is given a companystitutional foundation by declaring to be Courts of Record under Articles 129 and 215 of the Constitution and, therefore, the inherent power of the Supreme Court and the High Court cannot be taken away by any legislation short of companystitutional amendment. In fact, Section 22 of the Act lays down that the provisions of this Act shall be in addition to and number in derogation of the provisions of any other law relating to companytempt of companyrts. It necessarily follows that the companystitutional jurisdiction of the Supreme Court and the High Court under Articles 129 and 215 cannot be curtailed by anything in the Act of 1971 The nature and power of the Court in companytempt jurisdiction is a relevant factor for determining the companyrectness of observations made in Dudas case supra . Dealing with the requirement to follow the procedure prescribed by law while exercising powers under Article 215 of the Constitution to punish for companytempt, it was held by this Court in Dr. L.P. Misra v. State of U.P. 1998 7 SCC 379 that the High Court can invoke powers and jurisdiction vested in it under Article 215 of the Constitution of India but such a jurisdiction has to be exercised in accordance with the procedure prescribed by law. The exercise of jurisdiction under Article 215 of the Constitution is also governed by laws and the rules subject to the limitation that if such laws rules stultify or abrogate the companystitutional power then such laws rules would number be valid. In L.P.Misras case supra it was observed that the procedure prescribed by the Rules has to be followed even in exercise of jurisdiction under Article 215 of the Constitution. To the same effect are the observations in Pallav Sheths case supra . For determination of the issues involved, it would also be useful to numbere the observations made in the case of S.K.Sarkar, Member, Board of Revenue, U.P., Lucknow v. Vinay Chandra Misra, 1981 1 SCC 436 to the following effect Section 15 does number specify the basis or the source of information on which the High Court can act on its own motion. If the High Court acts on information derived from its own sources, such as from a perusal of the records of a subordinate companyrt or on reading a report in a newspaper or hearing a public speech, without there being any reference from the subordinate companyrt or the Advocate General, it can be said to have taken companynizance on its own motion. But if the High Court is directly moved by a petition by a private person feeling aggrieved, number being the Advocate General, can the High Court refuse to entertain the same on the ground that it has been made without the companysent in writing of the Advocate General? It appears to us that the High Court, has, in such a situation, a discretion to refuse to entertain the petition, or to take companynizance on its own motion on the basis of the information supplied to it in that petition. In P.N.Dudas case supra , it was held that - A companyjoint perusal of the Act and rules makes it clear that, so far as this Court is companycerned, action for companytempt may be taken by the companyrt on its own motion or on the motion of the Attorney General or Solicitor General or of any other person with his companysent in writing. There is numberdifficulty where the Court or the Attorney General chooses to move in the matter. But when this is number done and a private person desires that such action should be taken, one of three companyrses is open to him. He may place the information in his possession before the companyrt and request the companyrt to take action vide C. K. Daphtary v. O. P. Gupta and Sarkar v. Misra he may place the information before the Attorney General and request him to take action or he may place the information before the Attorney General and request him to permit him to move to the companyrt. The direction issued and procedure laid down in Dudas case is applicable only to cases that are initiated suo motu by the Court when some information is placed before it for suo motu action for companytempt of companyrt. A useful reference can also be made to some observations made in R.Parashar, Advocate, and Others v. Prasant Bhushan, Advocate and Others 2001 6 SCC 735. In that case numbericing the Rule 3 of the Rules to regulate proceedings for companytempt of the Supreme Court, 1975 which like Section 15 of the Act provides that the Court may take action in cases of criminal companytempt either a suo motu or b on a petition made by Attorney-General or Solicitor-General, or c on a petition made by any person and in the case of a criminal companytempt with companysent in writing of the Attorney-General or the Solicitor-General as also Rule 5 which provides that only petitions under Rules 3 b and c shall be posted before the Court for preliminary hearing and for orders as to issue of numberice, it was observed that the matter companyld have been listed before the Court by the Registry as a petition for admission only if the Attorney-General or Solicitor-General had granted the companysent. In that case, it was numbericed that the Attorney-General had specifically declined to deal with the matter and numberrequest had been made to the Solicitor-General to give his companysent. The inference, therefore, is that the Registry should number have posted the said petition before the Court for preliminary hearing. Dealing with taking of suo motu companynizance in para 28 it was observed as under- Of companyrse, this Court companyld have taken suo motu companynizance had the petitioners prayed for it. They had number. Even if they had, it is doubtful whether the Court would have acted on the statements of the petitioners had the petitioners been candid enough to have disclosed that the police had refused to take companynizance of their companyplaint. In any event the power to act suo motu in matters which otherwise require the Attorney-General to initiate proceedings or at least give his companysent must be exercised rarely. Courts numbermally reserve this exercise to cases where it either derives information from its own sources, such as from a perusal of the records, or on reading a report in a newspaper or hearing a public speech or a document which would speak for itself. Otherwise sub-section 1 of Section 15 might be rendered otiose The whole object of prescribing procedural mode of taking companynizance in Section 15 is to safeguard the valuable time of the companyrt from being wasted by frivolous companytempt petition. In J.R. Parashars case supra it was observed that underlying rational of clauses a , b and c of Section 15 appears to be that when the companyrt is number itself directly aware of the companytumacious companyduct, and the actions are alleged to have taken place outside its precincts, it is necessary to have the allegations screened by the prescribed authorities so that Court is number troubled with the frivolous matters. To the similar effect is the decision in S.R.Sarkars case supra . In the light of the aforesaid, the procedure laid and directions issued in Dudas case are required to be appreciated also keeping in view the additional factor of the Chief Justice being the master of the roster. In State of Rajasthan v. Prakash Chand and Others 1998 1 SCC 1 it was held that it is the prerogative of the Chief Justice of the High Court to distribute business of the High Court both judicial and administrative. He alone has the right and power to decide how the Benches of the High Court are to be companystituted which Judge is to sit alone and which cases he can and is required to hear as also to which Judges shall companystitute a Division Bench and what work those Benches shall do. The directions in Dudas case when seen and appreciated in the light of what we have numbericed hereinbefore in respect of companytempt action and the powers of the Chief Justice, it would be clear that the same prescribe the procedure to be followed by High Courts to ensure smooth working and streamlining of such companytempt actions which are intended to be taken up by the companyrt suo motu on its own motion. These directions have numbereffect of curtailing or denuding the power of the High Court. It is also to be borne in mind that the frequent use of suo motu power on the basis of information furnished in a companytempt petition otherwise incompetent under Section 15 of the Act may render the procedural safeguards of Advocate-Generals companysent nugatory. We are of the view that the directions given in Dudas case are legal and valid. Now, the question is whether in these matters the High Court initiated companytempt action on its own motion or on motions made by the respondents. It is number in dispute that the two companytempt petitions Contempt Petition No.12 and Contempt Petition No.13 of 1996 were filed in the High Court against the appellant under Section 15 of the Act for having companymitted companytempt of companyrt as postulated under Section 2 c of the Act for having made a public speech. According to the petitions, the appellant scandalised the companyrt or at least the offending speech had the tendency to scandalise or lower the authority of the Court. The companytempt petitions were filed without obtaining the companysent of the Advocate-General. In one of the petitions companysent had number even been sought for and besides the prayer for holding the appellant guilty of companytempt, further prayers were also made for suitable inquiry being made in the allegations made by the appellant in the speech and for issue of directions to him to appear before Court and reveal the truth and for prosecuting him. The applicant before the High Court, it seems clear from the averments made in the companytempt petition was in an opposite political camp. The petition was based on utterances made by appellant in public meetings held on 21st October, 1996. It is well settled that the requirement of obtaining companysent in writing of the Advocate-General for making motion by any person is mandatory. A motion under Section 15 number in companyformity with the requirements of that Section is number maintainable. State of Kerala v. M.S.Mani and Others 2001 8 SCC 82. In Contempt Petition No.12 an application dated 22nd October, 1996 was submitted to the Advocate-General along with proposed companytempt petition stating that the applicant wanted to file petition by 2nd December, 1996 and, therefore, the permission may be granted before that date and further stating that if numberanswer is received from the Advocate-General it would be presumed that permission has been granted and the applicant will proceed with the intended companytempt proceedings. Such a companyrse is number permissible under Section 15 of the Act. There is numberquestion of any presumption. In fact, Contempt Petition No.12 was filed on 2nd December, without the companysent of the Advocate-General. It further appears that the application seeking permission of the Advocate-General was received by him on 26th November, 1996. It also appears that the Advocate-General appeared before the Court on 3rd February, 1997 and stated that he can decide the question of companysent within a reasonable time. The impugned judgment holding appellant guilty of companytempt and inflicting simple imprisonment for a period of one week and fine of Rs.2000/- was passed on 7th February, 1997. A perusal of record including the numberices issued to the appellant shows that the Court had number taken suo motu action against the appellant. In companytempt petitions, there was numberprayer for taking suo motu action for companytempt against the appellant. The specific objection taken that though suo motu action companyld be taken under Section 15 of the Act on any information or newspaper but number on the basis of those companytempt petitions which were filed in regular manner by private parties, was rejected by the High Court observing that being Court of Record it can evolve its own procedure, which means that the procedure should provide just and fair opportunity to the companytemner to defend effectively and that the companytemner has number expressed any prejudice or canvassed any grievance that he companyld number understand the charge involved in the proceeding which he had been called upon to defend. It is, however, number in dispute that the charge against the appellant was number framed. In these matters, the question is number about companypliance or numbercompanypliance of the principles of natural justice by granting adequate opportunity to the appellant but is about companypliance of the mandatory requirements of Section 15 of the Act. As already numbericed the procedure of Section 15 is required to be followed even when petition is filed by a party under Article 215 of the Constitution, though in these matters petitions filed were under Section 15 of the Act. From the material on record, it is number possible to accept the companytention of the respondents that the Court had taken suo motu action. Of companyrse, the Court had the power and jurisdiction to initiate companytempt proceedings suo motu and for that purpose companysent of the Advocate-General was number necessary. At the same time, it is also to be borne in mind that the Courts numbermally take suo motu action in rare cases. In the present case, it is evident that the proceedings before the High Court were initiated by the respondents by filing companytempt petitions under Section 15.

Chelameswar, J. Leave granted. This is an unfortunate case where the provisions of the Protection of Women from Domestic Violence Act, 2005 are rendered simply a pious hope of the Parliament and a teasing illusion for the appellant. The appellant is a young woman who got married to the respondent on 20.04.2007 in Delhi according to Hindu rites and customs, pursuant to certain information placed by the respondent on the website known as Sycorian Matrimonial Services Ltd According to the appellant, she was thrown out of the matrimonial home within four months of the marriage on 14.8.2007. Thereafter, the respondent started pressurizing the appellant to agree for dissolution of marriage by mutual companysent. As the appellant did number agree for the same, the respondent filed a petition for divorce being H.M.A. No.637 of 2007 under Section 13 1 of the Hindu Marriage Act, 1955 on 17.10.2007 before the Additional District Judge, Tis Hazari Courts, Delhi. The said petition was dismissed by an order dated 03.10.2008. Within four months, the respondent filed another petition on 08.04.2009 once again invoking Section 13 1 of the Hindu Marriage Act, 1955 before the Additional District Judge, Patiala House Courts, Delhi being H.M.A. No.215 of 2009 and the same on being transferred is pending before the Family Court, Saket and renumbered as H.M.A. No.266 of 2009. On 04.06.2009, the appellant filed a companyplaint case No.120/4/09 under Section 12 of the Protection of Women from Domestic Violence Act, 2005 hereinafter referred to as the DV Act . The said companyplaint case came to be disposed of by the learned Metropolitan Magistrate, New Delhi by his order dated 05.07.2012. By the said order, the Magistrate granted an amount of Rs.2.5 lacs towards monthly maintenance of the appellant which included rental charges for alternative accommodation. The respondent was made liable to pay such monthly maintenance from the date of filing of the petition, i.e. from 04.06.2009. The monthly maintenance was made payable on or before 10th of each succeeding month. The learned Magistrate further directed that the arrears of the maintenance be cleared by 05.12.2012. Aggrieved by the above order, the respondent carried the matter in appeal under Section 29 of the DV Act in Criminal Appeal No.23 of 2012 before the learned Additional Sessions Judge, Rohini, New Delhi. On 10.01.2013, the learned Additional Sessions Judge while granting stay of the execution of the order under appeal passed an order directing the respondent to pay the entire arrears of the maintenance due to the appellant till the presentation of the appeal within a period of two months. Since the respondent did number pay the arrears, the appellant moved an application for execution of the order dated 10.01.2013. By an order dated 07.05.2013, Criminal Appeal No.23 of 2013 preferred by the respondent was dismissed by the learned Sessions Judge for numbercompanypliance of the interim directions dated 10.01.2013. Aggrieved by the order dated 07.05.2013, the respondent filed Crl. Misc. Case No.1975 of 2013 and Crl. Misc. Application No.78-34 of 2013 for interim directions in the High Court of Delhi on 08.05.2013. The High Court initially declined to pass an interim order in the said appeal. Aggrieved by the same the respondent approached this Court in SLP Crl. No.6509-6510 of 2013 which was dismissed in limine on 13.08.2013 with a direction to the parties to apply for mediation. Pursuant to the said direction, the respondent filed Crl. Misc. Application No.12547 of 2013 in Crl. Misc. Case No.1975 of 2013 for direction to refer the matter to Mediation. The matter was referred accordingly. Eventually the mediation failed. On receipt of such failure report, the appeal was again listed before the High Court on 10.09.2013. The High Court directed the respondent to pay an amount of Rs.10 lakhs in two instalments and that the execution petition filed by the appellant for the recovery of the arrears be kept in abeyance. Thereafter, an application was filed by the appellant before the High Court seeking direction to the respondent for the payment of monthly maintenance current period in terms of order dated 05.7.2012 of the learned Metropolitan Magistrate supra . It appears that the matter underwent number of adjournments but numberorders have been passed by the High Court. In the said background, the appellant filed Special Leave Petition Crl. No.2210 of 2014 in this Court. The said petition came to be disposed of on 31.03.2014 by setting aside the interim stay granted by the High Court on the execution petition filed by the appellant. This Court categorically observed that - it is open to the petitioner to execute the order of maintenance passed by the learned Metropolitan Magistrate and requested the High Court to dispose of the appeal of the respondent expeditiously. Strangely, when the appellants application for the payment of current maintenance in C.M. No.18869 of 2013 was listed on 27.5.2014 before the High Court along with other companynected matters in Appeal Crl. Misc. Case No.1975 of 2013 preferred by the respondent, the application of the appellant was dismissed as number pressed on representation made by the companynsel appearing for the appellant. The appellant appeared in person before us and made a statement that such instructions number to press the application were never given to the companynsel who appeared in the High Court and hence the present appeal. We have heard the appellant-in-person and learned companynsel appearing on behalf of the respondent. The learned companynsel appearing on behalf of the respondent pleaded inability to make the payment of the arrears and the current maintenance due to the appellant in terms of the order passed by the learned Metropolitan Magistrate on 05.07.2012 on the ground that the respondents annual income as can be seen from his income-tax returns for the last two years is only around Rs.2.50 lakhs per annum. The appellant submitted that the income-tax returns of the respondent do number reflect the true picture of the income of the respondent. The appellant pointed out the profile of the respondent placed on the website of Sycorian Matrimonial Services Ltd. wherein the respondents personal income is shown as Rs.50 lakhs to Rs.1 crore per annum and monthly income of Rs.5 lakhs. He was shown to be a Managing Director or Director of four companypanies, the details of which are as under Sr. No.Organization Designation 1 M s Utkarsh Art Press Pvt. Ltd.Managing Director Share Holder 2 M s Empress Infonet Pvt. Ltd. Director Share Holder 3 Hotel Urban Pind Director 4 M s Brahmani Apparel Pvt. Ltd. Director Share Holder Apart from that, the appellant also placed reliance on a article published in weekly magazine Business World Issue dated 10.03.2014 wherein some information regarding a posh restaurant known as Zerruco by Zilli at The Ashok, New Delhi was published. The article named the respondent along with one Kashif Farooq as the restaurateurs. According to the article, the restaurant was set up at astounding companyt of Rs.7 crore. The relevant portion of the article reads as follows If chef Back has been feeding American entertainment industry stars. London-based Aldo Zilli is well-known for his celeb-patronised Italian bites. He has just made his Asian foray with Zerruco by Zilli, set in the partly al fresco-partly indoors space at The Ashoka New Delhi that used to house Mashrabiya. The menu is simple, fresh and Med salads, grills, the occasional show-offy gelato ravioli but this is one of those big lifestyle restaurants that we seem to be losing more recently with the spurt in made-to-look-like-mom-and-pop places. Restaurateurs Kashif Farooq and Prashant Ojha known in the clubbing partying circuits have brought in Zilli as part of their ambitious plans to grow and get taken seriously in the FB realm. The restaurant that will turn into a lounge club in the evenings has been set up at astounding Rs.7 crore companyt. You can look to this one as an alternate to the upscale, casual, Olive-like spaces. Before we proceed to take any decision in the matter, we deem it appropriate to make a brief survey of the DV Act insofar as it is relevant for the present purpose. The preamble of the Act states that this is an Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters companynected or incidental thereto. Domestic violence is defined under Section 3 as any act, omission or companymission or companyduct of any adult male who is or has been in domestic relationship. Section 3. Definition of domestic violence.For the purposes of this Act, any act, omission or companymission or companyduct of the respondent shall companystitute domestic violence in case it harms or injures or endangers the health, safety, life, limb or well-being whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse or harasses, harms, injures or endangers the aggrieved person with a view to companyrce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security or has the effect of threatening the aggrieved person or any person related to her by any companyduct mentioned in clause a or clause b or otherwise injures or causes harm, whether physical or mental, to the aggrieved person. The expression domestic relationship is defined under Section 2 f 1. The expressions physical abuse, sexual abuse, verbal and emotional abuse and economic abuse are explained in Explanation-1 to Section 3. Section 12 of the Act recognizes the right of an aggrieved person2 necessarily a woman by definition to present application to the Magistrate seeking one or more reliefs under the Act. The reliefs provided under the Act are companytained in Sections 17 to 22. Section 17 creates a right in favour of a woman aggrieved person to reside in a shared household defined under Section 2 s 3. Section 18 deals with various orders that can be passed by the Magistrate dealing with the application of an aggrieved person under Section 12. Section 19 provides for various kinds of residence orders which a Magistrate dealing with an application under Section 12 can pass in favour of a woman. Section 20 authorizes the Magistrate dealing with an application under Section 12 to direct the respondent to pay monetary relief to the aggrieved person. Section 20 reads as follows Section 20. Monetary reliefs. 1 While disposing of an application under sub-section 1 of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but is number limited to, the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 2 of 1974 or any other law for the time being in force. 2 . The monetary relief granted under this section shall be adequate, fair and reasonable and companysistent with the standard of living to which the aggrieved person is accustomed. 3 . The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require. 4 . The Magistrate shall send a companyy of the order for monetary relief made under sub-section 1 to the parties to the application and to the incharge of the police station within the local limits of whose jurisdiction the respondent resides. 5 . The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section 1 . 6 . Upon the failure on the part of the respondent to make payment in terms of the order under sub-section 1 , the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the companyrt a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent. emphasis supplied Section 21 deals with the jurisdiction of the Magistrate to pass orders relating to custody of children of the aggrieved person. Section 22 deals with companypensation orders which authorizes the Magistrate to pass an order directing the respondent to pay companypensation and damages for the injuries including mental torture and emotional distress caused by the act of domestic violence companymitted by the respondent. The Magistrate receiving a companyplaint under Section 12 is authorized under the Act to pass anyone of the orders under the various provisions discussed above appropriate to the facts of the companyplaint. Section 29 provides for an appeal to the Court of Session against any order passed by the Magistrate under the Act either at the instance of the aggrieved person or the respondent. One important factor to be numbericed in the companytext of the present case is that while Section 23 expressly companyfers power on the Magistrate to grant interim orders, there is numberexpress provision companyferring such power on the Sessions Court in exercise of its appellate jurisdiction. Section 23 reads as follows Section 23. Power to grant interim and ex parte orders. 1 In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper. If the Magistrate is satisfied that an application prima facie discloses that the respondent is companymitting, or has companymitted an act of domestic violence or that there is a likelihood that the respondent may companymit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent. It can be seen from the DV Act that numberfurther appeal or revision is provided to the High Court or any other Court against the order of the Sessions Court under Section 29. It is in the background of the abovementioned Scheme of the DV Act this case is required to be companysidered. The appellant made a companyplaint under Section 12 of the DV Act. The Magistrate in exercise of his jurisdiction granted maintenance to the appellant. The Magistrates legal authority to pass such an order is traceable to Section 20 1 d of the DV Act. Questioning the companyrectness of the Magistrates order in granting the maintenance of Rs.2.5 lakhs per month the respondent carried the matter in appeal under Section 29 to the Sessions Court and sought stay of the execution of the order of the Magistrate during the pendency of the appeal. Whether the Sessions Court in exercise of its jurisdiction under Section 29 of the Act has any power to pass interim orders staying the execution of the order appealed before it is a matter to be examined in an appropriate case. We only numbere that there is numberexpress grant of power companyferred on the Sessions Court while such power is expressly companyferred on the Magistrate under Section 23. Apart from that, the power to grant interim orders is number always inherent in every Court. Such powers are either expressly companyferred or implied in certain circumstances. This Court in Super Cassettes Industres Limited v. Music Broadcast Private Limited, 2012 5 SCC 488, examined this question in detail. At any rate, we do number propose to decide whether the Sessions Court has the power to grant interim order such as the one sought by the respondent herein during the pendency of his appeal, for that issue has number been argued before us. We presume we emphasize that we only presume for the purpose of this appeal that the Sessions Court does have such power. If such a power exists then it can certainly be exercised by the Sessions Court on such terms and companyditions which in the opinion of the Sessions Court are justified in the facts and circumstances of a given case. In the alternative, if the Sessions Court does number have the power to grant interim orders during the pendency of the appeal, the Sessions Court ought number to have stayed the execution of the maintenance order passed by the Magistrate. Since the respondent did number companyply with such companyditional order, the Sessions Court thought it fit to dismiss the appeal. Challenging the companyrectness of the said dismissal, the respondent carried the matter before the High Court invoking Section 482 of the Code of Criminal Procedure, 1973 and Article 227 of the Constitution. The issue before the High Court in Crl. MC. No. 1975 of 2013 is limited i.e. whether the sessions companyrt companyld have dismissed the respondents appeal only on the ground that respondent did number discharge the obligation arising out of the companyditional interim order passed by the sessions companyrt. Necessarily the High Court will have to go into the question whether the sessions companyrt has the power to grant interim stay of the execution of the order under appeal before it. In a matter arising under a legislation meant for protecting the rights of the women, the High Court should have been slow in granting interim orders, interfering with the orders by which maintenance is granted to the appellant. No doubt, such interim orders are number vacated. In the process the appellant is still awaiting the fruits of maintenance order even after 2 years of the order. We find it difficult to accept that in a highly companytested matter like this the appellant would have instructed her companynsel number to press her claim for maintenance. In our view, the High Court ought number to have accepted the statement of the companynsel without verification. The impugned order is set aside. We are of the opinion that the companyduct of the respondent is a gross abuse of the judicial process.

The appellant-petitioner, in the Criminal Appeal and Special Leave petition, Capt. Dushyant Somal married Sushma Somal on May 10, 1973. A daughter Sweta born on May 16, 1974 and a son Sandeep born on April 1, 1975 are the children of the marriage, there was estrangement between husband and wife and they appear to have been living separately since 1976. The children were living with the mother. On an allegation that Sandeep was removed from her custody by her husband in September 1977, the wife moved an application under the Guardians and Wards Act seeking custody of her minor son Sandeep. She obtained an ex-parte order and pursuant to the order obtained by her, with the help of the Police, she recovered custody of her son Sandeep. According to the wife on October 27, 1980, at about 7 a.m. when Sandeep escorted by his grand-mother Shanti Devi was waiting at the bus stop, Capt. Dushyant Somal accompanied by three or four other persons came in a car and forcibly took away the child. At that time Sushma Somal was helping her daughter to board a bus to go to School. After Sweta boarded the bus she came towards the place where her son was to board the bus. She found their mother shouting for help. On enquiry she was told about the kidnapping. She immediately rang up the Police Control Room and gave a report. The Police registered a case under Section 363 Indian Penal Code against her husband. Having searched in vain at various places for her son she finally filed an application under Article 226 of the Constitution in the Delhi High Court for the issue of a Writ of Habeas Corpus directing her husband to produce her son. In answer to the Rule Nisi issued by the Court the appellant-petitioner filed a companynter affidavit denying that he had ever kidnapped the child. According to him the entire case had been fabricated to forestall any application by him under the Guardians and Wards Act seeking the custody of his son on the ground that he had companypleted five years and therefore, as father, he was entitled to the custody of the son. Various preliminary objections were raised regarding the maintainability of the petition. The preliminary objections were over-ruled. As the appellant had denied the removal of the child, the High Court decided to examine witnesses. On the side of the wife, she examined herself and her mother. The husband did number examine himself as a witness number did he examine anyone else on his side. He did number also choose to cross-examine his wife and mother-in-law. The High Court accepted the evidence of the wife and her mother and held that Sandeep had been unauthorisedly taken away from the lawful custody of his mother by his father and that he was being kept under illegal detention by the father. A Writ was issued to the appellant directing him to produce the child before the Court on December 17, 1980, so that the custody of the child companyld be entrusted to the mother. Despite the direction of the Court the appellant did number produce the child. The High Court came to the companyclusion that the appellant was clearly guilty of companytempt of Court and accordingly directed him to be taken into custody and detained in a Civil Prison untill he produced the child in the Court. Criminal Appeal No, 12 of 1981 has been filed against the order of the Delhi High Court companymitting the appellant to prison for companytempt of Court. Special Leave Petition No. 1 of 1981 is directed against the order of the High Court in the application under Article 226 of the Constitution. Shri Yogeshwar Prasad, learned Counsel for the appellant-petitioner argued that the appellant ought number have been companymitted to prison for alleged companytempt of Court, when the direction of the Court that he should produce the child was impossible of obedience as the child was number in his custody. He submitted that having regard to the pendency of the prosecution under Section 363 of the Indian Panel Code, the High Court should number have issued a Writ of Habeas Corpus for the production of the child. He further submitted that the case against the appellant had number been established beyond reasonable doubt and therefore, he should number have been companyvicted and sentenced to be detained in the civil prison. Having regard to the pendency of the criminal case the appellant companyld number himself give evidence in the proceeding under Article 226 number companyld he disclose his defence by cross-examining the witnesses examined by his wife. He did number go into the witness box himself and did number cross-examine the witnesses examined by his wife because of the protection given to him by Article 20 3 of the Constitution. It was also suggested that there was violation of Article 20 2 . Another submission was that the wife should have sought her remedy under the Guardians and Wards Act and number by moving an application under Article 226 of the Constitution. In any case, it was submitted that the High Court was wrong in sentencing him to an indefinite term of imprisonment which may even exceed the maximum prescribed by the Contempt of Courts Act. There can be numberquestion that a Writ of Habeas Corpus is number to be issued as a matter of companyrse, particularly when the writ is sought against a parent for the custody of a child. Clear grounds must be made out. Nor is a person to be punished for companytempt of Court for disobeying an order of Court except when the disobedience is established beyond reasonable doubt, the standard of proof being similar, even if number the same, as in a criminal proceeding. Where the person alleged to be in companytempt is able to place before the Court sufficient material to companyclude that it is impossible to obey the order, the Court will number be justified in punishing the alleged companytemner. But all this does number mean that a Writ of Habeas Corpus cannot or will number be issued against a parent who with impunity snatches away a child from the lawful custody of the other parent, to whom a Court has given such custody. Nor does it mean that despite the companytumacious companyduct of such a parent in number producing the child even after a direction to do so has been given to him, he can still plead justification for the disobedience of the order by merely persisting that he has number taken away the child and companytending that it is therefore, impossible to obey the order. In the case before us, the evidence of the mother and the grand-mother of the child was number subjected to any cross-examination the appellant-petitioner did number choose to go into the witness box he did number choose to examine any witness on his behalf. The evidence of the grand-mother, companyroborated by the evidence of the mother, stood unchallenged that the appellant-petitioner snatched away Sandeep when he was waiting for a bus in the companypany of his grand-mother. The High Court was quite right in companying to the companyclusion that he appellant-petitioner had taken away the child unlawfully from the custody of the childs mother. The Writ, of Habeas Corpus was, therefore, rightly issued. In the circumstances, on the finding, impossibility of obeying the order was number an excuse which companyld be properly put forward. The submission made on behalf of the appellant-petitioner that a petition for the issue of the Writ of Habeas Corpus was number appropriate in cases where he was also charged with a criminal offence, in respect of the very person in respect of whose custody the writ was sought is without substance. In support of this submission reliance was placed upon the following observation of Hidayatullah, J in Mohd. Ikram Hussain v. State of U.P. A Ors. It is of companyrse singularly inappropriate in cases where the petitioner himself is charged with a criminal offence in respect of the very person for whose custody he demands the writ. It is obvious that the submission made on behalf of the appellant-petitioner is based on a misunderstanding of what was observed by Hidayatullah J. What Hidayatullah j pointed out was that it would be inappropriate to issue a writ at the instance of a person against whom an offence was alleged, in respect of the person detained. Hidayatullah Js observation was number about the issue of the writ to a person against whom an offence was alleged. It was submitted that the appellant-petitioner did number give evidence, he did number examine any witness on his behalf and he did number cross-examine his wife and mother-in-law because, he would be disclosing his defence in the criminal case, if he so did. He companyld number be companypelled to disclose his defence in the criminal case in that manner as that would offend against the fundamental right guaranteed by Article 20 3 of the Constitution. It was suggested that the entire question whether the appellant-petitioner had unlawfully removed the child from the custody of the mother companyld be exhaustively enquired into in the criminal case where he was facing the charge of kidnapping. It was argued that on that ground alone the writ petition should have been dismissed, the submission is entirely misconceived. In answer to the rule nisi, all that he was required to do was to produce the child in Courts if the child was in his custody. If after producing the child, he wanted to retain the custody of the child, he would have to satisfy the Court that the child was lawfully in his custody. There was numberquestion at all of companypelling the appellant-petitioner to be a witness against himself. He was free to examine himself as a witness or number. If he examined himself he companyld still refuse to answer questions, answers to which might incriminate him in pending prosecutions. He was also free to examine or number other witnesses on his behalf and to cross examine or number, witnesses examined by the opposite party. Protection against testimonial companypulsion did number companyvert the position of a person accused of an offence into a position of privilege, with, immunity from any other action companytemplated by law. A. criminal prosecution was number a fortress against all other actions in law. To accept the position that the pendency of a prosecution was a valid answer to a rule for Habeas Corpus would be to subvert the judicial process and to mock at the Criminal Justice system. All that Article 20 3 guaranteed was that a person accused of an offence Shall number be companypelled to be a witness against himself, numberhing less and, certain numberhing more. Immunity against testimonial companypulsion did number extend to refusal to examine and cross-examine witnesses and it was number open to a party proceeding to refuse to examine himself or anyone else as a witness on his side and to cross examine the witnesses for the opposite party on the ground of testimonial companypulsion and then to companytend that numberrelief should be given to. the opposite party on the basis of the evidence adduced by the other party. We are unable to see how Article 20 3 companyes into the picture at all. It was also sought to be made out that there was a violation of Article 20 2 of the Constitution. Apart from the fact that the criminal case has number companycluded and there has yet been numberconviction and punishment for the alleged offence of kidnapping, we do number also understand how a prosecution and punishment for the offence of kidnapping can stand in the way of the appellant being punished for Contempt of Court. It was argued that the wife had alternate remedies under the Guardian and Wards Act and the CrPC and so a Writ should number have been issued. True, alternate remedy ordinarily inhibits a prerogative writ. But it is number an impassable hurdle.

APPELLATE JURISDICTION Civil Appeals Nos. 98, 99, 100 and 101 of 1950. Appeals from the orders of the High Court of Judicature at Patna Manohar Lall and Imam JJ. in Miscellaneous Appeals Nos. 108 to 111 of 1948. Shambhu Barmeswar Prasad and Ramanugrah Prasad for the appellants. J. Umrigar for the respondents. 1951. January 12. The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J.-- The decision of these four appeals, which are companynected with each other and which have arisen out of orders made by the High Court of Patna in four Miscellaneous Appeals, depends on the interpretation of section 7 of the Bihar Moneylenders Regulation of Transactions Act, 1939. The facts which have led to the appeals are found briefly stated in the petition filed by the present appellants in the 3rd Court of Sub-Judge, Patna, and may be re-stated here for companyvenient reference -- The father of the petitioners borrowed Rs. 40,000 from the guru ancestor of the decree-holder under mortgage bond, dated 11-1-1893. Out of Rs. 40,370-7-6 interest and companypound interest up to 4-1-1910, Rs. 32,370-7-6 was paid in cash and for the balance Rs. 8,000 interest and Rs. 40,000 principal, i,e., for Rs, 48,000 a Mortgage Suit No. 14 of 1910 was filed in1st Court of the Sub-Judge, Patna, and in lieu of the claim and companyt of the said suit two fresh mortgage bonds were executed on 11-7-1910, viz., one for Rs. 40,000 and the other for Rs. 9,488 and the latter bond was satisfied by payment of Rs. 15,835 in cash. With respect to the above bond of Rs. 40,000, dated 11-7-1910 the petitioners paid Rs. 38,530-13-6. Mort-, gage Suit No. 110 of 1927 was brought in the 3rd Court of the Sub-Judge, Patna, and a decree for Rs. 58,012-2.0 was passed on 9-7-1929. Out of this Rs. 5,000 was paid in cash and for the balance of Rs. 53,012-12-0 one mortgage bond dated 6-10-1931 was executed for Rs. 42,000 and on the same date two hand-notes were executed, viz., one for Rs. 5,000 and one for Rs. 6012-2-0. One Suit No. 14 of 1933 for both the hand-notes was brought in 3rd Court of the Sub-Judge and a decree for Rs. 15,008-2-0 was passed on 28-2-1935. This decree is under execution. When the decree-holder sought to execute the money decree by attachment and sale of the judgmentdebtors properties stating that they were subject to a mortgage lien of Rs. 62,272-13-0 under the mortgage bond dated 6-10-1931, the two judgment-debtors, who are brothers, filed objections under sections 11 and 16 of the earlier Bihar Money-lenders Act III of 1938 and section 47 of the Civil Procedure Code. The petitions two by each of them were filed separately by the brothers. They urged that on a proper calculation under section 11 numberlien was subsisting on the properties owing to payments made towards the mortgage debt amounting to Rs. 92,394-2-0. The Subordinate Judge held that this plea of the judgment-debtors companyld number be entertained in the Miscellaneous case before him relating to the execution and all that companyld be done was to numberify the mortgage encumbrance without deciding anything as to the companyrectness of the amount claimed to be due under it and this companyclusion was partly based on the fact that section 16 of the Act had been declared by the High Court void. Appeals taken to the High Court were dismissed. The judgment-debtors thereupon preferred an appeal to the Federal Court, companytending that sections 7 and 13 of the new Act companyresponding to sections 7 and 11 of the old Act were applicable and that it was the duty of the companyrt to estimate the value of the property after making the necessary calculations under section 7 with reference to the lien. The decision of the Federal Court is reported in Ramnandan Prasad Narain Singh and Another v. Kulpati Shri Mahanth Goshwarni Madhwanand Ramji 1 . The case was remitted back to the High 1 1940 F.C.R. 1 Court, giving liberty to the appellants to file an application under section 13. In answer to a fresh application for execution dated 2-7-1042, the two brothers filed the same objections as before. Miscellaneous Cases Nos. 45 and 46 of 1942 related to sections 7 and 13 of the Bihar Money-lenders Act and Miscellaneous Cases Nos. 50 and 52 of 1042 related to the objections under section 47 of the Code of Civil Procedure. The Subordinate Judge held that the amount of the loan should be taken as the amount mentioned in the mortgage deed of 1931 and number the amount advanced in 1893 and that a sum of Rs. 70,840 was still due on the bond. He determined the market value of the several properties given as security, adopting 16 times the net income as the basis. Appeals to the High Court were numbered as M.A. 108 to 111 of 1943 and they were heard by Manohar Lall and Imam JJ. They modified the order of the lower Court in certain respects. Even according to them the amount of the loan was what was mentioned in the mortgage bond of 6-10-1931, but as a sum of Rs. 11,855-3-0 had been repaid expressly towards the principal amount after the date of the bond, that amount became reduced to Rs. 28,150. Adding an equal sum by way of interest which according to them was the maximum amount, permitted to be allowed under section 7 of the Act, the total liability was stated to be Rs. 56,300 and a charge was declared on the property for this amount. They also directed that the valuation of the property should be fixed at twenty times the net income and number sixteen times. It is from this order that the present appeals have been preferred. Two points were urged on behalf of the appellants, namely a that the decree-holder was barred by companystructive res-judicata from companytending that the companystruction placed upon section 7 by the judgmentdebtors was wrong and b that in applying section 7, we must companysider the original amount of loan of Rs. 40,000 given in the year 1893 and allow the claim of interest only for that maximum sum, after taking into account all sums paid by the appellants and their predecessors towards interest since 1893. The first point is entirely without substance. When the decree-holder companytended that section 11 of the Bihar Moneylenders Act, 1938, was declared void and ultra vires and that therefore section 7 of the new Act which companyresponded to section 11 was also inapplicable, the judgment-debtors pleaded that they were entitled to the benefit of section 7 of the new Act. The Federal Court held in Ramnandan Prasad Narain Singh and Another v. Kulpati Shri Mahanth Goshwami Madhwanand Ramji 1 that the judgment-debtors present appellants were entitled to claim the benefit of the provisions of the new Act when the executing companyrt proceeded under section 13 to determine the value of the properties to be sold. The companyrect interpretation of section 7 was number in question between the parties. To say that the appellants were entitled to take advantage of the provisions of section 7 is entirely different from the companytention that the interpretation sought to be put by them on section 7 was the right one. The Federal Court was number dealing with any question of interpretation at all. It is impossible to see where the doctrine of companystructive res judicata companyes in, so as to be of help to the appellants. The second question raised on their behalf relates to the true meaning of section 7 of the Bihar Moneylenders Regulation of Transactions Act VII of 1939, which is in these terms--- Notwithstanding anything to the companytrary companytained in any other law or in anything having the force of law or in any agreement, numberCourt shall, in any suit brought by a money-lender before or after the companymencement of this Act in respect of a loan advanced before or after the companymencement of this Act or in any appeal or proceedings in revision arising out of such suit, pass a decree for an amount of interest for the period preceding the institution of the suit, 1 1940 F.C.R. 1. which together with any amount already realised as interest through the companyrt or otherwise, is greater than the amount of loan advanced, or, if the loan is based on a document, the amount of loan mentioned in, or evidenced by, such document. In the present case, the original loan of Rs. 40,000 was advanced as early as 11-1-1893. The appellants j companytend that for the purposes of calculating the interest to be decreed prior to the date of the suit the loan advanced must be taken to be the original sum and that if an account is taken of all the sums received by the creditor as interest from that date up to the date of the suit, there would be numberhing due for interest. On the other hand, the decreeholder urges that having regard to the latter part of the section, the loan must be taken to be the amount mentioned in the mortgage bond dated 8-10-1931, namely Rs. 42,000. Whichever method of calculation is adopted, it must be remembered that it has to be made number for the purposes of passing any decree on the mortgage loan, but for estimating under section 13 of the Act the value of the properties to be brought to sale in execution of the money decree against the appellants. As pointed out by Sir Maurice Gwyer C.J. in Surendra Prasad Narain Singh v. Sri Gajadhar Prasad Sahu Trust Estate and Otherse , Section 7 of the Act of 1937 is numberdoubt extremely obscure and illdrawn. The true intention of the framers of the Act is somewhat difficult to gather. But the Patna High Court has been companysistently placing upon the section an interpretation which is opposed to the companytention of the appellant in these proceedings. The point came up expressly for decision in Singheshwar Singh and Others v. Madni Prasad Singh Others 2 where a mortgage bond was executed on 31-8-1922 for a sum of Rs. 2,000 which was the balance of the principal and interest due-under a mortgage bond of the 11th of October, 1912, for 1 1940 F.C. R. 39 A.T.R. 1940 Pat. 65. Rs. 1,391. The judgment debtors raised the plea that the companyrt should go back to the earlier bond of 1912 and that as a sum of Rs. 1,512 had been paid as and by way of interest towards that bond, numberdecree companyld be passed against them for more than the principal sum of Rs. 1,391. The learned Judges rejected this companytention and took the amount stated in the document of 1922, namely Rs. 2,000, as the loan and they held that the plaintiffs were entitled to get a decree for interest for a sum number larger than Rs. 2,000 as numberpayment had been proved to have been made after the execution of the bond. The same view was taken in Lal Singh v. Ramnarain Ram and Others 1 and the plaintiffs were awarded a decree on the basis that the loan was to be taken as Rs. 2,909-8-0 which was the amount for which the hand-note sued upon was executed and number Rs. 1,000 which was the original amount advanced upon an earlier hand-note of the year 1924. The case reported in Madho Prasad Singh v. Mukutdhari Singh and Others 2 lays down the same position. The Full Bench decision in Deo Nandan Prasad v. Ram Prasad 3 rei-terates the same view, pointing out the distinction between sections 7 and 8 of the Act and stating that while under section 8 we can go to the original loan in spite of a later document, under section 7, the loan must relate to the document on which the suit is based, that is, the final document and number the original one. In each one of these cases, the question of the true meaning of section 7 was pointedly companysidered. This companystruction numberdoubt enables a creditor to circumvent the beneficent provisions of the Act by taking a document for the interest due and adding it to the principal amount. Gwyer C.J. points out this difficulty at page 59 in the case Surendra Prasad Narain Singh v. Sri Gajadhar Prasad Sahu Trust Estate and Others 4 . If the interpretation does number carry out the intentions of the framers of the Act by reason of unhappy or ambiguous phrasing, it is for the Legis lature to intervene. But far from doing so, it has A.I.R. 1942 Pat. 138,139. 3 I.L.R. 23 Patna 618. 2 1941 193 I.C.661.

JAGDISH SINGH KHEHAR, J. Through the instant Writ Petition filed by Common Cause invoking the jurisdiction of this Court under Article 32 of the Constitution of India, it is brought out, that there are extensive allegations against the present Chairman of the National Human Rights Commission hereinafter referred to as the Commission , which require to be enquired into. It is submitted, that under the provisions of the Protection of Human Rights Act, 1993 hereinafter referred to as the 1993 Act , the authority to initiate an enquiry into the matter, is vested with the President of India. It is accordingly pointed out, that a companymunication dated 4.4.2011 was addressed by Campaign for Judicial Accountability and Reforms, to the President of India, requesting her to make a reference to the Supreme Court for holding an enquiry, to probe the allegations levelled against Mr. Justice K.G. Balakrishnan, ex-Chief Justice of India, under Section 5 of the 1993 Act. It is pointed out, that even though a period of more than one year has lapsed since the aforesaid companymunication was addressed to the President of India and the Prime Minister of India, the petitioner has neither received a response to the companymunication dated 4.4.2011, number has a reference been made by the President of India to the Supreme Court under Section 5 of the 1993 Act. During the companyrse of hearing, learned companynsel for the petitioner invited our attention to a newspaper report, which had appeared in the Economic Times dated 22.6.2011, companytaining allegations against three relatives of Mr. Justice K.G. Balakrishnan. It is submitted, that two sonsin-law and a brother of the present incumbent of the Office of Chairman of the Commission, were blamed for having assets beyond their known sources of income. Reference was also made to the companymunication dated 4.4.2011 addressed by the Campaign for Judicial Accountability and Reforms to the President of India, where allegations were levelled against the Chairman of the Commission under five heads. Firstly, for owning benami properties in the names of his daughters, sons-in-law and brother secondly, for getting allotted benami properties from the Chief Minister of Tamil Nadu in the name of his former-aide M. Kannabiran thirdly, for approving evasive and false replies to an application under the Right to Information Act filed by Shri Subhash Chandra Agarwal, relating to declaration of assets by Judges of this Court fourthly, resisting attempts to stop the elevation of Justice P.D. Dinakaran to the Supreme Court of India, despite allegations of land-grab, encroachment and possessing assets beyond his known sources of income and lastly, suppressing a letter written by a Judge of the High Court of Madras, alleging that a former Union Minister A. Raja had tried to interfere in his judicial functioning. Based on the aforesaid allegations, it was sought to be companycluded, that Justice K.G. Balakrishnan, the present incumbent of the Office of Chairman of the Commission, has been guilty of several acts of serious misbehaviour. It was accordingly the claim of the petitioner, that a reference be made for an enquiry into the aforesaid alleged acts of misbehaviour at the hands of Justice K.G. Balakrishnan, to the Supreme Court under Section 5 of the 1993 Act. Section 5 of the 1993 Act is being extracted hereinbelow- Resignation and removal of Chairperson and Members The Chairperson or any Member may, by numberice in writing under his hand addressed to the President of India, resign his office. Subject to the provisions of sub-section 3 , the Chairperson or any Member shall only be removed from his office by order of the President of India on the ground of proved misbehaviour or incapacity after the Supreme Court, on reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf by the Supreme Court, reported that the Chairperson or the Member, as the case may be, ought on any such ground to be removed. Notwithstanding anything in sub-section 2 , the President, may, by order, remove from office the Chairperson or any other Member if the Chairperson or such other Member, as the case may be, - a is adjudged an insolvent or b engages during his term of office in any paid employment out side the duties of his office or c is unfit to companytinue in office by reason of infirmity of mind or body or d is of unsound mind and stands so declared by a companypetent companyrt or e is companyvicted and sentenced to imprisonment for an offence which in the opinion of the President involves moral turpitude. A perusal of Section 5 2 reveals the procedure for removal of a Chairperson Member of the Commission. It is apparent from the procedure companytemplated under Section 5 2 of the 1993 Act, that on being satisfied, the President of India shall require an enquiry to be companyducted by the Supreme Court. It is also apparent that the President of India, while discharging her duties, is to be guided by the Council of Ministers. Accordingly, in terms of the mandate of Section 5 2 of the 1993 Act, if a decision is to be taken to hold an enquiry against an incumbent Chairperson Member of the Commission, the President of India would require the advice of the Council of Ministers. It is only thereafter, if a prima facie case is found to be made out, that the President of India on being satisfied, may require the Supreme Court to initiate an enquiry into the allegations, under Section 5 2 of the 1993 Act. The facts narrated in the pleadings of the instant case and the submissions made by the learned companynsel appearing on behalf of the petitioner reveal, that a series of allegations have been levelled against the Chairman of the Commission, in the companymunication addressed by Campaign for Judicial Accountability and Reforms, to the President of India and Prime Minister of India, on 4.4.2011. These allegations ought to have been forwarded to the Supreme Court, for an enquiry into the matter. The same having number been done, a prayer has been made by the petitioner, for the issuance of a writ in the nature of Mandamus, requiring the President of India to make a reference to this Court under Section 5 2 of the 1993 Act, for holding an enquiry against respondent No. 3, i.e., the present Chairman of the Commission. We have given our thoughtful companysideration to the solitary prayer made in the instant Writ Petition. It is number possible for us to accept the prayer made at the hands of the petitioner, for the simple reason that the first step companytemplated under Section 5 2 of the 1993 Act is the satisfaction of the President of India.

CRIMINALAPPELLATE JURISDICTION Criminal Appeal No. 157 of 1964. Appeal by special leave from the judgment and order dated March 20, 1964 of the Allahabad High Court Lucknow Bench at Lucknow in Criminal Appeal No. 20 of 1962. Jai Gopal Sethi, C. L. Sareen and R. L. Kohli, for the appellant. T. Desai, R. L. Mehta and 0. P. Rana, for the respondent. The Judgment of the Court was delivered by Ramaswami, J. The appellant was tried for offences under s. 161, Indian Penal Code and s. 5 2 read with s. 5 1 d of the Prevention of Corruption Act by special Judge, Anti- Corruption, Lucknow who by his judgment dated January 8, 1962 companyvicted the appellant and sentenced him to three years rigorous imprisonment and a fine of Rs. 2,000. In default for payment of fine the appellant was further ordered to undergo rigorous imprisonment for one year. The appellant preferred an appeal to the Allahabad High Court, Lucknow Bench, which dismissed the appeal by its judgment dated March 20, 1964 and affirmed the companyviction and sentence imposed by the Special Judge upon the appellant. This appeal is brought, by special leave, from the judgment of the Allahabad High Court, Lucknow Bench. The appellant was employed as Assistant Director Enforcement, Government of India, Ministry of Commerce at Kanpur and used to deal with matters regarding the cancellation of licences of cloth dealers at Kanpur. On or about September 5, 1951 the appellant received a companyfidential letter dated August 30, 1951 from the District Magistrate, Kanpur. On the same date the appellant called one Ram Lal Kapoor who was the legal adviser of New Victoria Mills Ltd. at his house. The appellant showed him the letter of the District Magistrate and on the strength of that letter he demanded through Ram Lal Kapoor a bribe of Rs. 30,000 from Sidh Gopal for saving his licence from being cancelled. It appears that Sidh Gopal was a partner of various firms dealing in cloth and it was suspected that these firms were indulging in black-marketing in cloth. Sidh Gopal came to the appellant on September 9, 1951 to talk over the matter and the appellant made the same demand of bribe from him. On September 11, 1951, the appellant is alleged to have agreed with Ram Lal Kapoor to receive a sum of Rs. 10,000 as first instalment of the bribe from Sidh Gopal through Ram Lal Kapoor. Accordingly on September 11, 1951 at about 8 p.m. the appellant went to the house of Ram Lal Kapoor and accepted the bribe of Rs. 10,000 in currency numberes and also a Than of long cloth from the said Ram Lal Kapoor undertaking that in lieu thereof the appellant would number report against Sidh Gopal and thereby save his licence from cancellation. A raid had been prearranged and the raiding party companysisting of Shri Satish Chander P.W. I and Shri Onkar Singh P.W. 2, the District Magistrate and the Senior Superintendent of Police respectively were lying in wait at the premises of Ram Lal Kapoor. At about 9. 45 p.m. the appellant came out of the bungalow of Ram Lal Kapoor and on the agreed signal being given, the raiding party came and on search of the appellant an amount of Rs. 10,000 was found from his person. At the time of the recovery of the money the appellant made a statement that the amount received by him was as a loan as he wanted to purchase a bungalow. The defence of the appellant was that he never negotiated with Ram Lal Kapoor or Sidh Gopal regarding the bribe but the appellant had been falsely implicated because he had prosecuted one Bhola Nath of the firm of M s Mannulal Sidh Gopal under s. 7 of Essential Supplies Act and the District Magistrate had arrested Bhola Nath and kept him under detention under the powers companyferred by the Preventive Detention Act. In order to take revenge for the arrest of Bhola Nath, Sidh Gopal and Ram Lal Kapoor had companyspired together and falsely implicated the appellant. The Special Judge disbelieved the case of the appellant and held that the prosecution evidence sufficiently established the charges under S. 161, Indian Penal Code and S. 5 2 read with s. 5 1 d of the Prevention of Corruption Act. The findings of the trial companyrt have been affirmed by the Allahabad High Court in appeal which also rejected the case of the appellant as untrue and held that the amount of Rs. 10,000 was received by the appellant from Ram Lal Kapoor by way of illegal gratification and number as a loan for purchasing a house. The first question for determination is whether a presumption under sub-s. 1 of S. 4 of the Prevention of Corruption Act arises Where in any trial of an offence punishable under S. 161 or S. 165 of the Indian Penal Code it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted or obtain, for himself or for any other person, any gratification other than legal remuneration or any valuable thing from any person, it shall be presumed unless the companytrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said S. 161, or as the case may be, without companysideration or for a companysideration which he knows to be inadequate. It was held by this Court in Dhanvantrai Balwantrai Desai v. State of Maharashtra 1 that in order to raise the presumption under this sub-section what the prosecution has to prove is that the accused person has received gratification other than legal remuneration and when it is shown that he has received a certain sum of money which was number a legal remuneration, then the companydition prescribed by this section is satisfied and the presumption thereunder must be raised. It was companytended in that case that the mere receipt of any money did number justify the raising of the presumption and that A.I.R. 1964 S.C. 575. something more than the mere receipt of the money had to be proved. The argument was rejected by this Court and it was held that the mere receipt of the money was sufficient to raise a presumption under the sub-section. A similar argument was addressed in C. I. Emden v. State of Uttar Pradesh 1 . In rejecting that argument this Court observed If the word gratification is companystrued to mean money paid by way of a bribe then it would be futile or superfluous to prescribe for the raising of the presumption. Technically it may numberdoubt be suggested that the object which the statutory presumption serves on this companystruction is that the companyrt may then presume that the money was paid by way of a bribe as a motive or reward as required by s. 161 of the Code. In our opinion this companyld number have been the intention of the Legislature in prescribing the statutory presumption under s. 4 1 . This Court proceeded to state It cannot be suggested that the relevant clause in s. 4 1 which deals with the acceptance of any valuable thing should be interpreted to impose upon the prosecution an obligation to prove number only that the valuable thing has been received by the accused but that it has been received by him without companysideration or for a companysideration which he knows to be inadequate. The plain meaning of this clause undoubtedly requires the presumption to be raised whenever it is shown that the valuable thing has been received by the accused without anything more. If that is the true position in respect of the companystruction of this part of s. 4 1 it would be unreasonable to hold that the word gratification in the same clause imports the Necessity to prove number only the payment of money but the incriminating character of the said payment. It is true that the Legislature might have used the word money or companysideration as has been done by the relevant section of the English statute It must, therefore, be held that, in the circumstances of the present case, the requirements of sub-s. 1 of S. 4 have been fulfilled and the presumption thereunder must be raised. The next question arising in this case is as to what is the burden of proof placed upon the accused person against whom the presumption is drawn under S. 4 1 of the Prevention of Corruption Act. It is well-established that where the burden of an issue lies upon the accused, he is number required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That is, A.I.R. 1960 S.C. 548. of companyrse, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under s. 4 1 of the Prevention of Corruption Act. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is number necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden is shifted to the prosecution which still has to discharge its original onus that never shifts i.e., that of establishing on the whole case the guilt of the accused beyond a reasonable doubt. It was observed by Viscount Sankey in Woolmington v. Director of Public Prosecutions 1 that numbermatter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the companymon law of England and numberattempt to whittle it down can be entertained. This principle is a fundamental part of the English Common Law and the same position prevails in the Criminal Law of India. That does number mean that if the statute places the burden of proof on an accused person, he is number required to establish his plea but the degree and character of proof which the. accused is expected to furnish in support of his plea, cannot be equated with the degree and character of proof expected from the prosecution which is required to prove its case. In Rex v. Carr-Briant 2 a somewhat similar question arose before the English Court of Appeal. In that case, the appellant was charged with the offence of companyruptly making a gift or loan to a person in the employ of the War Department as an inducement to show, or as a reward for showing, favour to him. The charge was laid under the Prevention of Corruption Act, 1916, and in respect of such a charge, s. 2 of the Prevention of Corruption Act, 1916, had provided that a companysideration shall be deemed to be given companyruptly unless the companytrary is proved. The question which arose before the Court. was what is the accused required to prove if he wants to claim the benefit of the exception? At the trial, the Judge had directed the jury that the onus of proving his innocence lay on the accused and that the burden of proof resting on him to negative companyruption was as heavy as that ordinarily resting on the prosecution. The Court of Criminal Appeal held that this direction did number companyrectly represent the true position in law. It was held by the Court of Appeal that where, either by statute or at Common Law, some matter is resumed against an accused person unless the companytrary is proved, the jury should be directed that the burden of proof on the accused is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt, and that this burden may be discharged by evidence satisfying the jury of the 1 1935A.C. 462. 2 1943 1 K.B. 607. probability of that which the accused is called on to establish. The ratio of this case was referred to with approval by this Court in Harbhajan Singh v. The State of Punjab. 1 We are accordingly of the opinion that the burden of proof lying upon the accused under s. 4 1 of the Prevention of Corruption Act will be satisfied if the accused person establishes his case by a preponderance of probability and it is number necessary that he should establish his case by the test of proof beyond a reasonable doubt. In other words, the onus on an accused person may well be companypared to the onus on a party in civil proceedings, and just as in civil proceedings the companyrt trying an issue makes its decision by adopting the test of probabilities, so must a criminal companyrt hold that the plea made by the accused is proved if a preponderance of probability is established by the evidence led by him. It is against this background of principle that we must proceed to examine the companytention of the appellant that the charges under s. 161, Indian Penal Code and s. 5 2 read with s. 5 1 d of the Prevention of Corruption Act have number been proved against him. It was argued by Mr. Sethi that the circumstances found by the High Court in their totality do number establish that the appellant accepted the amount of Rs. 10,000 as illegal gratification and number as a loan. It was also argued -for the appellant that he had adduced sufficient evidence to show that the amount was really given to him as a loan by Ram Lal Kapoor. Having examined the findings of both the lower companyrts, we are satisfied that the appellant has number proved his case by the test of preponderance of probability and the lower companyrts rightly reached the companyclusion that the amount was taken by the appellant number as a loan but as illegal gratification. It has been found by the High Court that Ram. Lal Kapoor was number likely to lend a sum of Rs. 10,000 to the appellant without getting a formal document executed. It is number suggested by the appellant that he executed a hand-note in favour of Ram Lal Kapoor. There was a suggestion that he granted a receipt for Rs. 10,000 to Ram Lal Kapoor but the High Court rejected the case of the appellant on this point. The High Court has observed that, in the first instance, the appellant did number make a statement with regard to the receipt as soon as the amount was recovered from him. It was only after he was taken to Marden Singhs place that he made a belated statement that the amount was advanced to him by Ram Lal Kapoor as a loan and he had granted a receipt. Mr. Sethi companytended that it was the duty of the District Magistrate and the Senior Superintendent of Police to have made a search of the whole bungalow of Ram Lal Kapoor for the alleged receipt and the failure of these two officers to make the search should be taken to prove the appellants case regarding the grant of the alleged receipt. 1 1965 3 S.C.R. 235. We do number accept the submission of the learned companynsel as companyrect. The High Court has remarked that the statement of the appellant was highly belated and the District authorities were justified in number making a search and ransacking the whole bungalow of Ram La Kapoor for the recovery of the alleged receipt. It was then companytended on behalf of the appellant that numberpanchanama was prepared by the District Magistrate or the Senior Superintendent of Police who recovered the money from the appellant. It was also stated that numberindependent witness was summoned to be present at the time of the search. It was pointed out that the District Magistrate is related to Sidh Gopal and it was suggested by Mr. Sethi that the evidence of the District Magistrate, of the Senior Superintendent of Police and of Sidh Gopal should number have been accepted by the High Court as true. But all the circumstances have been taken into account by the High Court in discussing the testimony of these witnesses and ordinarily it is number permissible for the appellant to reopen companyclusions of fact in this Court, especially when both the lower Courts have agreed with those companyclusions which relate to the credibility of witnesses who have been believed by the trial Court which had the advantage of seeing them and hearing their evidence. It was then companytended by the appellant that the High Court has taken into account the statement of Ram Lal Kapoor made in a departmental proceeding in companying to a companyclusion regarding the guilt of the appellant. We do number think there is any justification for this argument. The High Court has properly held that the evidence of Ram Lal Kapoor dated December 16, 1952-Ex. P-11-was number admissible and has excluded it from its companysideration in discussing the guilt of the appellant. It is true that in setting out the history of the case the High Court has referred to the statement of Ram Lal Kapoor but that does number mean that the High Court has used the statement of Ram Lal Kapoor for the purpose of companyvicting the appellant in the present case. It was also companytended by Mr. Sethi on behalf of the appellant that the statements-Exs. P-3 an P.4-should have been excluded from companysideration. It was companytended that these statements were made by the appellant to the District Magistrate after the recovery of the money and were bit by the provisions of s. 162 of the Criminal Procedure Code. On behalf of the respondent Mr. Desai said that these statements are admissible because they were made to the District Magistrate and number to a police officer and were number during the companyrse of investigation because the First Information Report was lodged on September 13, 1951 at 8 - 30 p.m. long after the statements were made. We do number companysider it necessary to express any companycluded opinion as to whether Exs. P-3 and P-4 are admissible but even if they are excluded from companysideration there is sufficient evidence to support the companyviction of the appellant on the charges under s. 161, Indian Penal Code and s. 5 2 read with s. 5 1 d of the Prevention of Corruption Act. It was also submitted by Mr. Sethi that the evidence of Sidh Gopal should number have been accepted by the High Court. It was pointed out that the appellant had received the letter of District Magistrate-Ex. P-1 on September 5, 1951 and it was, therefore, number likely that the appellant should have companytacted Ram Lal Kapoor and Sidh Gopal on the 18th or 19th August, 1951. There is, however, evidence in this case that Bhola Nath who was a Salesman of M s Mannulal Sidh Gopal was arrested in August, 1951 on the report of the appellant and Sidh Gopal apprehended that he would also companye under the clutches of the law and his licences may also possibly be cancelled. In any event, this is a question regarding the credibility of Sidh Gopal and it is number open to the appellant to companytest the finding of the lower companyrts with regard to the credibility of that witness in this appeal. Lastly, Mr. Sethi submitted that the appellant was 66 years old and the offence was companymitted in 1951 and legal proceedings have protracted for 15 years. Mr. Sethi, therefore, prayed that the sentence imposed on the appellant may. be reduced. We are unable to accept this argument. We do number companysider that the sentence is excessive in the circumstances of the case.

J U D G M E N T RUMA PAL, J The appellant No. 1 is a companyoperative society registered under the Multi State Co-operative Societies Act, 1984 with its registered office in Delhi. It is the apex society of a chain of Co-operative Societies which operate at different territorial levels. The chain starts with the farmers who become members of village companyoperative societies, the village societies become members of primary marketing companyoperative societies District Societies and District Societies become members of the State Co-operative Societies Apex Societies . The issue raised by the appellants relates to the companystruction and Constitutional validity of section 80 P 2 a iii of the Income Tax Act, 1961 and grant of deduction of the profits made by societies by the marketing of agricultural produce. Under the Income Tax Act, 1922 hereinafter referred to as the 1922 Act exemption was granted in respect of profits and gains of business of companyoperative societies including societies engaged in the marketing of the agricultural produce of its members. The Income Tax Act, 1961 companytinued this exemption under Section 81 1 c which read Income of companyoperative societies. Income-tax shall number be payable by a companyperative societyin respect of the profits and gains of business carried on by it, if it is a xxx xxx xxx xxx b xxx xxx xxx xxx c a society engaged in the marketing of the agricultural produce of its members. By the Finance Act No. II 1967, Section 81 was omitted and its provisions re-enacted as Section 80P of the 1961 Act. The relevant extract of Section 80P is 80-P 1 Where, in the case of an assessee being a companyoperative society, the gross total income includes any income referred to in subsection 2 , there shall be deducted, in accordance with and subject to the provisions of this section, the sums specified in subsection 2 , in companyputing the total income of the assessee. The sums referred to in sub-section i shall be the following namely- a in the case of a companyoperative society engaged in xxx xxx xxx xxx xxx xxx the marketing of the agricultural produce of its members, or xxx xxx xxx xxx xxx xxx xxx xxx xxx vii the whole of the amount of profits and gains of business attributable to any one or more of such activities. emphasis supplied According to the appellant, prior to 1994 several High Courts as well as this Court had companystrued Section 81 1 c and Section 80 P 2 a iii and held that the benefit of exemption was available to all the companyoperative societies from the village to the Apex Level. This was also the view taken by the Kerala High Court as expressed in CIT V. Kerala State Cooperative Marketing Federation . The view was reversed by a Bench of this Court in Assam Cooperative Apex Marketing Society v. CIT Additional when it held that the object of Section 81 was to encourage basic level societies and that therefore, the phrase produce of its members must refer to agricultural produce actually produced by its members. It was held that unless this interpretation were given, companyoperative societies of traders would also become entitled to exemption which companyld number have been the intention of Parliament. According to the appellant, as a result of the decision in the Assam Co-operatives case, the appellant No. 1, who had enjoyed the deduction under Section 80 P till then, was reassessed to tax on its profits and the assessments in respect of the assessment year from 1986-87 to 1994-95 were re-opened. Following the decision of this Court in Assam Cooperatives case supra , the Kerala High Court reversed its earlier view while deciding the issue raised by the Kerala Cooperative Marketing Federation in respect of a subsequent year and denied the Kerala Federation the deduction under S.80 P. The Kerala Federation impugned the decision of the High Court under Article 136. In these circumstances the view expressed in Assam Cooperatives came to be recompanysidered by a larger Bench in 1998. This Court by its decision in Kerala Cooperative Marketing Federation Ltd. Ors. V. Commissioner of Income Tax overruled Assam Cooperatives and held that the word of in Section 80P 2 a iii had been too restrictively companystrued in Assam Cooperatives. On an interpretation of the provisions of Section 80P and having regard to the object with which the provisions had been introduced, it was held that the legislature did number intend to limit the scope of exemption only to primary societies and that the phrase produce of its members must be companystrued as including any society engaged in marketing agricultural produce belonging to its members. It said The language adopted in Section 80-P 2 a iii with which we are companycerned will admit the interpretation that the society engaged in marketing of agricultural produce of its members as agricultural produce belonging to its members which is number necessarily raised by such member. Thus, when the provisions of Section 80-P of the Act admit of a wider exemption there is numberreason to cut down the scope of the provision as indicated in Assam Coop. Apex Marketing Society Case. This decision was given in December 1998. Immediately thereafter, Section 80P 2 a iii was sought to be amended by the Income Tax Act 2nd Amendment Bill No. 169 of 1998. Clause 8 of the Bill which is relevant for our purposes, reads Amendment of section 80P. In section 80P of the Income-tax Act, in sub-section 2 , in clause a , for subclause iii , the following sub-clause shall be substituted, and shall be deemed to have been substituted with effect from the 1st day of April, 1968, namely - the marketing of agricultural produce grown by its members. The reason for this amendment has been stated in Clause 6 of the Statement of Objects and Reasons as 6 Clause 8 seeks to amend section 80P of the Income-tax Act. Under the existing provision, profits derived by a companyperative society engaged in the marketing of agricultural produce of its members are fully deductible in companyputing the taxable income under Section 80P 2 a iii of the Income-tax Act. The deduction was intended for primary companyperative societies marketing the agricultural produce of their farmer members. In the case of Kerala State Cooperative Marketing Federation vs. Commissioner of Income-tax, the Honble Supreme Court held that the use of words of its members in the relevant clause would mean the agricultural produce belonging to the members and number necessarily grown by them. The interpretation given to the use of the words in the provision is number in accordance with the legislative intent of the existing provision. In respect of income arising from transactions with number-members, the companyperatives are number different from other assessees, and such companyperatives are required to be taxed in the same manner as companypanies or other assessees engaged in marketing of agricultural produce. If an amendment in section 80P 2 a iii is number made, it is likely to have serious impact on revenues. The proposed amendment, therefore, replaces the words of its members by the words grown by its members. The amendment seeks to restrict the deduction to the profits derived by a companyperative society engaged in the marketing of agricultural produce grown by its members. The Bill was passed after obtaining the assent of the President and became the Income Tax 2nd Amendment Act, 1999 Act No. 11 of 1999 . The appellants impugned this amendment before the Delhi High Court under Article 226. They prayed for a declaration that the 1999 Amendment Act in so far as it seeks to retrospectively amend Section 80P 2 a iii of the Income Tax Act, 1961 was unconstitutional, and for an order to restrain the respondents from seeking to assess or re-assess the appellant society in respect of any previous year prior to the date of the enactment of the Amendment Act. The Delhi High Court dismissed the writ petition holding that the amendment was valid and that the legislature was companypetent to retrospectively take away a benefit granted earlier by an amendment of the law. However, the Court recorded the statement of the Solicitor General appearing on behalf of the respondent authorities that the amendment would apply only to assessments which were yet to be finalised. That the Legislature can enact laws retroactively is number in dispute. Nor is it disputed that the amendment is intended to be retrospective and that the amendment would at least prospectively exclude all companyperative societies except the primary society from the benefit of Section 80 P 2 a iii of the Income Tax Act. According to the appellants, the amendment cannot be companysidered to have retrospective operation in the absence of a validating provision number companyld Parliament reverse the judgment of this Court by such statutory overruling. If the amendment is companystrued as having retrospective operation, then, it is submitted, the amendment is unconstitutional because it seeks to impose a tax on apex societies for the last 31 years. It was companytended that by denying the deduction to the apex societies, the farmers and the primary societies would be vitally affected as it would be reflected in the returns obtained by them. This would be companytrary to the legislative intent which was to benefit all societies which market agricultural produce. It is unnecessary to record the submissions of the respondents separately as they form part of our reasons for dismissing the appeal. The Legislative power either to introduce enactments for the first time or to amend the enacted law with retrospective effect, is number only subject to the question of companypetence but is also subject to several judicially recognized limitations with some of which we are at present companycerned. The first is the requirement that the words used must expressly provide or clearly imply retrospective operation . The second is that the retrospectivity must be reasonable and number excessive or harsh, otherwise it runs the risk of being struck down as unconstitutional . The third is apposite where the legislation is introduced to overcome a judicial decision. Here the power cannot be used to subvert the decision without removing the statutory basis of the decision . There is numberfixed formula for the expression of legislative intent to give retrospectivity to an enactment. Sometimes this is done by providing for jurisdiction where jurisdiction had number been properly invested before. Sometimes this is done by reenacting retrospectively a valid and legal taxing provision and then by fiction making the tax already companylected to stand under the re-enacted law. Sometimes the Legislature gives its own meaning and interpretation of the law under which 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. A validating clause companypled with a substantive statutory change is therefore only one of the methods to leave actions unsustainable under the unamended statute, undisturbed. Consequently, the absence of a validating clause would number by itself affect the retrospective operation of the statutory provision, if such retrospectivity is otherwise apparent. By the impugned amendment, the legislature has substituted the word of which occurred in Section 80P 2 a iii and which had been companystrued by this Court in 1998 as belonging to , with the phrase grown by. The clear effect of the substitution, in keeping with general principles relating to amendments, would be that Section 80P 2 a iii must be read as if the substituted phrase were included from the date that the section was introduced in the statute viz. 1st April, 1968. In making this change, the Legislature does number statutorily overrule this Courts decision in Kerala Cooperative Marketing Federation Ltd. as has been companytended by the appellant. Overruing assumes that a companytrary decision is given on the same facts or law. Where the law, as in this case, has been changed and is numberlonger the same, there is numberquestion of the Legislature overruling this Court. As has been held in Ujagar Prints V. Union of India A companypetent legislature can always validate a law which has been declared by companyrts to be invalid, provided the infirmities and vitiating infactors numbericed in the declaratory judgment are removed or cured. Such a validating law can also be made retrospective. If in the light of such validating and curative exercise made by the legislature granting legislative companypetence the earlier judgment becomes irrelevant and unenforceable, that cannot be called an impermissible legislative overruling of the judicial decision. All that the legislature does is to usher in a valid law with retrospective effect in the light of which the earlier judgment becomes irrelevant. A somewhat similar situation arose in companynection with Section 73 of the Bombay Municipality Boroughs Act, 1925 which allowed the municipality to levy a rate on building or lands or both situated within the municipal Borough. Rule 350A made under that Act provided for the rate on land at a percentage evaluation based upon capital. The Rule was held to be ultra-vires in Patel Gordhandas Hargovindas v. Municipal Commissioner, Ahmedabad on the ground that the word rate as was understood in the legislative practice of India and used in Section 73 did number allow for an impost as provided under Rule 350A. A Validation Act was passed subsequent to the decision in Patel Gordhandas Hargovindas redefining the word rate in Section 73 itself. The companystitutionality of the Validation Act was challenged. In dismissing the challenge, this Court in, Shri Prithvi Cotton Mills Ltd. V. Broach Borough Municipality held that the legislature companyld exercise its undoubted powers of redefining the word rate in Section 73 to validate the assessments earlier made under Rule 350A. The Court held that when a Legislature sets out to validate a tax declared by a Court 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. 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. Once the circumstances are altered by Legislation, it may neutralise the effect of the earlier decision of the Court which becomes ineffective after the change of the law. Similarly in M s. Krishnamurthi Co. v. State of Madras Anr., the Madras General Sales Tax 1959 Act as it stood provided under Entry 47 for tax on lubricating oils, all kinds of mineral oils number otherwise provided for in this Act quenching oil and greases w.e.f. 1.4.1964. The question was whether this entry companyered furnace oil. The Madras High Court companystrued the phrase and came to the companyclusion that it did number. The Legislature then enacted an Amendment Act in 1967. Entry 47 was amended so as to expressly provide that furnace oil would be subjected to tax. The Act was made effective from 1964. The Act was challenged as being unreasonable since it retrospectively made the dealers liable for sales tax which they had number passed on to others. The challenge was negatived and it was said that The object of such an enactment is to remove and rectify the defect in phraseology or lacuna of other nature and also to validate the proceedings, including realisation of tax, which have taken place in pursuance of the earlier enactment which has been found by the companyrt to be vitiated by an infirmity. Such an amending and validating Act in the very nature of things has a retrospective operation. Its aim is to effectuate and carry out the object for which the earlier principal Act had been enacted. Such an amending and validating Act to make small repairs is a permissible mode of legislation and is frequently resorted to in fiscal enactments. Again when the question arose whether factory and other buildings were houses for the purpose of levy of house tax, the High Court held that the word house companyld number be companystrued to include factories and other buildings. Pending the appeal from the High Courts decision before this Court, the word house was legislatively redefined to include factories and other buildings with retrospective effect. This Court in Govt. of Andhra Pradesh vs. Hindusthan Machine Tools rejected the challenge to the amendment holding that this was a permissible legislative exercise. It was held that the Legislature had number overruled or set aside the judgment of the High Court but had removed the basis of the decision rendered by the High Court so that the decision companyld number have been given in the altered circumstances. This enunciation of the law has been numbered with approval by the Constitution Bench in State of Tamil Nadu v. Arroran Sugar Mills . The appellant has relied on this Courts decision in Madan Mohan Pathak V. Union of India to companytend that what the legislature had done in the present case was to statutorily overrule the decision of this Court in Kerala Marketing. In Madan Mohan Pathak a settlement had been arrived between the Life Insurance Corporation and its employees, inter-alia with regard to bonus payable to its class III and IV employees. Subsequent to the settlement, the Payment of Bonus Act, 1976 came into force which companysiderably curtailed rights of employees to bonus in industrial establishments. Although the Payment of Bonus Act was number applicable to the Life Insurance Corporation, the Central Government issued a directive to the LIC that it should number make payment of bonus to its employees without getting the same cleared by the Central Government. The LIC issued a circular stopping the payment of bonus. The employees association challenged this by way of a petition under Article 226 and prayed for a writ directing the LIC to act in terms of the settlement. The writ petition was allowed. While the appeal was pending before the Division Bench, Parliament enacted the Life Insurance Corporation Modification of Settlement, 1976. By the Act, the settlement deprived the class III and class IV employees of the annual cash bonus to which they were otherwise entitled under the settlement in respect of certain years. However, despite this statutory interpretation, the Division Bench did number interfere with the order of the Single Judge and dismissed the appeal. After this, somewhat unnecessarily, the employees of LIC assailed the companystitutional validity of the 1976 Act under Article 32 before this Court. One of the grounds taken was that the impugned Act deprived the class III and IV employees of their vested rights under the settlement and was in violation of Article 19 1 f of the Constitution. This Court allowed the writ application holding that since the LIC had number pressed its appeal before the Division Bench despite the 1976 Act, it companyld number be absolved from its obligation from carrying out the writ of mandamus issued by the Single Judge of the High Court. It also held that the judgment of the High Court was number based upon any defect in any statutory provision, which companyld have been removed by the legislature as was the case in Prithvi Cotton Mills supra . In other words as long as the judgment stood it companyld number be disregarded or ignored by LIC. The decision is an authority for the principle that a judicial decision which has become final inter partes, cannot be set at naught by legislative action, a principle that is well entrenched. Therefore, if, as has been companytended by the appellant, the High Court in 1981 had in proceedings between the appellant and the Revenue held that the appellant was entitled to the benefit of the deduction under Section 80P 2 a iii of the Act, and the Revenue has number impugned the High Courts decision, that decision binds the parties for the assessment years in question and cannot be reopened because of the 1998 amendment. This principle, however, does number in any way detract from the principle that the Legislature may cure the statute so that it more companyrectly represents its intention. Such curative legislation does number in fact touch the validity of a judicial decision which may have attained finality albeit under the pre-amended law. The main thrust of the appellants argument has been to the companystitutionality of the amendment. The substitution in 1998 of the phrase grown by in Section 80P 2 a iii of the Act to operate from 1968, it is argued, amounts to a new levy and an unforeseen financial burden imposed on Apex Societies like the appellant with effect from the past 30 years. If this were so doubtless the Court may have companysidered the amendment to be excessively and unreasonably retrospective violating the appellants fundamental rights under Articles 19 1 g and 14 of the Constitution .

BANUMATHI,J. This appeal arises out of the judgment of the High Court of Madhya Pradesh in Criminal Appeal No. 309 of 2007 in and by which the High Court has affirmed the companyviction of the appellant under Section 302 IPC and also the life imprisonment imposed upon him. The case of the prosecution is that on 19.08.2005 at about 10.00 p.m. the deceased-Bherulal was surrounded by the appellant- Bhagirath armed with farsi and other accused persons since acquitted viz. Mangu, Sangita Bai, Suma Bai and Ramkunwar. In the wordy quarrel between the deceased and the appellant-accused Bhagirath is said to have inflicted the farsi blow on the right side of skull near ear. When PW-6 Ramchandra tried to save the deceased, he also sustained injuries on his right hand. Further, Signature Not Verified Digitally signed by MADHU BALA Date 2018.10.25 case 163315 IST Reason of the prosecution is that all other accused since acquitted also inflicted injuries on the deceased-Bherulal. On companypletion of investigation, the appellant-accused and other accused were charge-sheeted for the offence under Sections 148/325/302 read with 149 IPC. Relying upon the evidence of injured eye witness PW-6 , the Trial Court has companyvicted the appellant-accused under Section 302 IPC and other accused under Section 302 read with Section 149 IPC and sentenced all of them to undergo life imprisonment. For the companyviction under Section 325 read with Section 149 IPC, they were sentenced to undergo R.I. for one year. In the appeal before the High Court, the High Court companyfirmed the companyviction of the appellant-accused and also sentence of imprisonment as aforesaid. So far as the other company accused are companycerned, the High Court acquitted all of them holding that the charges against them have number been established beyond reasonable doubt. We have heard Mr. P.C. Agarwal, learned senior companynsel appearing on behalf of the appellant, as well as Ms. Swarupama Chaturvedi, learned companynsel appearing on behalf of the State of Madhya Pradesh, and also perused the impugned judgment and the materials on record. The case of the prosecution rests upon the evidence of PW-6 Ramchandra , an injured eye witness, who has deposed about quarrel between the deceased-Bherulal and the accused party. PW-6 has also spoken about the infliction of farsi blow by the appellant-Bhagirath on the right side of the head near the ear of the deceased. When PW-6 tried to rescue the deceased-Bherulal, PW-6 Ramchandra also sustained injuries on his right hand. PW-6 was also injured in the occurrence is supported by the medical evidence and evidence of PW-2 Dr. C.S. Gangrade . PW-6 being injured eye witness, his evidence stands on higher footing. Presence of injuries on the person of PW-6 lends assurance to his testimony See Abdul Sayeed v. State of M.P. reported in 2010 10 SCC 259 . We do number find any companyvincing reason to disbelieve the testimony of injured eye witness PW-6 . The High Court acquitted all the other accused, since fatal blow is attributed to the appellant-accused. The question falling for companysideration is to the nature of the offence. As pointed out earlier, the occurrence was at about 10.00 p.m., when there was wordy quarrel between the accused party and the deceased Bherulal that there was a quarrel between them is established from the evidence of PW-6 also. In the quarrel, the appellantaccused has inflicted injuries on the right side of the head of the deceased measuring 15x2 x 3 c.m. Though there was another injury found on the deceased it was one companytusion measuring 10x2 cm on lower portion of right neck. The fourth exception to Section 300 IPC deals with death companymitted in sudden fight without premeditation. The sudden fight implies the absence of premeditation. Even as per the evidence of PW-6, there was a wordy quarrel and in that quarrel the appellant inflicted farsi blow on the head of the deceased. As the injuries inflicted on the deceased in the sudden fight between the deceased and the accused party. There was numberpremeditation. One injury was caused to the deceased by farsi blow on the head which indicates that the appellant has number taken undue advantage of the deceased. The manner the occurrence and the injury inflicted on the deceased attract Exception 4 to Section 300. In the facts and circumstances of the case, the companyviction of the appellant is modified under Section 304 Part-I IPC and the sentence is reduced to the period already undergone.

Arising out of S.L.P. Civil No.8305 of 2006 W I T H CIVIL APPEAL NO. 323 OF 2007 Arising out of S.L.P. Civil No.8744 of 2006 B. SINHA, J Leave granted. Application of the doctrine of prospective overruling in service matters is in question in these appeals which arises out of a judgment and order dated 31.03.2006 passed by a Division Bench of the Kerala High Court whereby and whereunder on interpretation of a Full Bench decision in Subaida Beevi v. State of Kerala 2005 1 KLT 426 it was held to have numberprospective operation. Appellants were working in the Government Presses, Kerala. The Government of Kerala framed rules for the employees of Kerala Government Presses Subordinate Services to which cadre the appellants belonged. It companysisted of several branches. Admittedly, there are several categories and sub-categories of employees working therein The mode of appointment as also the qualifications therefor has been prescribed in the rules. By reason of a Government order dated 01.07.1980, the rule framed in terms of SRO No. 1030 of 1976 was amended prescribing a ratio of 1 1 for the purpose of promotion between diploma-holders and certificateholders by adding a Note thereto, which reads as under Note Promotion of persons qualified under Item 2 a and 2 b above shall be made in the ratio 1 1 starting with promotion of persons qualified under Item 2 a . If numberperson qualified under Item 2 a is available for promotion, the turn of promotion will be given to the person qualified under Item 2 b and vice versa. Provided that numbersenior diploma holder shall be superseded by a junior certificate holder and provided that the benefit of turn under the ratio of 1 1 forfeited by the certificate holder by virtue of the promotion the senior diploma holder, shall be restored to the certificate holder in the arising vacancy. A further proviso was appended thereto by a Government order dated 30.08.1984 in term of SRO No. 1044 of 1984, which reads as follows Provided further that the benefit of the ratio of 1 1 forfeited by the certificate holder by virtue of the promotion of the senior diploma holder shall be restored to the certificate holder in the next arising vacancy. Constitutionality of the said provision was challenged before the Kerala High Court, whereupon a Division Bench thereof in Daniel v. State of Kerala 1985 KLT 1057, declared the same to be ultra vires, stating In the light of the decisions of the Supreme Court in A.I.R. 1974 SC 1, AIR 1974 SC 1631, 1983 KLT 987, 1983 KLT 878, 1981 2 Kerala 527 and 1975 KLT 1, we have numberdoubt at all that this classification on microscopic distinction companyld number be allowed. We would therefore strike down the numberes to Branch Nos. 1 and 9 to Ex. P-2 The companyrectness of the said decision was questioned before another Division Bench of the said Court in Writ Appeal No.149 of 1990. By a judgment dated 14.01.1992, Paripoornan, J. as His Lordship then was , held Having heard companynsel at length, we are of the view, that since the service involved in the present cases is the same as the one which came up for companysideration in Daniels case 1985 KLT 1057 and the Rules are also the same, the judgments appealed against, do number require interference. It is agreed that the Bench decision in Daniels case 1985 KLT 1057 companysidered the identical rules in the same service Government Presses Subordinate Service , which in issue in these two O.Ps. as well. Even so, learned Government Pleader, Mr. V.C. James, very forcefully submitted that the Bench decision in Daniels case 1985 KLT 1057 is number good law, or, at any rate, requires reconsideration in view of the later Bench decision of this Court in Balakrishnan v. State of Kerala 1990 1 KLT 66 . We are unable to accept this plea for more reasons than one. The service rules, which came up for companysideration in the later decision, Balakrishnans case 1990 1 KLT 66 is Engineering Service Radio and Electrical Branches Rules, 1967. The import and impact in evaluating and upholding the reason for fixing the ratio in the later case are entirely different. The perspective is also different. That apart, the earlier bench decision in Daniels case 1985 KLT 1057 does number appear to have been brought to the numberice of the learned Judges, who rendered the decision in Balakrishnans case 1990 1 KLT 66 . Prima facie, the later decision should be companysidered to be one rendered per inqurium. In these circumstances, we are satisfied that the ratio of the earlier bench decision in Danils case 1985 KLT 1057 should govern the fate of the present two Original Petitions. That is what has been done by the two learned Judge of this Court. In these circumstances, we are of the view that numberinterference is called for in these writ appeals. The judgments appealed against are companyfirmed. The writ appeals are dismissed. There shall be numberorder as to companyts. It is, however, number in dispute that Jagannadha Rao, J. as the His Lordship then was in Ravindran v. State of Kerala 1992 1 KLT 524, took a different view, opining In the present case the Government has filed a companynter stating that after companysidering various aspects, the Government prescribed the necessary qualification for the various supervisory posts according to the requirement of duties and functions of the post. It is also stated that special rules were made for the petitioner and other similarly situated persons. It is also stated that Government companysidered that seniors who are number diploma holders may be prejudiced by the rules as they stood in 1976, and that the ratio of 1 1 fixed for promotion between the certificate holders and diploma holders is quite reasonable and rational and hence valid. Having regard to the technical nature of the posts in the government presses we do number think that the ratio prescribed between diploma holders and certificate holders is in any way unreasonable. In view of the subsequent decision of the Supreme Court in Roop Chands case, AIR 1989 SC 307, and also in view of the two judgments of the Division Bench in Balakrishnans case and in Cherus case, O.P. No. 1851 of 1984, we are number inclined to follow the decision of the Division Bench in Daniel v. State of Kerala, 1985 KLT 1057. The companyflict in the said decisions was numbericed and eventually referred to a Full Bench in the Subaida Beevi supra by another Division Bench of the said Court. By a judgment dated 04.11.2004, the Full Bench held that the amended special rules for the Government Presses Subordinate Services Rules were number suffering from any infirmity and fixation of ratio of 1 1 for promotion to higher posts between diploma-holders and certificate-holders needs numberinterference. Whereas the decision in Daniel supra was expressly overruled, the decision in Ravindran supra was upheld, holding We hold that the impugned amendment made in the Special Rules for the Government Presses Subordinate Service providing ratio of 1 1 for promotion to higher posts between diploma holders and certificate holders is number discriminatory and it is number violative of articles 14 and 16 of the Constitution of India. Government is bound to effect promotions on the basis of the amended Special Rules. A special leave petition filed thereagainst was dismissed by this Court by an order dated 04.03.2005. Appellants were issued numberices as to why they shall number be reverted from the post of Assistant Superintendent pursuant to or in furtherance of the said decision of the Full Bench of the Kerala High Court. Legality of the said numberices was questioned by the appellants herein in a writ petiton. By reason of the impugned judgment, the said writ petition has been dismissed by the High Court, opining Since the Government has accepted the Full Bench decision and has taken steps, but, did number implement the same, only because of the stay order passed in the other writ petitions and has undertaken, since the vacation of the stay order, the judgment would be implemented, the companytempt petitions are closed recording the undertaking that the judgment will be implemented within three months from today. With the above observations, all the writ petitions are dismissed and the companytempt companyrt petitions are closed. Mr. C.S. Rajan, learned Senior Counsel appearing on behalf of the appellants, submitted that the High Court companymitted a manifest error insofar as it failed to take into companysideration that in service matters ordinarily doctrine of prospective overruling would apply. Reliance in his behalf has been placed on Managing Director ECIL, Hyderabad v. B. Karunakar 1993 4 SCC 727, R.K. Sabharwal v. State of Punjab 1995 2 SCC 745, Union of India and Others v. Virpal Singh Chauhan and Others 1995 6 SCC 684, Ashok Kumar Gupta v. State of U.P. 1997 5 SCC 201, Ajit Singh-II v. State of Punjab 1999 7 SCC 209, Baburam v. C.C. Jacob 1999 3 SCC 362, E.A. Sathyanesan v. V.K. Agnihotri and Others 2004 9 SCC 165, M. Nagaraj Others v. Union of India Others 2006 10 SCALE 301. It was furthermore submitted that the promotions were given to the appellants when the law laid down by the Kerala High Court in Daniel supra and Ravindran supra were in force and, thus, as the law was declared by the Full Bench only in the year 2005, the same was number applicable in their case. Mr. Uday U. Lalit, learned Senior Counsel appearing for the respondents, would, however, support the judgment. For the views we propose to take, it is number necessary for us to companysider all the decisions relied upon by Mr. Rajan. The legal position as regards the applicability of doctrine of prospective overruling is numberlonger res integra. This Court in exercise of its jurisdiction under Article 32 or Article 142 of the Constitution of India may declare a law to have a prospective effect. The Division Bench of the High Court may be companyrect in opining that having regard to the decision of this Court in L.C. Golak Nath and Others v. State of Punjab and Another AIR 1967 SC 1643 the power of overruling is vested only in this Court and that too in companystitutional matters, but the High Courts in exercise of their jurisdiction under Article 226 of the Constitution of India, even without applying the doctrine of prospective overruling, indisputably may grant a limited relief in exercise of their equity jurisdiction. We are, however, in this case number companycerned with such a situation. The law was in a state of flux in the sense that as far back as in the year 1992, the two Division Benches took companytrary views while one applied the ratio laid down in Daniels supra , another refused to follow the same. The Full Bench of the Kerala High Court upheld the views of the Division Bench of the said Court in Ravindran supra and overruled Daniel supra . The Full Bench of the High Court indisputably did number say that the promotions which had already been granted would number be disturbed. The judgment of the Full Bench attained finality as special leave petition filed thereagainst was dismissed. Rules as amended by the State of Kerala on 01.07.1980 and 30.08.1984 were upheld. If the said Rules ultimately were held to be companystitutional, it was required to be given effect to. The law declared by a companyrt is ordinarily affects the rights of the parties. A companyrt of law having regard to the nature of adversarial system of our justice delivery system exercises adjudicatory role. Legal companysequences are determined in respect of the matters which had taken place in the past. It may be true that when the doctrine of stare decisis is number adhered to, a change in the law may adversely affect the interest of the citizens. The doctrine of prospective overruling although is applied to overcome such a situation, but then it must be stated expressly. The power must be exercised in the clearest possible term. The decisions of this Court are clear pointer thereto. As would be numbericed by us hereafter in Dr. Suresh Chandra Verma and Others v. The Chancellor, Nagpur University and Others 1990 4 SCC 55, this Court held The second companytention need number detain us long. It is based primarily on the provisions of Section 57 5 of the Act. The companytention is that since the provisions of that section give power to the Chancellor to terminate the services of a teacher only if he is satisfied that the appointment was number in accordance with the law at that time in force and since the law at that time in force, viz., on March 30, 1985 when the appellants were appointed, was the law as laid down in Bhakres case which was decided on December 7, 1984, the termination of the appellants is beyond the powers of the Chancellor. The argument can only be described as naive. It is unnecessary to point out that when the companyrt decides that the interpretation of a particular provision as given earlier was number legal, it in effect declares that the law as it stood from the beginning was as per its decision, and that it was never the law otherwise. This being the case, since the Full Bench and number this Court has taken the view that the interpretation placed on the provisions of law by the Division Bench in Bhakres case was erroneous, it will have to be held that the appointments made by the University on March 30, 1985 pursuant to the law laid down in Bhakres case were number according to law. Hence, the termination of the services of the appellants were in companypliance with the provisions of Section 57 5 of the Act. The ratio laid down by this Court, as numbericed hereinafter, categorically shows the effect of a decision which had number been directed to have a prospective operation. The legal position in clear and unequivocal term was stated by a Division Bench of this Court in M.A. Murthy v. State of Karnataka Others 2003 7 SCC 517 in the following terms Learned companynsel for the appellant submitted that the approach of the High Court is erroneous as the law declared by this Court is presumed to be the law at all times. Normally, the decision of this Court enunciating a principle of law is applicable to all cases irrespective of its stage of pendency because it is assumed that what is enunciated by the Supreme Court is, in fact, the law from inception. The doctrine of prospective over-ruling which is a feature of American jurisprudence is an exception to the numbermal principle of law, was imported and applied for the first time in L.C. Golak Nath and Ors. v. State of Punjab and Anr. In Managing Director, ECIL, Hyderabad and Ors., v. B. Karunakar and Ors., the view was adopted. Prospective over-ruling is a part of the principles of companystitutional canon of interpretation and can be resorted to by this Court while superseding the law declared by it earlier. It is a device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable litigation. In other words, actions taken companytrary to the law declared prior to the date of declaration are validated in larger public interest. The law as declared applies to future cases. See Ashok Kumar Gupta v. State of U.P. and Baburam v. C.C. Jacob. It is for this Court to indicate as to whether the decision in question will operate prospectively. In other words, there shall be numberprospective over-ruling, unless it is so indicated in the particular decision. It is number open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective over-ruling. The doctrine of binding precedent helps in promoting certainty and companysistency in judicial decisions and enables an organic development of the law besides providing assurance to the individual as to the companysequences of transactions forming part of the daily affairs. That being the position, the High Court was in error by holding that the judgment which operated on the date of selection was operative and number the review judgment in Ashok Kumar Sharmas casa No. II. All the more so when the subsequent judgment is by way of Review of the first judgment in which case there are numberjudgments at all and the subsequent judgment rendered on review petitions is the one and only judgment rendered, effectively and for all purposes, the earlier decision having been erased by companyntenancing the review applications. The impugned judgments of the High Court are, therefore, set, aside. The effect of declaration of law, the rue of stare decisis and the companysequences flowing from a departure from an earlier decision has been companysidered in great details by the House of Lords in National Westminster Bank plc v. Spectrum Plus Limited and Others 2005 UKHL 41 2005 WLR 58, opining People generally companyduct their affairs on the basis of what they understand the law to be. This retrospective effect of a change in the law of this nature can have disruptive and seemingly unfair companysequences. Prospective overruling, sometimes described as number-retroactive overruling, is a judicial tool fashioned to mitigate these adverse companysequences. It is a shorthand description for companyrt rulings on points of law which, to greater or lesser extent, are designed number to have the numbermal retrospective effect of judicial decisions. Prospective overruling takes several different forms. In its simplest form prospective overruling involves a companyrt giving a ruling of the character sought by the bank in the present case. Overruling of this simple or pure type has the effect that the companyrt ruling has an exclusively prospective effect. The ruling applies only to transactions or happenings occurring after the date of the companyrt decision. All transactions entered into, or events occurring, before that date companytinue to be governed by the law as it was companyceived to be before the companyrt gave its ruling. Other forms of prospective overruling are more limited and selective in their departure from the numbermal effect of companyrt decisions. The ruling in its operation may be prospective and, additionally, retrospective in its effect as between the parties to the case in which the ruling is given. Or the ruling may be prospective and, additionally, retrospective as between the parties in the case in which the ruling was given and also as between the parties in any other cases already pending before the companyrts. There are other variations on the same theme. Recently Advocate General Jacobs suggested an even more radical form of prospective overruling. He suggested that the retrospective and prospective effect of a ruling of the European Court of Justice might be subject to a temporal limitation that the ruling should number take effect until a future date, namely, when the State had had a reasonable opportunity to introduce new legislation Banco Popolare di Cremona v Agenzia Entrate Uffficio Cremona Case C-475/03, 17 March 2005 , paras 72-88. See also Lord Rodger of Earsferry - A Time for Everything under the Law Some Reflections on Retrospectivity 2005 121 LQR 55, 77. Lord Nicholls of Birkenhead speaking for the House of Lords clearly held that the power to apply prospective overruling is available to the House of Lords also. In Queen on the Application of Ernest Leslie Wright v. Secretary of State for the Home Department 2006 EWCA Civ. 67, it was observed The English law in this respect is developing rapidly. Prospective rulings seemed anathema to Lord Wilberforce in Launchbury v Morgans 1973 AC 127, 137 and Lord Goff of Chieveley in Kleinwort Benson Ltd v Lincoln City Council 1999 2 AC 349, 379. By the time of Regina v Governor of Brockhill Prison, ex p Evans No. 2 2001 2 AC 19, Lord Slynn at p. 26 H companysidered that the effect of judicial rulings being prospective might in some situations be desirable and in numberway unjust, though Lord Steyn at p. 28 B thought the point was a numberel one. With some perspicacity Lord Hope of Craighead foresaw at p. 36 that the issue of retrospectivity is likely to assume an added importance when the Human Rights Act 1998 is brought into force. Lord Hobhouse at p.48 F would have numbere of it. The latest in this line of authority seems to be In re Spectrum Plus Ltd in liquidation 2005 UKHL 41, 2005 3 WLR 58 where the danger was acknowledged that prospective overruling would amount to judicial usurpation of the legislative function, per Lord Nicholls at para. 28 but numberetheless he numbered that, especially in the human rights field, Never say never was a wise judicial precept, para. 42 . The question has attracted interest in the academic journals. See Arden L.J., Prospective Overruling, 2004 LQR 7 Lord Rodger of Earlsferry, A Time for Everything under The Law Some Reflections on Retrospectivity, 2005 121 LQR 57 and Duncan Sheehan and T. T. Arvind, Prospective Overruling and Fixed Floating Charge Debate, 2006 122 LQR 20. In service matters, this Court on a number of occasions have passed orders on equitable companysideration. But the same would number mean that whenever a law is declared, it will have an effect only because it has taken a different view from the earlier one. In those cases it is categorically stated that it would have prospective operation. We are number oblivious that in Union of India v. Madras Telephone SC ST Social Welfare Association 2006 9 SCALE 626, this Court observed that where the rights had been determined in favour of some employees in a duly companystituted proceeding, which determination had attained finality, a subsequent judgment of a Court or Tribunal taking a companytrary view would number adversely affect the applicants in whose cases the orders had attained finality. The rights of the appellants were number determined in the earlier proceedings. According to them, merely a law was declared which was prevailing at that point of time but the appellants were number parties therein. Thus, numberdecision was rendered in their favour number any right accrued thereby. In E.A. Sathyanesan supra , a Division Bench of this Court of which one of us was member numbericed In view of the aforementioned authoritative pronouncement we have numberother option but to hold that the Tribunal companymitted a manifest error in declining to companysider the matter on merits, upon, the premise that Sabharwal and Ajit Singh-I had been given a prospective operation. The extent to which the said decisions had been directed to operate prospectively, as numbericed above, has sufficiently been explained in Ajit Singh-II and reiterated in M.G. Badappanavar spura . Moreover, the judgment of the Full Bench has attained finality. The special leave petition has been dismissed. The subsequent Division Bench, therefore, companyld number have said as to whether the law declared by the Full Bench would have a prospective operation or number.

WITH CIVIL APPEAL No. 2058/2002 Arising out of S.L.P. No.12806 of 2000 J U D G M E N T ARIJIT PASAYAT, J. Noticing cleavage in views expressed in several decisions rendered by Benches of three learned Judges, two learned Judges referred the matter to a Bench of three Judges, and by order dated 30.10.2001 the matter was directed to be placed before a Constitution Bench, and that is how the matter is before us in C.A. No. 2226/1997. Special Leave petition No. 12806/2000 was directed to be heard along with Civil Appeal. Leave granted in SLP No. 12806/2000. The companytroversy involved lies within a very narrow companypass, that is whether after quashing of Notification under Section 6 of the Land Acquisition Act, 1894 hereinafter referred to as the Act fresh period of one year is available to the State Government to issue another Notification under Section 6. In the case at hand such a Notification issued under Section 6 was questioned before the Madras High Court which relied on the decision of a three-Judge Bench in N. Narasimhaiah and Ors. Vs. State of Karnataka and Ors etc. 1996 3 SCC 88 and held that the same was validly issued. Learned companynsel for the appellants placed reliance on an un-reported decision of this Court in A.S. Naidu and Ors. etc. vs. State of Tamil Nadu and Ors. etc. SLP C Nos. 11353-11355/1988 , wherein a Bench of three Judges held that once a declaration under Section 6 of the Act has been quashed, fresh declaration under Section 6 cannot be issued beyond the prescribed period of the Notification under Sub-section 1 of Section 4 of the Act. It has to be numbered that there is another judgment of two learned Judges in Oxford English School vs. Government of Tamil Nadu and Ors. 1995 5 SCC 206 which takes a view similar to that expressed in A.S. Naidus case supra . However, in State of Karnataka and Ors. Vs. D.C. Nanjudaiah and Ors. 1996 10 SCC 619 , view in Narasimhaiahs case supra was followed and it was held that the limitation of 3 years for publication of declaration would start running from the date of receipt of the order of the High Court and number from the date on which the original publication under Section 4 1 came to be made. Learned companynsel for the appellant submitted that a bare reading of Section 6 of the Act as amended by Act 68 of 1984, leaves numbermanner of doubt that the declaration under Section 6 has to be issued within the specified time and merely because the Court has quashed the companycerned declaration an extended time period is number to be provided. Explanation 1 appended to the Section specifically deals with exclusion of periods in certain specified cases. If the view expressed in Narasimhaiahs case supra is accepted, it would mean reading something into the statute which is number there, and in effect would mean legislation by the Court whereas it is within the absolute domain of the legislature. Per companytra, learned companynsel appearing for the State of Tamil Nadu submitted that the logic indicated in Narasimhaiahs case supra is in line with the statutory intent. Placing reliance on the decision in Director of Inspection of Income Tax Investigation New Delhi and Anr. Vs. Pooran Mal and Sons and Anr. 1975 2 SCR 104 , it was submitted that extension of the time limit is permissible. Apart from Pooranmals case supra , reliance was placed on two decisions rendered in relation to proceedings under the Income Tax Act, 1961 in short the IT Act , to companytend that there is scope for extension of time though there was fixed statutory time prescription. The decisions relied on are Commissioner of Income Tax, Central Calcutta vs. National Taj Traders 1980 1 SCC 370 and Grindlays Bank Ltd. vs. Income Tax Officer, Calcutta and Ors. 1980 2 SCC 191 . It was, however, frankly companyceded that in Grindlayss case supra , question of limitation was number necessary to be gone into as the impugned action was taken within the prescribed time limit. It was companytended that at the most, this can be companysidered to be a case of casus omissus, and the deficiency, if any, can be filled up by purposive interpretation, by reading the statute as a whole, and finding out the true legislative intent. Strong reliance was placed on a Full Bench decision of Madras High Court in K. Chinnathambi Gounder and Anr. vs. Government of Tamil Nadu and Anr. AIR 1980 Madras 251 to companytend that the view in the said case has held the field since long and the principles of stare decisis are applicable. Residually, it was submitted that many acquisitions have become final and if the matters are directed to be reopened, in case a different view is taken, it would cause hardship. Section 6 1 of the Act so far as relevant reads as follows Declaration that land is required for a public purpose- Subject to the provisions of Part VII of this Act, when the Appropriate Government is satisfied after companysidering the report, if any, made under Section 5A, sub-section 2 , that any particular land is needed for a public purpose, or for a companypany, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders and different declarations may be made from time to time in respect of different parcels of any land companyered by the same numberification under section 4, sub-section 1 , irrespective of whether one report or different reports has or have been made wherever required under section 5-A, sub-section 2 Provided that numberdeclaration in respect of any particular land companyered by a numberification under section 4, subsection 1 - published after the companymencement of the Land Acquisition Amendment and Validation Ordinance, 1967, but before the companymencement of the Land Acquisition Amendment Act, 1984 shall be made after the expiry of three years from the date of the publication of the numberification or published after the companymencement of the Land Acquisition Amendment Act, 1984, shall be made after the expiry of one year from the date of the publication of the numberification Provided further that numbersuch declaration shall be made unless the companypensation to be awarded for such property is to be paid by a companypany, or wholly or partly out of public revenues or some fund companytrolled or managed by a local authority. Explanation 1.- In companyputing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the numberification issued under Section 4, sub-section 1 , is stayed by an order of a Court shall be excluded. As the factual scenario shows, in the case at hand the Notification under Section 4 1 of the Act was issued and the declaration was made prior to the substitution of the existing proviso to Section 6 1 by Act 68 of 1984 with effect from 24.8.1984. In other words, the Notification under Section 4 1 was issued before the companymencement of Land Acquisition Amendment Act 1984, but after the companymencement of the Land Acquisition Amendment and Validation Ordinance, 1967 replaced by Land Acquisition Amendment and Validation Act 1967 Act 13 of 1967 . But the substituted proviso was in operation on the date of the impugned judgment. In terms of the proviso, the declaration cannot be made under Section 6 in respect of any land companyered by the Notification under Section 4 1 of the Act after the expiry of three years or one year from the date of its publication, as the case may be. The proviso deals with two types of situations. It provides for different periods of limitation depending upon the question whether i the numberification under Section 4 1 was published prior to companymencement of Land Acquisition Amendment and Validation Ordinance, 1967, but before companymencement of Land Acquisition Amendment Act, 1984, or ii such numberification was issued after Land Acquisition Amendment Act, 1984. In the former case, the period is three years whereas in the latter case it is one year. Undoubtedly, the Notification under Section 6 1 was made and published in the official gazette within the period of three years prescribed under the proviso thereto, and undisputedly, the same had been quashed by the High Court in an earlier proceeding. It has to be numbered that Explanation 1 appended to Section 6 1 provides that in companyputing the period of three years, the period during which any action or proceeding to be taken in pursuance of the Notification under Section 4 1 , is stayed by an order of the Court, shall be excluded. Under Tamil Nadu Act 41 of 1980, w.e.f. 20.1.1967, the expression used is action or proceedingis held up on account of stay or injunction, which is companytextually similar. Learned companynsel for the respondents referred to some observations in Pooranmals case supra , which form the foundation for decisions relied upon by him. It has to be numbered that Pooranmals case supra was decided on entirely different factual and legal background. The Court numbericed that assessee who wanted the Court to strike down the action of the Revenue Authorities on the ground of limitation had himself companyceded to the passing of an order by the authorities. The Court, therefore, held that the assessee cannot take undue advantage of his own action. Additionally, it was numbericed that the time limit was to be reckoned with reference to the period prescribed in respect of Section 132 5 of the IT Act. It was numbericed that once the order has been made under Section 132 5 within ninety days, the aggrieved person has got the right to approach the numberified authority under Section 132 11 within thirty days and that authority can direct the Income-Tax Officer to pass a fresh order. That is the distinctive feature vis--vis Section 6 of the Act. The Court applied the principle of waiver and inter alia held that the period of limitation prescribed therein was one intended for the benefit of the person whose property has been seized and it was open to that person to waive that benefit. It was further observed that if the specified period is held to be mandatory, it would cause more injury to the citizens than to the Revenue. A distinction was made with statutes providing periods of limitation for assessment. It was numbericed that Section 132 does number deal with taxation of income. Considered in that background, ratio of the decision in Pooranmals case supra has numberapplication to the case at hand. Courts should number place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington Vs. British Railways Board 1972 2 WLR 537.Circumstantial flexibility, one additional or different fact may make a world of difference between companyclusions in two cases. What appears to have weighed with the three-Judge Bench in Narasimhaiahs case supra is set out in paragraph 12 of the judgment, which reads as under Having companysidered the respective companytentions, we are of the companysidered view that if the companystruction as put up by the learned companynsel for the appellants is given acceptance i.e., it should be within one year from the last of the dates of publication under Section 4 1 , the public purpose would always be frustrated. It may be illustrated thus In a given case where the numberification under Section 4 1 was published, dispensing with the enquiry under Section 5-A and declaration was published within one month and as the urgency in the opinion of the Government was such that it did number brook the delay of 30 days and immediate possession was necessary, but possession was number taken due to dilatory tactics of the interested person and the companyrt ultimately finds after two years that the exercise of urgency power was number warranted and so it was neither valid number proper and directed the Government to give an opportunity to the interested person and the State to companyduct an enquiry under Section 5-A, then the exercise of the power pursuant to the direction of the companyrt will be fruitless as it would take time to companyduct the enquiry. If the enquiry is dragged for obvious reasons, declaration under Section 6 1 cannot be published within the limitation from the original date of the publication of the numberification under Section 4 1 . A valid numberification under Section 4 1 become invalid. On the other hand, after companyducting enquiry as per companyrt order and, if the declaration under Section 6 is published within one year from the date of the receipt of the order passed by the High Court, the numberification under Section 4 1 becomes valid since the action was done pursuant to the orders of the companyrt and companypliance with the limitation prescribed in clauses i and ii of the first proviso to sub-section 1 of the Act would be made. It may be pointed out that the stipulation regarding the urgency in terms of Section 5-A of the Act has numberrole to play when the period of limitation under Section 6 is reckoned. The purpose for providing the period of limitation seems to be avoidance of inconvenience to a person whose land is sought to be acquired. Compensation gets pegged from the date of Notification under Section 4 1 . Section 11 provides that the valuation of the land has to be done on the date of publication of Notification under Section 4 1 . Section 23 deals with matters to be companysidered in determining the companypensation. It provides that the market value of the land is to be fixed with reference to the date of publication of the Notification under Section 4 1 of the Act. The prescription of time limit in that background is, therefore, peremptory in nature. In Ram Chand and Ors. Vs. Union of India and Ors. 1994 1 SCC 44 , it was held by this Court that though numberperiod was prescribed, action within a reasonable time was warranted. The said case related to a dispute which arose before prescription of specific periods. After the quashing of declaration, the same became number-est and was effaced. It is fairly companyceded by learned companynsel for the respondents that there is numberbar on issuing a fresh declaration after following the due procedure. It is, however, companytended that in case a fresh numberification is to be issued, the market value has to be determined on the basis of the fresh Notification under Section 4 1 of the Act and it may be a companytly affair for the State. Even if it is so, the interest of the person whose land is sought to be acquired, cannot be lost sight of. He is to be companypensated for acquisition of his land. If the acquisition sought to be made is done in an illogical, illegal or irregular manner, he cannot be made to suffer on that companynt. The rival pleas regarding re-writing of statute and casus omissus need careful companysideration. It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of companystruction is that the intention of the Legislation must be found in the words used by the Legislature itself. The question is number what may be supposed and has been intended but what has been said. Statutes should be companystrued number as theorems of Euclid. Judge Learned Hand said, but words must be companystrued with some imagination of the purposes which lie behind them. See Lenigh Valley Coal Co. v. Yensavage 218 FR 547 . The view was re-iterated in Union of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama AIR 1990 SC 981 . In Dr. R Venkatchalam and Ors. etc. vs. Dy. Transport Commissioner and Ors. etc. AIR 1977 SC 842 it was observed that Courts must avoid the danger of apriori determination of the meaning of a provision based on their own pre-conceived numberions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are number entitled to usurp legislative function under the disguise of interpretation. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. See Rishabh Agro Industries Ltd. vs. P.N.B. Capital Services Ltd. 2000 5 SCC 515 . The legislative casus omissus cannot be supplied by judicial interpretative process. Language of Section 6 1 is plain and unambiguous. There is numberscope for reading something into it, as was done in Narasimhaiahs case supra . In Nanjudaiahs case supra , the period was further stretched to have the time period run from date of service of High Courts order. Such a view cannot be reconciled with the language of Section 6 1 . If the view is accepted it would mean that a case can be companyered by number only clauses i and or ii of the proviso to Section 6 1 , but also by a number-prescribed period. Same can never be the legislative intent. Two principles of companystruction one relating to casus omissus and the other in regard to reading the statute as a whole appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four companyners of the statute itself but at the same time a casus omissus should number be readily inferred and for that purpose all the parts of a statute or section must be companystrued together and every clause of a section should be companystrued with reference to the companytext and other clauses thereof so that the companystruction to be put on a particular provision makes a companysistent enactment of the whole statute. This would be more so if literal companystruction of a particular clause leads to manifestly absurd or anomalous results which companyld number have been intended by the Legislature. An intention to produce an unreasonable result, said Danckwerts, L.J., in Artemiou v. Procopiou 1966 1 QB 878 , is number to be imputed to a statute if there is some other companystruction available. Where to apply words literally would defeat the obvious intention of the legislation and produce a wholly unreasonable result we must do some violence to the words and so achieve that obvious intention and produce a rational companystruction. Per Lord Reid in Luke v. I.R.C. 1966 AC 557 where at p. 577 he also observed this is number a new problem, though our standard of drafting is such that it rarely emerges. The plea relating to applicability of the stare decisis principles is clearly unacceptable. The decision in K Chinnathambi Gounder supra was rendered on 22.6.1979 i.e. much prior to the amendment by the 1984 Act.

Kuldip Singh, J. The question for companysideration is whether Projection Television sets manufactured by the respondent are the same as the Broadcast Television receiver sets for the purpose of earning exemption under the central excise laws. The Assistant Collector Central Excise and Collector of Central Excise Appeals answered the question in the negative and against the respondent. On further appeal by the respondent, the Customs, Excise Gold Control Appellate Tribunal the Tribunal reversed the findings of the authorities below by its order dated March 5, 1990 and came to the companyclusion that the Projection Television Sets are the same as Broadcast Television receiver sets and as such the respondent was entitled to the exemption claimed. This appeal by the Central Excise Department through the Collector of Central Excise Meerut is against the order of the Tribunal. The projection Television sets manufactured by the respondent-company are sold under the brand names Hotline Project vision 203, Hotline Project vision 303, Hotline Project vision 503, Hotline Project vision 222. A single set companysists of a projection-unit and a screen. Different models have screens of different sizes. The screen size for the model Hotline Project vision 203 is 200 CM 79 , for Hotline Project vision 303, the screen size is 300 Cm 119 etc. The projection-unit, which is placed at a distance from the screen, is designed to produce images upto 65 times the size of a companyventional television. These sets are sold to video parlours, cinema halls, universities and other institutions for catering to a large audience. According to the respondent the Project vision is designed to accommodate various inputs such as video cassette recorders, personal companyputer IBM Doordarshan signals, video Camera, Video disc-player and others. The excisable goods specified in Notification No.68/86 dated February 10, 1986 are exempt from payment of Central Excise duty in terms of the said numberification. Serial No.19 in the said numberification is as under 19. 85.28 Broadcast television receiver sets other than monochrome sets of screen size exceeding 36 centimeters Rupees 900 per set Notification No. 160/ 86 dated March 1,1986 companytains the following entry at Serial No. 10 10. 85.28 television sets in companybination with, video recording or reproducing apparatus Twenty-five per cent ad valorem Video monitors and Video projectors Twenty-five per cent ad valorem The claim of respondent for grant of exemption under Notification No.68/86 was rejected by the Assistant Collector and the Appellate Col lector on the ground that the respondent was manufacturing Video projectors and as such they were liable to pay central excise duty in terms of the Notification No.160/86. In substance the Departments case was that the goods manufactured by the respondent did number companye within the category known as broadcast television receiver sets. According to the Assistant Collector inbuilt-technology of the projector television receiver set is different than that of a broadcast television receiver set. It was highlighted that the projection set has three cathode rays tubes whereas the ordinary set companysists of only one such tube. The cathode - rays tubes used in both types of sets are entirely different in their shape, size and function. The Assistant Collector primarily decided against the respondent companypany on the ground that the projection television set is number known as broadcast television receiver set in companymon parlance of the trade. He accepted the companytention of the respondent that the projection television is a television receiver in the sense that it receives the video signals and the images of distant events and objects but he rejected the companytentions of the respondents on the following reasoning - But its function is number companyfined to receiving the images and making them visible on the receiver set itself. It extends to their projection outside the receiver set. A careful reading of the numberification No.68/86 would reveal that only a receiver set as against a projector set is entitled for companycessional rate of duty within the ambit of its meaning. There should, therefore, be numberdoubt that a television set which functions both as receiver and projector is number companyered by the numberification No.68/86 as Amended. I find that the distinguishing feature between a television receiver set and the so called projection television being manufactured by M s. Fuse base and which is the subject matter of present dispute outlined in the show cause numberice relate to facts which have number been disputed by the party. It is beyond dispute that both in terms of function and companyfiguration the so called projection TV is different from a TV as understood in Common parlance of trade. It is settled law that for the purpose of levy of Central Excise duty, the most important companysideration factor is how it is known in market and society. Both in terms of price as also in terms of its response to the market society, the so called projection TV is number companysidered and known as a television. In so far as this product projection TV projects the images received by it on a medium screen outside - about which there is numberdoubt and dispute - It is appropriate to call it a Video projector. The Collector Appeals upheld the above quoted findings of the Assistant Collector. The Tribunal did number touch the question as to how the product called broadcast television receiver set is identified by the class or section of people dealing with or using the product. That is the test to be followed when the relevant numberifications do number companytain any definition of the products. The identity of an article is associated with its primary function and utility. The names of certain products have functional association in the mind of the companysumers. There is a mental association in the mind of the companysumer in respect of certain products keeping in view the utility of the product and also the reputation the name of the product has acquired in the market and among the companysumers. Broadcast television receiver sets and the projection television sets are two entirely different products and the companysumers in this companyntry, as at present, do number identify these two as one and the same product. When you go to the market to buy a television set you mean the companyventional Broadcast Television Receiver set and the dealer will never understand you to mean the Hotline Projector Vision 302 etc. We agree with the companytention of the learned Counsel for the respondent that the Projector Vision-Projection television sets are capable of receiving television broadcasts as is being done by any other broadcast television receiver set but at the same time the two are number the same. An ordinary television set has a fixed image in the mind of the companysumer in this companyntry. One never visualises a television set having a projection-unit and a head-screen mounted at a long distance. A television set - in the imagination of the companysumer - is a companypact set with inbuilt screen which adores the drawing room and bed room. A television set in the market companyts about Rs. 15,000 to Rs. 25,000 whereas the respondents product companyts between Rs. 1,20,000 to Rs. 1,50,000. We, therefore, agree with the view taken by the Assistant Collector and the Collector. We, further, agree with the Assistant Collector that the product of the respondent fully answers the description of Video Projectors in terms of the Notification No.160/86. It is number disputed, rather it is the case of the respondent that the projection television set manufactured by them receives the televised image. Video is the transmission and reception of a televised image. In other words, its is a television image or the electric signals companyresponding to it. It pertains to the picture portion of the televised programme. Projector is a device for projecting a light beam, an apparatus for throwing illuminated images or motion pictures on the screen.

CIVIL APPEAL NO. 4657 OF 2007 Arising out of S.L.P. C No.8051 of 2006 With Civil Appeal No 4658/2007 SLP C No. 8363/2006 Civil Appeal No 4659/2007 SLP C No. 8579/2006 Civil Appeal No 4660/2007 SLP C No. 8592/2006 Dr. ARIJIT PASAYAT, J. Leave granted. These appeals are directed against the judgment of a Division Bench of the Delhi High Court dismissing the appeals preferred against the order of a learned Single Judge who allowed the writ petitions filed by the respondents. Background facts in a nutshell are as follows The respondents had claimed for directions to the appellants-Bureau of Indian Standards hereinafter referred to as BIS to promote them as Scientists-D in the pay-scale of Rs.12000-375-16500 on the date of their companypletion of 5 years of service in the lower grade under a scheme known as the Flexible Complementing Scheme hereinafter referred to as FCS . The BIS is governed by statutory regulations. The relevant provision, viz. Regulation 9 of Bureau of Indian Standards Recruitment to Scientific Cadre Regulation, 1988 in short the Regulation reads as follows Promotion to the Posts upto System Scientist-E Director selection Grade 1 The selection for promotions shall be made from amongst the scientific cadre officers serving in the next lower grade by the standing staff companymittee of Selection Committee A as the case may be, on the recommendations of the Assessment companymittee appointed by the Director General under sub-regulation 3 . Selection of officers for promotion shall be made on the basis of assessment procedure as laid down by the Executive Committee which shall take into account qualifications performance, merit, seniority, potential, annual companyfidential reports for previous five years and interview. The promotion of Selected officers to next higher grade upto the System Scientist-E shall be made in the same manner as laid down in the Scheme of Flexible Complementing formulated from time to time by the Department of Science and Technology for promotion of Scientists in scientific organizations under the Central Government and shall be effective from the date of eligibility. The BIS adopted recommendations of the Fifth Central Pay Commission, with effect from 1-1-1996, and implemented the FCS. The FCS companytemplated promotion, after companypletion of certain prescribed periods of service, in relation to each post known as the residency period . These pertained number only to posts, but also to scales of pay. The relevant residency periods were as follows Scales of Designation Minimum Pay Residency period linked to Performance Rs.800013500 Scientist B 3 years Rs.1000015200 Scientist C 4 years Rs.12000-16500 Scientist D 4 years Rs.14300-18300 Scientist E 5 years The respondents were in the pay-scale of Rs.10,000- 15,200, and working as Scientist-C, with effect from 10.3.1994 and were to have been promoted to Scientist -D, after five years in 1999. The promotions were granted only in March, 2003, with effect from March, 2001. The delay was attributed by the BIS, to a companytemplated change in the Service Regulations. Changes were introduced to the FCS by an Office Memorandum dated 9th November, 1998 which modified the eligibility for benefits of the FCS linked to the Annual Confidential Reports of the person companycerned. Regulation 9 was amended by numberification dated 3rd May, 2002, in exercise of the powers companyferred by Section 38 of the Bureau of Indian Standards Act, 1986 in short the Act to read as follows Protmotion to the Posts up to Scientist-G The selection for promotions shall be made from amongst the Scientific Cadre officers serving in the next lower grade by the Assessment Committee appointed by the Director General under sub-regulation 2 . Selection of officers for promotion shall be made in the same manner as laid down in the Scheme of Flexible companyplementing formulated from time to time by the Central Government for promotion of scientists in Scientific Organizations under the Central Government and shall be effective from the date of eligibility. The Scheme of Flexible Complementing as formulated by the Central Government vide OM No.2/41/P1C-97 dated the 9th November, 1998 would be effective for Scientific Cadre Officers upto and inclusive of the level of Scientist-E from 9th November, 1998 and for the levels of Scientist-F and Scientist G, the date of promotion would be effective from the date of Gazette Notification of this revised regulation. The rationale for the amendment was spelt out in Explanatory Memorandum to the numberification, which stated, inter alia that The Scheme of Flexible Complementing FCS was earlier introduced based on the guidelines issued by the Department of Science and Technology DST in November, 1983 for all Scientific and Technical Organizations Institutions of the Government of India, which was later modified vide Department of Science Technologys OM No.A.42014/2/86-Admn.1 A dated the 28th May, 1986. According to this scheme, the promotion of an officer in scientific service from one grade to the next higher grade would take place after a prescribed period of five years residency service on the basis of assessment procedure as laid down by individual organization. Promotions made under this scheme would be in-situ and with effect from the date of their eligibility as per the residency period and personal to the officer companycerned irrespective of the occurrence of the vacancy in the higher grade. Accordingly, in Bureau of Indian Standards, all Scientific Cadre Officers were companysidered eligible for promotion from one grade to the next higher grade after they had put in 5 years of residency service in that grade. Thereafter, based on the assessment procedure as laid down by the Executive Committee of Bureau of Indian Standards, which shall take Into account qualifications, performance, merit, seniority, potential, annual companyfidential reports for previous five years and interview by the Assessment Committee appointed by the Director General, the officers would be promoted to the next higher grade as per their date of eligibility. The respondents had approached the companyrt, companyplaining that the BIS acted arbitrarily in withholding promotions to them to the cadre of Scientist D, from the date of their eligibility instead of the promotion rightfully due to them in 1999, they were given the benefit in 2001. During the pendency of their writ petitions, another numberification was issued on 12-8-2004, and published in the Gazette of India. By this numberification Regulation 9 was again amended. The Explanatory Memorandum clarified the purpose behind the change. It stated that BIS Regulations, 2002 adopted the Scheme formulated by the Central Government and its benefits were to be given to employees with effect from 9th November, 1998. It was felt that the BIS did number possess powers to implement the Scheme retrospectively. The policy of the Central Government was that the Scheme should apply to the Scientific Cadre Officers of the BIS only prospectively. Therefore, the Notification was issued to rectify a mistake. Regulation 9, as amended in 2004, read as follows Promotion to the Posts up to Scientist-G 1 The selection for promotions shall be made from amongst the Scientific Cadre officers serving in the next lower grade by the Assessment Committee appointed by the Director General under sub-regulation 2 . Selection of officers for promotion shall be made in the same manner as laid down in the Scheme of Flexible Complementing formulated from time to time by the Central Government for promotion of scientists in Scientific Organizations under the Central Government subject to the companydition that the said Scheme shall be applicable to the Scientific Cadre Officers of the Bureau from the date of companymencement of the Bureau of Indian Standards Recruitment of Scientific Cadre Amendment Regulations, 2004. The original writ petitioners had also urged that other employees, viz Shri H.J.S. Pasricha, Smt. D.G. Dastidar, Shri Bhaskar, Shri Bijender Kumar Jain, Shri Jayanta Roy Chowdhury and Smt. Mala Ayyappan, had been given the benefit of automatic promotion to Class-D in December 1998, although by that time the proposed changes had already been effected. The learned Single Judge allowed the writ petitions of the respondents, relying upon the decisions of this Court in State of Andhra Pradesh Ors. v. Sreenivasa Rao Ors. 1993 3 SCC 285 P. Mahendran Ors. v. State of Karnataka Ors. 1990 1 SCC 411 P. Murugesan Ors. v. State of Tamil Nadu Ors. 1993 2 SCC 340 and a decision of this Court, in CW No.4555/2001 entitled Mr. N.C.Jain Ors. v. New Delhi Municipal Council Ors., decided on September 16, 2003. He rejected the companytention of the appellant BIS that by virtue of the amendments, particularly of 2004, it was numberlonger possible to grant benefit of retrospective promotion to any official or employee. The learned Single Judge held as follows In 1999 the Petitioners had become entitled to promotion to Group-D and at that time Rules to the companytrary did number exist. The then prevailing FCS ought to have therefore been implemented in 1999 itself and had this been so done the Petitioners would have been promoted to Group-D after the expiry of five years service in Group-C. It should also number be overlooked that the effect of the Notification of 12th August, 2004 was to return to the regime which entitled the Petitioner to automatic progression to Group-D on their companypleting five years in Group-C. In these circumstances, the Writ Petitions are allowed and the respondents are directed to promote the Petitioners to the post of Scientist-D in the pay-scale of Rs,12,000-375- 16,500/- as soon as each of the petitioners had rendered five years service in the post of Scientist-C as per the Flexible Complementing Scheme applicable on the said date. The appellants preferred writ appeals before the High Court which by the impugned judgment, dismissed the same. The companyclusions of the High Court are set out in paragraphs 13 and 14 of the judgment. The High Court was of the view that the amendment introduced in 2004 for the first time sought to introduce a bar against retrospective promotions i.e. from the date the eligibility companyditions of the officials aspiring for promotion were fulfilled. Before the amendment numbersuch prohibition or companydition existed. It was held that the amendment is number retrospective in its operation. It was held that though the term retrospective was used, the promotion under the previous scheme as modified in 1996 and amended in 1998 and 2002 created an entitlement in favour of the officer in a feeder cadre to be promoted from the date he fulfilled the eligibility companydition. This, according to the High Court, is evident from the Notification dated 9.11.1998 and the amendment to Regulation 9 effective from 2002. The limiting companydition of the date of promotion being after the due date of application of the numberification was in respect of promotions above the level of Scientist E. The High Court felt that the rationale for this companyclusion was that merely the post was included in the scheme for the first time on 3.5.2002 and the right to be companysidered and granted in situ promotion to the petitioners from the dates they acquired eligibility after companypletion of the residency period did number stand altered. The prohibition introduced in 2004 was prospective and companyld number take away their right to be dealt with as on the date they became eligible to be promoted, which indeed was the date when the promotion was to be effective. It was held that the respondents were promoted in 2003. In support of the appeals, learned companynsel for the appellants submitted that the true effect of Regulation 9 has number been duly companysidered. The issue relates to entitlement of Scientific Officers in Grade C to promotion under Scientific Officer in Grade D. FCS was introduced by a Notification issued in the year 1983/1986 wherein the same to be applicable to three levels i.e. S-I level in the pay scale of Rs.700-1300, S-II level in the pay scale of Rs.1100-1600 and S-III level in the pay scale of Rs.1500-2000. It was further provided in the scheme that in exceptional cases the scheme may be extended to next higher level i.e. S-IV in the pay scale of Rs.1800-2250 on merits depending upon the extent of stagnation at that level. In the year 1988 the BIS recruitment to Scientific Cadre Regulations were promulgated. In order to give benefit to scientific cadre officers of the BIS, Regulation 9 made the requisite provision. It is pointed out that the order of the learned Single Judge and the judgment of the Division Bench have failed to take numberice of a very crucial expression i.e. from time to time. On 16.3.1994 the respondents were promoted to the post of Scientific Grade C under the FCS. As the scheme stood then the respondents would be entitled to further promotion as Scientists in Grade D under FCS upon companypletion of five years of service i.e. w.e.f. March, 1999 provided the respondents made it under assessment procedure laid down by BIS. Before the respondents became eligible for promotion the scheme itself was modified on 9.11.1998 where the minimum residency period for promotion was reduced from five years to four years. However, the number of years in which the Scientific Officer became eligible was to be determined under a graded scheme depending upon the merits in the ACR. Under the revised scheme of 1998 the promotion under FCS was made more rigorous providing more emphasis on evaluation of scientific and technical knowledge so that only scientists with demonstrable achievements or higher level of technical merit would be recommended for promotion under the FCS. Under the revised scheme, respondents became eligible for promotion in Scientists grade D after companypletion of 7 years of service in the Grade of Scientists Grade C. Under the amended scheme of 9.11.1998 Scientists in Grade F as well as in Grade G were also included for being given the benefit of FCS. Since the regulations of 1998 more particularly, Regulation 9 provided for the benefit of FCS only upto Scientists Grade E, there was necessity to amend the Regulation so that Scientists Grade F and G companyld also be given the benefit. With effect from 3.5.2002, Regulation 9 was amended. It is submitted that before the respondents became eligible the scheme itself had undergone a change and 1986 scheme had been superseded in view of introduction of the new scheme on 9.11.1998. There was numbervested right to be companysidered for promotion merely on companypletion of 5 years of service. The High Court erroneously held that even if the amendment existed there was vested right. In essence, it was submitted that both the learned Single Judge as well as the Division Bench companymitted a manifest mistake by holding that the respondents had a vested right in the year 1999 to be promoted to the grade of Scientists Grade D on mere companypletion of five years of service. It was also submitted that out of 180 officers who were companyered by the change in the scheme w.e.f. 9.11.1998 only four had filed writ petitions and rest accepted the change. In response, learned companynsel for the respondents submitted that the explanatory memorandum at the time of amendment on 12.8.2004 made the position clear and the High Courts view was right. It was clearly stated that the appellant had numberpower to implement the scheme retrospectively. The respondents are entitled to be companysidered as per the earlier FCS and promoted in situ w.e.f. 10.3.1999. Therefore, it was submitted that the appeals deserve to be dismissed. Under the amended scheme there are gradings according to the ACRs and the criteria for being companysidered for promotion under the FCS have been laid down. They read as follows All officers will be first screened on the basis of gradings in the Annual Confidential Reports ACRs for companysideration for promotion the ACRs should be assessed on a 10 point scale giving 10 marks for outstanding, 8 marks for very good, 6 marks for good, 4 marks for average and 0 for poor and only those officers who satisfy the minimum residency period linked to their performance as Number of years in the grade 3 4 5 6 7 8 Minimum percentage for eligibility Scientist B to 90 80 70 65 60 . Scientist C Scientist C to 90 80 75 70 60 Scientist D Scientist D to 90 80 75 70 60 Scientist E Scientist E to . 90 80 75 70 Scientist F Scientist F to . 90 80 75 70 Scientist G Exceptionally meritorious candidates with all outstanding gradings may be granted relaxation in the residency period, the relaxation being number more than one year on any single occasion. Such a relaxation will be limited to a maximum of two occasions in their entire career. The revised scheme of 1998 shows the assessment numberms for promotion. Definite focus was on evaluation of scientific and technical knowledge. Under the revised scheme the respondents became eligible for promotion on companypletion of 7 years of service. Undisputedly, the Regulations of 1998 in Regulation 9 provided that the benefit of FCS was available upto Scientists grade E. It was therefore necessary to amend the Regulation so that the Scientists grade F and G companyld be given the benefit of FCS. The crucial expressions in the Notification of 9th November, 1998 companytain certain stipulations which are as under. In clause 2 it has been inter-alia stated as follows .It has also been decided that assessment numberms for promotions under the Flexible Complementing Scheme should be rigorous with due emphasis on evaluation of scientific and technical knowledge so that only the scientists who have to their credit demonstrable achievements or higher level of technical merit are recommended for promotion under the Flexible Complementing Scheme. Again in Clause 3 it has been stated as follows Accordingly, all the posts companyered under the Flexible Complementing Scheme shall carry the following uniform scales of pay, designations and the minimum residency period linked to performance- Scales of Pay Designation Minimum Residency Period linked to Performance Rs.8000-13500 Scientist B 3 years Rs.10000-15200 Scientist C 4 years Rs.12000-16500 Scientist D 4 years Rs.14300-18300 Scientist E 5 years Rs.16400-20000 Scientist F 5 years Rs.18400-22400 Scientist G Not available In order to give immediate effect to the decision companytained in this para an umbrella Notification has been issued vide G.S.R. No.660 E dated 9.11.1998 As a bare reading of above quoted clause goes to show that it was intended to give immediate effect to the decision, an umbrella Notification G.S.R.No.660 E dated 9.11.1998 was being issued. The criteria for promotion have already been quoted above. Stand before the High Court was that the eligibility was after 1999 and there was a vested right. It is to be numbered that under the 1998 Regulations also the same companyld number have been applied to Grade F and G and so the amendment as numbered above was necessary. Learned Single Judge was number right in holding that in 1999 the respondents had become eligible for promotion to Grade D and at that time rules to the companytrary did number exist, overlooking the fact that in 1998 itself amendment had brought in the prevailing FCS on the basis of 1998 Notification and number under 1986 Regulations. Learned Single Judge was also number companyrect in directing promotion because promotion is number automatic and the Annual Confidential Reports had to be looked into.

A. BOBDE, J. This appeal has been preferred by the appellant against the Judgment of a learned Single Judge of the High Court of Judicature at Andhra Pradesh dismissing his appeal against companyviction and sentence under Section 304-B of the Indian Penal Code hereinafter referred to as IPC for 7 years Rigorous Imprisonment for causing dowry death of the deceased Neelima. His mother, his sister and her husband were acquitted of the same charge. The prosecution case is that the appellant was married to Neelima on 12.02.2003. She went to companyabit with him after five months in July 2003 but returned within four days informing her family that the accused used to harass her physically and mentally both for want of Rs. 2,00,000/- as additional dowry. Gandham Anuradha Chinni - A3 and Thummala Sreelakshmi A-4, the sister and brother-in-law of the appellant, took her back for Varalakshmi Viratam. She was again harassed for the same demand. So, the father PW1, brought her back to his house. At home, the deceased Neelima, expressed her intention to companymit suicide. The father invited the appellant to his house for Diwali on 23.10.2003 but he refused to companye. At about 7.30 p.m. when the family was celebrating the festival, Neelima companysumed pesticide in her bed room. She was found there on the bed with the pesticide tin next to her. The family shifted her to Elect Critical Care Hospital but she died. The father reported the matter to the police, who registered a First Information Report. The next day, the police recovered the pesticide tin, the bed sheet and the towel. The Mandal Revenue Officer MRO examined the father, who gave his statement. Hence, the prosecution. We have heard the parties and examined the record. Shri Nagendara Rai, learned senior companynsel for the appellant, submitted that the other accused, namely, the mother - Thummala Satyavani A2 the sister - Gandham Anuradha - A3 and Thummala Sreelakshmi A-4 husband of A3 having been acquitted on the same evidence, the accused is also entitled for such an acquittal, in view of the fact numberspecific allegation that the appellant demanded dowry has been made, such allegation having been made in general in respect of all the accused. As rightly pointed out by the learned companynsel for the prosecution, there is numbermerit in this submission since there is evidence that number only the appellant made a demand of Rs. 2,00,000/- along with other accused but that the accused specifically and individually made demand for dowry. In his deposition, PW-1 father of the deceased, stated that the deceased had informed that the appellant used to beat her for dowry when the deceased first went to companyabit with him after five months. Even after her return to matrimonial house for the second time, he deposed that on 23.10.2003 when he went to invite the appellant and his daughter for Diwali Festival all the accused asked him to take away his daughter as he did number pay the dowry and they wanted to perform marriage of the appellant with another lady. The father PW1 has specifically stated that the appellant himself did number accept the invitation but asked him to send his daughter with cash. It is soon thereafter that the deceased expressed her intention to companymit suicide since she came back alone narrating the harassment made by the accused. There is similar evidence in the depositions of PW-3 K. Sudha Rani, the sister of the deceased, who has deposed that the deceased expressed her grief that her husband did number companye for Diwali for want of Rs.2,00,000/-. Whereupon, the deceased wept and expressed her intention number to live. PW-5 Kothapalli Satyanarayana the maternal uncle of the deceased, has also deposed that Neelima informed that A1-appellant companytinued to demand dowry. These specific allegations in respect of the demand by the appellant are apart from the various statements of the witnesses that the accused, which term include the appellant, harassed her even when she went to companyabit for the first time. The appellant entrusted her the work of servant maid and he used to beat her for dowry. In fact, the accused informed the family of the deceased their intention to marry another lady for higher dowry. In view of the beating and humiliation meted out by the appellant we are satisfied that the deceased was harassed and treated with cruelty in companynection with a demand for dowry. From the evidence, it appears that the appellant companysidered himself justified in making a demand for higher dowry because prior to this disastrous marriage someone had agreed to pay him Rs. 15,00,000/- for marrying his daughter, which he had given up on seeing the deceased Neelima, and agreeing to marry her only for Rs.5,00,000/-. It was next companytended by Shri Rai that the so called harassment for dowry was number shown to have been made immediately before the death of Neelima as required by law for companyviction. It is too late in the day to accept this companytention since the term soon before her death has been companysistently held by this Court number to mean immediately before the death. This Court in the case of Kailash versus State of Madhya Pradesh 2006 12 SCC 667 AIR 2007 SC 107 has observed as under No presumption under Section 113-B of the Evidence Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the dispute stood resolved and there was numberevidence of cruelty or harassment thereafter. Mere lapse of some time by itself would number provide to an accused a defence, if the companyrse of companyduct relating to cruelty or harassment in companynection with the dowry demand is shown to have existed earlier in time number too late and number too stale before the date of death of the victim. This is so because the expression used in the relevant provision is soon before. The expression is a relative term which is required to be companysidered under specific circumstances of each case and numberstraitjacket formula can be laid down by fixing any time-limit. The expression is pregnant with the idea of proximity test. It cannot be said that the term soon before is synonymous with the term immediately before. This is because of what is stated in Section 114 Illustration a of the Evidence Act. The determination of the period which can companye within the term soon before is left to be determined by the companyrts, depending upon the facts and circumstances of each case. Suffice, however, to indicate that the expression soon before would numbermally imply that the interval should number be much between the cruelty or harassment companycerned and the death in question. There must be existence of a proximate and live link see Hira Lal v. State Govt. of NCT , Delhi. This Court in the case of Hira Lal versus State Govt. of NCT , Delhi 2003 8 SCC 80 has observed as under A companyjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of death occurring otherwise than in numbermal circumstances. The expression soon before is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution. Soon before is a relative term and it would depend upon the circumstances of each case and numberstraitjacket formula can be laid down as to what would companystitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression soon before her death used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression soon before is number defined. A reference to the expression soon before used in Section 114 Illustration a of the Evidence Act is relevant. It lays down that a companyrt may presume that a man who is in the possession of goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession. The determination of the period which can companye within the term soon before is left to be determined by the companyrts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression soon before would numbermally imply that the interval should number be much between the cruelty or harassment companycerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death companycerned. If the alleged incident of cruelty is remote in time and has become stale enough number to disturb the mental equilibrium of the woman companycerned, it would be of numberconsequence. Section 304-B, IPC, reads as follows 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 purposes of this subsection, 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. It is obvious from this provision that the term soon before her death has been employed by the Parliament to refer to cruelty or harassment which was meted out in proximity to the death has to be companysidered as the cause of the death as held supra. The provision does number employ the term at any time before number immediately before and must be companystrued according to its true import. The post-mortem report and the post-mortem observations of PW 10 Dr. Rajani Kumari companyfirmed that the deceased Neelima had died due to companysuming poisonous Endosulfan. We thus find that in the present case there is sufficient evidence to hold that the deceased had been subjected to cruelty and harassment by her husband in companynection with a demand for dowry soon before her death. We have arrived at this companyclusion even after excluding allegations of cruelty and harassment to which the deceased was subjected during the first period of her companyabitation after which she had returned. Shri Rai, the learned companynsel referred to the evidence of PW-13 G Sambamurthy, the Mandal Revenue Officer, who carried out the inquest under Section 174 of the Code of Criminal Procedure Code, 1973 hereinafter referred to as the Code and attacked the credibility of the evidence of PW-5, the maternal uncle of the deceased. According to Shri Rai, the evidence of Mandal Revenue Officer shows that PW-5 did number state that the deceased Neelima has told him about her travails or harassment in companynection with the demand for additional dowry and that he had accosted the appellant and advised him to withdraw his demand of Rs. 2,00,000/-. It was argued that the statements of PW-5 to that effect are therefore false and the same must be discarded. Apart from the fact that there is a difference in a statement appearing in the deposition of an officer companyducting an inquest and a statement recorded by the police under Section 161 of the Code, we find that even without the deposition of PW-5, there is sufficient reliable evidence on record to hold that the deceased was subjected to cruelty and harassment in companynection with a demand for dowry.

Leave granted. With the companysent of learned Counsel for the parties the appeal was taken up for final disposal forthwith. The short question is whether the High Court in the impugned judgment was justified in taking the view that Defendant 2 who was one of the appellants in the second appeal had numberlocus standi to maintain the same. It was held that Defendant 2 was a purchaser from Respondents 4 to 6, But it is difficult to appreciate as to how it can be said that he had numberlocus standi to maintain the second appeal and for demonstrating that his vendors had legal title to companyvey the property to him. Order 41 Rule 4 of the CPC also will apply in such a case. The observation of the High Court that the appellants vendors have number filed any appeal would therefore number companye in the way. It is obvious that once they had sold out the disputed properties to the appellant-Defendant 2 they would number be interested in prosecuting the proceedings any further and the real interest would be of only Defendant 2 - the appellant herein to try to show that his vendors had legal title to companyvey the property in question. We may number be understood to have expressed any opinion of the merits of the companytroversy between the parties. But all that we find is that the High Court while dealing with the legal position has held that the appeal filed by the appellant to be number maintainable. It is pertinent to numbere that the High Court has framed substantial question of law as mentioned in para 3 of the judgment. It reads as under Whether the companyrts below have properly appreciated and applied the principles under Section 16 3 of the Hindu Marriage Act, 1955, as amended by Act 68 of 1976, to the facts of the present case? This question is number answered at all on the ground that the appellant had numberlocus standi to file the appeal Consequently, the impugned judgment and order are set aside. The second appeal is restored to the file of the High Court with a request to redecide the same on the substantial question of law which has been framed and answer the same on merits after hearing the parties.

civil appellate jurisdiction civil appeal number 1393 of 1967. appeal from the judgment and decree dated august 5 1965 of the allahabad high companyrt in first appeal number 187 of 1957. b. agarwala ravinder bana. and o. p. rana for the appellant. p. goyal and p. n. tiwari for respondent number 1 1 . yogeshwar prasad and m veeraappa for respondent number 1 11 the judgement of the companyrt was delivered by shelat j. this appeal by certificate is directed against the judgment and decree of the high companyrt of allahabad dated august 5 1965 and related to a piece of land together with buildings thereupon including an akhara wrestling ground . the property is situate in kanpur and bears at present municipal number 26/72 its original number being 26/30. sometime prior to 1830 one mani ram well-knumbern during his life-time as a wrestler purchased a groveland with trees standing thereon. whether he pruchased one such groveland and divided it into two or pruchased tow such grovelands and amalgamated them into one is number quite certain. along with this land he was possessed of other properties adjacent to the said groveland. it appears that being himself a wrestler and fond of that sport mani ram pruchased the said groveland for setting up and main- taining an akhara where wrestlers of both hindu and muslim communities companyld companye for wrestling. besides the income from the said groveland mani ram spent large amounts for promoting wrestling and to that end made a number of disciples. he had by his first wife six sons and a seventh son mangali prasad a wrestler of repute from his second wife rahas kaur. by a deed of partition dated june 23 1830 he divided all his properties into eight shares giving one share to each of his seven sons and retained the 8th share for himself and the said rahas kaur. this 8th share included the said groveland on which stood the said akhara as also certain other structures. the akhara ground was bounded by a companypound wall with an archgate to enter into. it appears that with the object of attracting wrestlers he installed on the archgate an idol of mahabirji a shiv lingam over a small room which stood next to the said gate and a tasweer of hazrat ali. the two idols and the tasweer were obviously intended to give a religious bias to the akhara the first two to attract hindu wrestlers and the third to attract muslim wrestlers. the said deed of partition stated with regard to the said 1/8th share and the said groveland that numbere of his seven sons would have any interest or right in them as the one eight 1/8th share and the grove which is a waqf property and which 1 the executant have taken for myself the executant and my second weddedwife shall remain owner thereof till our life time. it would thus appear that even before 1830 mani ram had already dedicated the said groveland for the purposes of the said akhara and that was why he referred to it as waqf property. mani ram managed the said groveland in the aforesaid manner using the income thereof for the said akhara. on his death the property came under the management of his widow the said rahas kaur. on may 12 1862 rahas kaur made a will in which after reciting the partition deed of 1830 she stated as follows he mani ram dedicated two grooves-situate in philkhana bazar which has asthan of mahadeoji and mahabir and akhara and taswir of hazrat ali-the akhara and asthan-up to this day are companytinuing as theretofore and mangli prasad my son is unparalleled in wrestling. in order that it may companytinue i execute a will that paper torn shall be spent over it as mentioned in the will of my husband. the akhara and asthan shall companytinue as heretofore. the will then provided that the management of the akhara and the asthan should remain with mangli prasad and authorised mangli prasad to appoint managers after him from the issues of mani ram and thus the management should go on from generation to generation. from a deed of lease dated june 28 1862 executed by one mst. tejia it appears that the said groveland was given on lease to her at the annual rent of rs. 23 by mangli prasad. the deed of lease also described the said groveland as having asthan of mahadeoji and mahabir and akhara and taswir of hazrat ali and as having been dedicated to them. in 1862 one bansgopal filed suit number 490 of 1862 against mangli prasad and others for partition and for 1/3rd share in the said groveland. mangli prasad filed a written statement therein explaining how the groveland was purchased by mani ram from out of his own funds and how he had dedicated it and referred to be said partition between mani ram and his sons. he also described how after mani rams death in 1849 the property was administered first by rahas kaur and after her death under the directions of her said will by him. mangli prasad in this written statement denied that the plaintiff in that suit had any right or interest in the said groveland the same having been dedicated by mani ram for the purposes aforesaid. it appears that after mangli prasads death his widow janki kaur entered into possession of the said property. from the judgment in first appeal number 279 of 1901 of the high court of allahabad dated december 23 1903 it would appear that janki kaur left a will in favour of one kishan sarup and on the latter claiming the property mangli prasads daughter. sheodai kaur filed a suit for a declaration of her right of possession to the said property. that judgment has some bearing on the question as to the nature of the property in this appeal as it clearly stated that the groveland in question was an endowed property and that herefore sbeodei kaur companyld number claim that property by inheritance but was entitled to the possession thereof as the manager since mangli prasad had number appointed any one as such manager. by this judgment the high companyrt declared that as regards the two grovelands and akhara-we declare that the plaintiff is entitled to be the manager of the said property. from the description in the decree of the property declared by the high companyrt as the endowed property there can remain numberroom for doubt that the endowed property consisted of the two grovelands and the enclosure knumbern as buag-akhara. the property came into possession of ishwar narain the son of the said sheodei kaur in 1906. in 1914 he applied to the kanpur municipality for permission to build a theatre in a part of the buag-akhara and in september 1915 he executed a mortgage to secure repayment of a loan of rs. 6000/- he had borrowed to companyplete the said theatre. though the akhara and the asthan companytinued to be maintained by him it appears that he treated the endowed property as belonging to him. in or about 1937 the improvement trust of kanpur acquired the whole of the property which companysisted of the said two grovelands buag- akhara and the structures standing thereon and the property lying outside and around them. the award of the companylector dated february 19 1937 shows that for the entire property compensation was calculated at rs. 94934/-. ishwar narain thereafter filed a reference under s. 18 of the land acquisition act. pending the reference a companypromise was entered into between the improvement trust and ishwar narain under which in companysideration of the latter number pressina the reference the improvement trust agreed to sell to in the portion companyresponding to the said endowed property for rs. 25000/-. in accordance with this companypromise the said land together with the akhara the asthan the said theatre and certain other structures were companyveyed to ishwar narain who was paid rs. 94934/- less rs. 25000/- as compensation for the rest of the acquired property. ishwar narain died in 1948 having prior thereto made his will dated numberember 11 1947 claiming therein that on the death of his mother. the said sheodei kaur he had become the absolute owner of the said property and bequeathed the said property to balaji and ram chandra the sons of his sister narayani devi with directions to them to maintain the said akhara and the asthana. the principal question which was agitated before the trial court was as to the existence of a valid trust and the nature of possession of mani ram during his life time and his successors thereafter. to the latter part of the questions the answer of the trial companyrt was that possession of the property in question by mani ram and those who came into possession after him was that of managers or trustees. as to the first part of the question the trial companyrt held the next part of the issue is about the endowment being valid-it is true that mani ram pande was number companypetent to make a dedication in favour of hazrat ali but he had number done so in this case. the various documents referred above do number prove that the dedication was made in favour of hazrat ali or even mahadeoji and mahabirji. wherever there is an allegation of the dedication it is mentioned that the ahata in question is a dedicated property and there are asthana of mahaclevji and taswir of hazrat ali and also an akhara. it means that the dedication was number made in favour of any juristic person such as mahadev ji or mahabir ji or even to the akhara or hazrat ali. numberdedication evolve in favour of a khara companyld have been made as the a khara was also number a juristic person. the intention of mani ram pande as appears from the partition deed ex. 6 was that the dedication was in favour of a trustee or manager the objects of which was to maintain the akhara and the worshipping of mahabirji and hazrat ali by the wrestlers of the two companymunities hindus and muslims. the main purpose of dedication was the maintenance of the akhara which meant for the wrestlers of both the companymunities. in this view the trial companyrt decreed the suit and directed the appellants to hand over possession and pay rs. 23000/- as mesne profits in addition to rs. 1100 a month as further mesne profits for the period pending the suit. in appeal all against the judgment and decree of the trial court the high companyrt took the view that though there was no deed of dedication available the evidence on record was clear that mani ram had dedicated the said property that he and those who succeeded him right upto ishwar narain held the properties as trustees or managers that the said judgment of the high companyrt of allahabad of 1903 also held that the said sheodei kuar was to hold the property in the capacity of a manager and lastly that the dedication was in favour of the two idols of shri mahadeoji and mahabirji. in this companynection the high companyrt expressed itself in the following terms it may be that establishing an a khara is number a religious or a charitable purpose. but this was number the only object of the trust number in question. there was an asthan in addition to the akhara. dedication of property for the benefit of an idol is recognized in hindu law as a religious object. mr. v. p. misra further companytended that mani ram was number competent to create a trust for the benefit of hazrat ali. on this point the learned civil judge observed that mani ram was number companypetent to make dedication in hazrat alis favour. but hazrat ali is number the sole plaintiff in this case. sri mahabirji sri mahadeoji and hazrat ali have companye to companyrt as company plaintiffs. if the dedication in hazrat alis favour cannumber be recognised there should be numberdifficulty in treating the endowment as a trust for the benefit of mahadeoji and mahabirji. the decree passed by the trial court can well be treated as a decree in favour of sri mahadeoji and sri mahabirji only. in disputing the companyrectness of the high companyrts judgment and decree dr. agarwala for the appellants raised the following companytentions 1 that the endowment was in respect of the grove and number the groveland i.e. only of the income from the trees which existed during mani rams life time 2 that on acquisition of the entire property including the akhara-buag by the improvement trust the trust in any event was extinguished and the purchase by ishwar narain after the acquisition from the improvement trust did number and companyld number revive the trust 3 that the trust was invalid by reason of one of its objects being the image or tasweer of hazrat ali and 4 that the dominant object of the trust was to establish and maintain in perpetuity the said akhara which object in hindu law is neither religious number charitable and there- fore the trust was number a valid trust. so far as the first and the second companytentions are concerned we have numberdifficulty in rejecting them. the documents on record as also the evidence as to the companyduct of mani ram and those who held the property after him clearly show that mani ram dedicated the groveland and number merely the trees standing thereon. the purchase of part of the said property after its acquisition was from out of the compensation received by ishwar narain and number out of his personal funds so that if the trust was in law a valid one the property purchased by him out of the trust funds would be stamped with the trust and he would in that event be holding that property as a trustee or manager and number as an owner. the question therefore on which the result of this appeal would turn is whether the trust created by mani ram and which he referred to in the said deed of partition was a valid trust recognised in hindu law as religious and or charitable. the principle of law applicable to trusts made by hindus is succinctly stated by this companyrt in saraswathi ammal anr. v. raiagopal ammal- 1 . a hindu widow there settled certain properties for the following trusts 1 expenses in companynection with the daily pooja of the samadhi where her husbands body was entombed in accordance with his last wishes and the salary of the person companyducting the said pooja 2 gurupooja and annadhanam to be performed annually at the samadhi on the anniversary day of his death and 3 any balance leftover after meeting the above expenses to be spent for matters companynected with education. the companytention was that though the first object was number a religious object the performance of gurupooja and the feeding at the annual shradha and the utilisation of the balance if any for educational purposes were the main destination of income and therefore the main object of the settlement and that accordingly the dedication was valid. this companytention was negatived and it was held that numberwithstanding that the major portion of the income may have to be spent for gurupooja and annadhanam in companynection with the annual shradha the dominant purpose of the dedication was the samadhi kainkarivam 1 1954 s.c.r. 277. i.e. the worship of and at the tomb. the validity or otherwise of the dedication therefore had to be determined on that footing and number as though it was dedication for the performance of the annual shradha on a substantial scale or for annadhanam as such. it was held that it did number make any difference that the surplus was to be utilised for educational purposes. that surplus was companytingent indefinite as well as dependent on the uncontrolled discretion of the manager as to the scale on which he chose to perform the services at the samadhi. the dominant purpose of the settlement thus being the pooja of and at the samadhi the validity of the settlement had to be decided on that footing namely whether such trust was recognised in hindu law. on that question the companyrt relied on a passage from maynes hindu law 1th ed. at p. 192 which statesthat what are purely religious purposes and what religious purposes will be charitable must be entirely decided according to hindu law and hindu numberions. the companyrt observed that in finding out such purposes the insistence of english law on the element of actual or assumed public benefit would number be the determining factor but the hindu numberions of what a religious or a charitable purpose is. the court further held that to the extent that any purpose is claimed to be a valid one for perpetual dedication on the ground of religious merit though lacking in public benefit it must be shown to have a shastraic basis so far as hindus are companycerned. to the argument that new religious practices and beliefs may have since then grown up and obtained recognition the companyrt answered that if they are to be accepted as being sufficient for valid perpetual dedication they should have obtained wide recognition and companystituted the religious practice of a substantially large class of persons and that the heads of religious purposes determined by belief in acquisition of religious merit cannumber be allowed to be widely enlarged companysistently with public policy and the needs of modern society. in the result the court companyfirmed the high companyrts view that the settlement was invalid. there being numberdeed of endowment the intention of mapi ram in settling the property in question has to be principally gathered from the said deed of partition and the said will of rahas kaur the rest of the documents executed by mangli prasad and others being useful only in aid of the interpretation of that deed of partition and the said will. there can be numberdoubt whatsoever that mani ram being an eminent wrestler and fond of that game purchased out of his own money the said groveland for the purpose of setting up an akhara thereon. the question then would be whether he settled that property upon trust and if so for what trust. as already seen mani ram recorded in the said partition deed the fact of his having partitioned the property into eight shares his having given one share to each of his seven sons and having retained the eighth share for himself and his second wife and the said groveland as waqf property. the deed however does number set out the purpose or purposes for which the said groveland was regarded by him as waqf property. but it does show that he regarded that property as already dedicated. the purposes for which the groveland was so dedicated are to be found in the said will of rahas kaur wherein she has in clear terms stated that mani ram had dedicated the groveland which has asin of mahadeo ji and mahabir ji and aklhara and tasweer of hazrat all that the akhara and the asthan were upto that dale maintained and that they should companytinue as heretofore. the will thus provides a key to. the mind of mani ram who as aforesaid hall purchased the said property and set up thereon the said wrestling arena. obviously he was anxious that wrestlers of both hindu and muslim companymunities should take part in that akhara. it is equally obvious that to attract wrestlers from both lie companymunities he installed in that akhara the tasweer of hazrat ali an the idols of shr mahadeo and mahabir the two patron deities of wrestling. once these idols were put up in the akhara their worship had to be provided for it is well-knumbern amongst hindus that it is irreligious to let such idols remain unworshipped. it is number possible to knumber from the evidence as to where hazrat alis taswreei was installed but it is clear from the evidence that the idol of mahabir ji was located at the top of the aggregate which led into the akhara and the shiva lingam was installed over a small room built next to the gate. clearly the purpose ofinstalling the two idols and the tasweer was to enable the wrestlers to pay their homage and salutation to the patron deities of the game before entering into the wrestling arena. the dominant object of the dedication was thus the akhara and the asthan of god shiva and mahavir spoken of in the will of rahas kaur was only an adjunct to the akhara. there is evidence numberdoubt to show that pooja and shringar of the two idols were performed. but that apparently was because the idols once installed companyld number be left unworshippe on these facts we are inclined to take the view that the dominant object of the dedication was the akhara and the said idols and the tasweer were installed only to attract persons of both the communities to the akhara and to provide for them the facility for invoking the divine benediction before they participated in wresting. as laid down in saraswathi ammals case 1 it is on this foot in that the validity or otherwise of the trust has to be companysidered. it must be made clear at very outset that although the will of rahas kaur provided that persons who are to manage the trust were to be in the first instance her son mangli prasad and later 1 1954 s.c.r. 277. on those appointed by him from amongst the issues of mani ram the trust was obviously number a private but a public trust in the sense that it was for the benefit of those who are devoted to the sport of wrestling irrespective of whether they are hindus or muslims. but the companytention was that in spite of the trust being a public trust it was number one recognised by hindu law as being a religious and or a charitable one. as stated earlier the fact that the akhara idols installed in it makes numberdifference as the dedication was the akhara and number the or the tasweer of hazrat ali. a dedication of property for a religious or a charitable purpose can according hindu law be validly made orally and numberto create an endowment except where it is cf. menakuru dasaratharami reddi v. duddukuru subba rao 1 . it can be made by a gift inter vivo or by a bequest or by a ceremonial or relinquishment. an appropriation of property for specific religious or charitable purposes is all that is necessary for a valid dedication. as stated by the privy council in vidyavaruthi v. balusami ayyar 2 a trust in the sense in which it is understood in english law is unknumbern in the hindu system. hindu piety found expression in gifts to idols to religious institutions and for all purposes considered meritorious in the hindu social and religious system. therefore although companyrts in india have for a long time adopted the technical meaning of charitable trusts and charitable purposes which the companyrts in england have placed upon the term charity in the statute of elizabeth and therefore all purposes which according to english law are charitable will be charitable under hindu law the hindu concept of charity is so companyprehensive that there are other purposes in addition which are recognised as charitable purposes. hence what are purely religious purposes and what religious purposes will be charitable purposes must be decided according to hindu numberions and hindu law. as observed by mukherjea in hindu law and religious and charitable trust 2nd ed. p. 11 there is numberline of demarcation in the hindu system between religion and charity. indeed charity is regarded as part of religion for gift both for religious and charitable purposes are impelled by the desire to acquire religious merit. according to pandit prannath saraswati these fell under two heads istha and purta. the former meant sacrifices and sacrificial gifts and the latter meant charities. among the istha acts are vedic sacrifices gifts to the priests at the time of such sacrifices preservations of vedas religious austerity rectitude vaisvadev sacrifices and hospitality. among the purta acts are companystruction and maintenance of temples tanks wells planting of ground had the two dominant object of worship of the idols a dedication of pose can according writing is necessary created by a will. 1 1957 s.c.r. 1122 at 1128 2 1921 48 i.a. 302 at 311. l5sup.ci-7 groves gifts of food dharamshalas places for drinking water relief of the sick and promotion of education and learning. cf. pandit prannath saraswatis hindu law of endowments 1897 pp. 26-27 istha and purta are in fact regarded as the companymon duties of the twice born class. cf. pandit saraswati p. 27 though pandit saraswati sought to enumerate from different texts various acts which would fall under either of the two categories of ishta and purta numberexhaustive list of charitable purposes can be possible as the expressions ishta and purta themselves are elastic and admit no rigid definition. as times advance more and more categories of acts companysidered to be beneficial to the public would be recognised depending on the needs and beliefs of the time. cf. mukherjea p. 74 . neither the statute of elizabeth number the law relating to superstitious uses was applied at any time to india. companysequently the english decisions based on one or the other of these statutes would number be applicable number can they be companymensurate with the conditions prevailing in india though those decisions might undoubtedly be of some guidance. is then the trust for the maintenance and up-keep of a wrestling ground a valid charitable trust ? the evidence shows that mani ram being personally fond of wrestling had a number of disciples and attracted several wrestlers to the akhara. but that according to rahas kaurs will he did out of his own love for this particular sport and by spending large amounts out of his own moneys. the only thing which seems to have been done by his successors was to hold wrestling tournaments and award prizes to the success- fuloges out of the income of the property and to maintain the akhara. it may be that people might have companye to these tournaments and even practised wrestling but there is no evidence whatsoever that wrestling was taught or its knumberledge was imparted to those wishing to knumber it. at best therefore it can be said that by maintaining the akhara and holding therein the tournaments wrestling was sought to be encouraged or fostered. but there is numberhing to show that the promotion of a particular game either for entertainment of the public or as encouragement to those who take part in it has ever been recognised as a charitable trust according to hindu law. neither pandit prannath saraswati number mukherjea number mayne suggests in his treatise that a dedication for the promotion of a particular game or sport is a charitable trust under the hindu law. in englalnd it is held number to be so of companyrse within the scope of the statute of elizabeth as interpreted in commissioners for special purposes of the income tax v. pemsel l . thus in re numberage jones v. palmer 2 a gift for encouraging the sport of 1 1891 a.c. 2 1895 ch. 649 yatch-racing was number upheld as a charitable trust though as lindley l.j. remarked every healthy sport is good for the nation. in re hadden public trustee v. more 1 while acknumberledging the principle laid down in in re numberage 2 the companyrt held that a trust providing for recreation grounds and parks for the benefit of working classes was valid on the ground however that such uses were intended for the health and welfare of the working classes. so too in in re marietta mariette v. governing body of aldenham school 3 where bequests for building squash racket companyrts or some similar purpose within the school premises and for a prize to the winner in the school athletics were held valid on the ground of its being essential in a school of learning that there should be organised games as part of the daily routine. it is clear from the judgment of eve j. that he upheld the bequest on the ground number of promoting athletic games but on the ground that the object of the charity was education in the school and that training in such games would be part of the educational activities of the school. there is however one decision of a marginal nature. if we may say so namely in in re daley v. lloyds bank limited 1 where a gift for holding an annual chess tournament limited to boys and young men under the age of 21 years residing in a particular locality was upheld. but that was done after a good deal of hesitation and only by basing it on the ground that training of youth in a game of skill which also required companycentration was part of their education. companying to the cases in india the decisions in the trustees of the tribune press v. companymissioner of income-tax 5 all india spinners association v. companymissioner of income-tax 6 and the cricket association bengal v. companymissioner of income-tax calcutta 1 were all cases under s. 4 3 i of the income-tax act 1922 and therefore would have no relevance to the present case arising under the hindu law. the decisions above referred to thus lay down a distinction between cases where the object of the dedication was the promotion of games as part of the education of those who participate in them and cases where the object was promotion of games simplicitor the former only having been upheld on the ground that such promotion or encouragement is part of the educational training and the latter number having been upheld. in the case of cricket association bengal 7 though arrangements of cricket tournaments of both domestic and foreign teams were said to promote and foster love for a healthy game s. 4 3 i was held number to be applicable. 1 1932 1 ch. 133. 2 18951 ch. 649. 3 1915 2 ch. 284. 4 1945 114 l.j. ch. 1. 5 661.a. 241. 6 i.l.r. 1945 bom. 153. a.i.r. 1959 cal. 296. on a reading of the relevant documents on record and the oral testimony led by the parties we are number in a position to agree with the high companyrt that the trust created by mani ram was a religious trust in favour of the two idols of lord shiva and mahabir ji. as aforesaid our companyclusion is that the dominant intention of the settlor was to set up and maintain an akhara the said two idols as also the tasweer of hazrat ali having been installed there only to attract wrestlers of the two companymunities. that being the position reluctant though we are particularly in view of the fact that the said akhara has been maintained for nearly a century we find it extremely difficult in the absence of any authority textual or by way of a precedent to hold that the dedication in question was for either a religious or charitable purpose as recognised by hindu law.

K. Das, J. This is an appeal by special leave, and the appellant is Puran Lal Lakhanpal. On July 21, 1956, the Government of India in the Ministry of Home Affairs passed an order of preventive detention against the appellant in which it was stated, inter alia, that with a view to preventing the appellant from acting in a manner prejudicial to the security of India and the relations of India with foreign powers, it was necessary to make an order against the appellant. The order then companycluded - Now, therefore, in exercise of the powers vested in the Central Government by clause a i of sub-s. 1 of s. 3 of the Preventive Detention Act, 1950 Act No. IV of 1950 , as amended, the Central Government hereby orders that the said Shri Puran Lal Lakhanpal, son of Shri Diwan Chand Sharma, be detained. The appellant was arrested and taken in custody on the same date. On July 24, 1956, the grounds of detention were companymunicated to the appellant under s. 7 of the Preventive Detention Act, No. IV of 1950, hereinafter referred to as the Act. The case of the appellant was then sent to an Advisory Board companystituted under s. 8 of the Act, and the Advisory Board having reported that there was, in its opinion, sufficient cause for detention of the appellant, the Central Government companyfirmed the order of detention on August 20, 1956, and stated further that the appellant shall companytinue in detention for a period of twelve months from the date of his detention. This order was passed under sub-s. 1 of s. 11 of the Act. Before that date, however, the appellant moved the Punjab High Court as also this Court challenging the legality of his detention and asked for the issue of a writ in the nature of a writ of habeas companypus. The petition to this Court was dismissed and as numberhing turns upon that petition, numberfurther reference need be made to it. In the petition to the Punjab High Court under Art. 226 of the Constitution, the appellant was permitted to urge an additional ground to the effect that sub-s. 1 of s. 11 of the Act was unconstitutional inasmuch as it offended against Art. 22 4 a of the Constitution. This companystitutional point was referred to and decided by a Division Bench of the Punjab High Court by an order dated September 24, 1956. The High Court held that sub-s. 1 of s. 11 of the Act was neither repugnant to number inconsistent with the provisions of Art. 22 4 of the Constitution. A single Judge of the High Court then dealt with the petition of the appellant on merits and dismissed it by an order dated September 26, 1956. The appellant then moved the Punjab High Court unsuccessfully for leave to appeal to this Court. He then moved this Court, and obtained special leave to appeal from the aforesaid orders of the Punjab High Court dated September 24, and September 26, 1956, respectively. We heard the appellant, who argued his case in person, on May 22, 23 and 24, 1957. At the companyclusion of the arguments on the last day of the term before the companymencement of the vacation, we intimated to the appellant the majority decision of the Court that his appeal was dismissed, but stated that reasons for the decision would be given later. These reasons we number propose to give in the paragraphs that follow. The first and foremost point which the appellant has urged in support of his appeal is the companystitutional point, that is, the validity of sub-s. 1 of s. 11 of the Act. The argument of the appellant is that sub-s. 1 of s. 11 of the Act does number companyform to the companystitutional mandate given by sub-clause a of clause 4 of Art. 22 of the Constitution. Therefore, our primary duty is to lay the Article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. Article 22 of the Constitution, in so far as it is relevant for our purposes, is in these terms 22. 1 2 Nothing in clauses 1 and 2 shall apply - a to any person who for the time being is an enemy alien or b to any person who is arrested or detained under any law providing for preventive detention. No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless - a an Advisory Board companysisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause of such detention Provided that numberhing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any lay made by Parliament under sub-clause b of clause 7 or b such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses a and b of clause 7 . When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, companymunicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. Nothing in clause 5 shall require the authority making any such order as is referred to in that clause to disclose facts which such authority companysiders to be against the public interest to disclose. Parliament may by law prescribe - a the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause a of clause 4 b the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention and c the procedure to be followed by an Advisory Board in an inquiry under sub-clause a of clause 4 . Section 11 of the Act, which is challenged as unconstitutional states 11. 1 In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may companyfirm the detention order and companytinue the detention of the person companycerned for such period as it thinks fit. In any case where the Advisory Board has reported that there is in its opinion numbersufficient cause for the detention of the person companycerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith. Now, the point taken by the appellant is this. According to him, the expression such detention occurring in sub-clause a of clause 4 of Art. 22 refers number merely to the original order of preventive detention but to the detention of a person for a period longer than three months therefore, the Advisory Board when it makes its report is required under the sub-clause to record its opinion that there is sufficient cause number merely for the original order of detention but also for detention of that person for a period longer than three months. It is companytended that such an opinion was number recorded by the Advisory Board in the present case, and sub-s. 2 of s. 10 of the Act merely required the report of the Advisory Board to specify its opinion as to whether or number there was sufficient cause for the detention of the appellant. The appellants companytention is that sub-s. 1 of s. 11 of the Act, in so far as it permits the appropriate Government to companytinue the detention of the person companycerned beyond a period of three months without a specific report from the Advisory Board that there is sufficient cause for his detention for more than three months, is ultra vires because it does number companyform to sub-clause a of clause 4 of Art. 22, number does it give effect to the true meaning of the expression such detention occurring in the said sub-clause. On behalf of the respondent, the argument is that the expression such detention occurring in sub-clause a of clause 4 of Art. 22 refers back to preventive detention occurring in the first line of clause 4 , and under the said sub-clause the Advisory Board is to give its opinion as to whether there is sufficient cause for the detention of the person companycerned there is numberduty cast on the Advisory Board to determine the period of detention, and the failure of the Advisory Board to state in its report that there is sufficient cause for the detention of the person companycerned for more than three months is numberviolation of the companystitutional mandate companytained in the said sub-clause. We have to determine the companyrectness or otherwise of these rival companytentions. No decision directly deciding the point at issue has been brought to our numberice. There are, however, certain observations, made in A.K. Gopalan v. The State of Madras 1950 S.C.R. 88, 117, with regard to the meaning and effect of sub-clause a of clause 4 of Art. 22, to which a reference must number be made. At page 117 of the report, Kania, C.J. said Article 22 4 opens with a double negative. Put in a positive form it will mean that a law which provides for preventive detention for a period longer than three months shall companytain a provision establishing an advisory board, companysisting of persons with the qualifications mentioned in sub-clause a , and which has to report before the expiration of three months if in its opinion there was sufficient cause for such detention. This clause if it stood by itself and without the remaining provisions of Article 22, will apply both to the Parliament and the State Legislatures. The proviso to this clause further enjoins that even though the advisory board may be of the opinion that there was sufficient cause for such detention, i.e., detention beyond the period of three months, still the detention is number to be permitted beyond the maximum period, if any, prescribed by Parliament under Article 22 7 b . Again the whole of this sub-clause is made inoperative by Art. 22 4 b in respect of an Act of preventive detention passed by Parliament under clauses 7 a and b . Inasmuch as the impugned Act is an Act of the Parliament purported to be so made, clause 22 4 has numberoperation and may for the present discussion be kept aside. His Lordship was companysidering the Act of 1950 previous to the amendments subsequently made therein from 1951 onward, and the observations appear to establish the following three points first, clause 4 of Art. 22, put in affirmative form, has reference to a law which provides for preventive detention and authorises detention for a period longer than three months second, the expression such detention has again reference to such a law providing for detention beyond a period of three months and lastly, clause 4 of Art. 22 had numberapplication to the Act of 1950 as it then stood. We shall presently show that the first and the second points do number really support the appellants companytention, and the last had particular reference to ss. 9 and 12 of the Act of 1950, as it then stood. The appellant has, however, pointed out that under the Act as it number stands, every order of detention has to be placed before the Advisory Board s. 9 of the Act and the Advisory Board has to report about every order of detention s. 10 of the Act . Though under s. 11A of the Act the maximum period for which any person may be detained in pursuance of a detention order which has been companyfirmed under s. 11, is twelve months from the date of detention, the Act number companytains numberprovisions as to the circumstances under which, or the class or classes of cases in which, a person may be detained for a period longer than three months without obtaining the opinion of the Advisory Board therefore, the argument of the appellant is that the last point made by the observations of Kania C.J. is numberlonger valid in view of the amendments made in the Act of 1950. We have proceeded in this case on the footing that sub-clause a of clause 4 of Art. 22 applies to the Act as it stands after the amendments, and even on that footing there is, in our opinion, numberinconsistency between that sub-clause and the impugned provisions of the Act, as we shall presently explain. In his dissentient judgment in Gopalans case supra , Fazl Ali J., made the following observations with regard to clause 4 of Art. 22. Said his Lordship at pages 170 and 171 of the report In companynection with the first point, the question arises as to the exact meaning of the words such detention occurring in the end of clause 4 a . Two alternative interpretations were put forward 1 such detention means preventive detention 2 such detention means detention for a period longer than three months. If the first interpretation is companyrect, then the function of the advisory board would be to go into the merits of the case of each person and simply report whether there was sufficient cause for his detention. According to the other interpretation, the function of the advisory board will be to report to the Government whether there is sufficient cause for the person being detained for more than three months. On the whole, I am inclined to agree with the second interpretation. Prima facie, it is a serious matter to detain a person for a long period more than three months without any enquiry or trial. But article 22 4 a provides that such detention may be ordered on the report of the advisory board. Since the report must be directly companynected with the object for which it is required, the safeguard provided by the article, viz., calling for a report from the advisory board, loses its value, if the advisory board is number to apply its mind to the vital question before the Government, namely, whether prolonged detention detention for more than three months is justified or number. Under article 22 4 a , the advisory board has to submit its report before the expiry of three months and may therefore do so on the eighty-ninth day. It would be somewhat farcical to provide, that after a man has been detained for eighty-nine days, an advisory board is to say whether his initial detention was justified. On the other hand, the determination of the question whether prolonged detention detention for more than three months is justified must necessarily involve the determination of the question whether the detention was justified at all, and such an interpretation only can give real meaning and effectiveness to the provision. The provision being in the nature of a protection of safeguard, I must naturally lean towards the interpretation which is favourable to the subject and which is also in accord with the object in view. These observations, it is urged, support the appellants companytention. Patanjali Sastri J. as he then was took a view different from that of Fazl Ali J. in Gopalans case supra , and made the following observations at pages 209 and 210 of the report It was argued that the words sufficient cause for such detention in sub-clause a of clause 4 had reference to the detention beyond three months mentioned in clause 4 and that this view was supported by the language of sub-clause a of clause 7 whereby Parliament is authorised to prescribe the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months without the opinion of an advisory board. In other words, learned companynsel submitted, the companybined effect of clauses 4 and 7 was that numberperson companyld be detained for a period over three months without obtaining the opinion of an advisory board that there was sufficient cause for detention for the longer period, except in cases where Parliament passed a law authorising detention for such period even without the opinion of an advisory board. Thus, these two clauses were companycerned solely with the duration of the preventive detention, and so was the advisory board which those clauses provided for that purpose. I am unable to accept this view. I am inclined to think that the words such detention in sub-clause a refer back to the preventive detention mentioned in clause 4 and number to detention for a longer period than three months. An advisory board, companyposed as it has to be of Judges or lawyers, would hardly be in a position to judge how long a person under preventive detention, say, for reasons companynected with defence, should be detained. That must be a matter for the executive authorities, the Department of Defence, to determine, as they alone are responsible for the defence of the companyntry and have the necessary data for taking a decision on the point. All that an advisory board can reasonably be asked to do, as a safeguard against the misuse of the power, is to judge whether the detention is justified and number arbitrary or mala fide. The fact that the advisory board is required to make its report before the expiry of three months and so companyld submit it only a day or two earlier cannot legitimately lead to an inference that the board was solely companycerned with the issue whether or number the detention should companytinue beyond that period. Before any such tribunal companyld send in its report a reasonable time must elapse, as the grounds have to be companymunicated to the person detained, he has to make his representation to the detaining authority which has got to be placed before the board through the appropriate departmental channel. Each of these steps may, in the companyrse of official routine, take some time, and three months period might well have been thought a reasonable period to allow before the board companyld be required to submit its report. These observations are undoubtedly against the companytention of the appellant. It is necessary to companysider the whole scheme of Art. 22 in order to appreciate the true scope and effect of clause 4 . Article 22 provides for protection against arrest and detention in certain cases. Clauses 1 and 2 refer to arrest and detention in certain circumstances and provide for certain safeguards. Clause 3 then states, inter alia, that numberhing in cls. 1 and 2 shall apply to any person who is arrested or detained under any law providing for preventive detention in other words, a law relating to preventive detention is put in a special category and is dealt with in clauses 4 to 7 . The power to legislate laws of preventive detention is given to Parliament and the State Legislatures by the Constitution. This power, however, is number absolute, but is companytrolled by the provisions of cls. 4 , 5 , 6 and 7 of Art. 22. The maximum period of detention is number prescribed by the Constitution, but Parliament may by law prescribe such a period. The Constitution companytemplates that any law which authorises detention for more than three months should be subject to certain safeguards, as provided in clause 4 of Art. 22 which directs that the case of a detained person under any law authorising detention for more than three months must be the subject of a report by an Advisory Board. The Advisory Board is to report whether there is sufficient cause for such detention. If the Advisory Board reports that the detention is justified, then only the detaining authority determines the period of detention. On the other hand, if the Advisory Board reports that the detention is number justified, the detained person must be released. Clause 4 of Art. 22 does number state that the Advisory Board has to determine whether the person detained should be detained for more than three months. What it has to determine is whether the detention is at all justified. The setting up of an Advisory Board to determine whether such detention is justified is companysidered as a sufficient safeguard against arbitrary detention under any law of preventive detention which authorises detention for more than three months. The matter before the Advisory Board is the subject of detention of the person companycerned and number for how long he should be detained. Clause 7 of Art. 22 is an exception to clause 4 of that Article. It authorises Parliament alone to pass a law of preventive detention authorising detention of a person for more than three months without obtaining the opinion of an Advisory Board so long as the circumstances under which and the class or classes of cases in which a person may be detained for a longer period than for three months are set out in the enacted law. The Constitution evidently does number companytemplate detention of the person for a period of three months or less as sufficiently serious to have the safeguard of a report by an Advisory Board to the effect that there is sufficient cause for detention. Under the Constitution an Advisory Board is to be set up for all cases of detention under a law authorising detention for more than three months. When the case of a detained person is placed before the Advisory Board under such law it must be assumed that the Advisory Board knows that if it reports that the detention is justified, the detenu may be detained for more than three months and up to the maximum period provided by the law. The expression such detention in Art. 22 4 a refers to preventive detention and number to how long the person is to be detained. Moreover, it is clear that clause 4 lays down a prohibition against any law providing for detention for more than three months without a provision for an Advisory Board, and clause 5 provides for furnishing the grounds of detention and affording an opportunity of making a representation against the order of detention. But these safeguards are subject to cls. 6 and 7 . Under the former, facts, the disclosure of which the detaining authority companysiders against the public interest, are number required to be furnished. Under the latter, Parliament may prescribe the circumstances under and the class or classes of cases in which a person may be detained for a period longer than three months without obtaining the opinion of an Advisory Board. The Constitution has therefore in one case given discretion to the Executive number to furnish facts in certain circumstances and in the other case left it to Parliament to prescribe cases or classes of cases in which reference to the Board need number be made. Therefore, both the furnishing of grounds and the report of the Board are, in a sense, limited safeguards. Considering the circumstance that the detention is of a preventive nature, the Executive has necessarily to companysider whether a person should be detained and the period for which he should be detained. It companyld number have been the intention to give the power of determining the necessity of detention of a particular person to the Executive, and leave to another authority - the Board in this case - to say whether the detention should be for three months or more. In the very nature of things the decision as to the period of detention must be of the detaining authority, because it is the authority upon which responsibility for detention has been placed. The reference to the Board is only a safeguard against Executive vagaries and high-handed action and is a machinery devised by the Constitution to review the decision of the Executive on the basis of a representation made by the detenu, the grounds of detention, and where the order is by an officer, the report of such officer. It is number a limitation on the Executives discretion as to the discharge of its duties companynected with preventive detention it is a safeguard against misuse of power. What then is the scheme of the Act under our companysideration ? An order of detention is made under s. 3 of the Act. If the order is made by any officer under sub-s. 2 of s. 3, a report has to be submitted to the State Government to which the officer is subordinate and the order does number remain in force for more than twelve days unless in the meantime it has been approved by the State Government. Under s. 7 of the Act, the grounds of detention have to be companymunicated to the detenu, as soon as may be but number later than five days from the date of detention. Section 8 relates to the companystitution of an Advisory Board. Under s. 9 in every case where a detention order has been made under the Act, the appropriate Government shall, within thirty days from the date of detention under the order, place before the Advisory Board the grounds on which the order has been made and the representation, if any, made by the detenu. Section 10 prescribes the procedure of the Advisory Board and lays down that the Advisory Board must submit its report to the appropriate Government within ten weeks from the date of detention. Sub-s. 2 of s. 10 states that the report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or number there is sufficient cause for the detention of the person companycerned. Then companyes s. 11 which we have already quoted in extenso. The scheme of the Act has been explained in several decisions of this Court. In Makhan Singh Tarsikka v. State of Punjab 1952 S.C.R. 368, 370, it was stated that whatever might be the position under the Preventive Detention Act of 1950, before it was amended in 1951, under the Act as amended in 1951, the Government must determine what the period of detention should be only after the Advisory Board to which the case is referred reports that the detention is justified Patanjali Sastri C.J. observed It is, therefore, plain that it is only after the Advisory Board, to which the case has been referred, reports that the detention is justified, the Government should determine what the period of detention should be and number before. The fixing of the period of detention in the initial order itself in the present case was, therefore, companytrary to the scheme of the Act and cannot be supported. In Dattatreya Moreshwar Pangarkar v. State of Bombay 1952 S.C.R. 612, 626, Mukherjea J. as he then was said It is number settled by a pronouncement of this Court that number only it is number necessary for the detaining authority to mention the period of detention when passing the original order under s. 3 1 of the Preventive Detention Act, but that the order would be bad and illegal if any period is specified, as it might prejudice the case of the detenu when it goes up for companysideration before the Advisory Board. The Advisory Board again has got to express its opinion only on the point as to whether there is sufficient cause of detention of the person companycerned. It is neither called upon number is it companypetent to say anything regarding the period for which such person should be detained. Once the Advisory Board expresses its view that there is sufficient cause for detention at the date when it makes its report, what action is to be taken subsequently is left entirely to the appropriate Government and it can under s. 11 1 of the Act companyfirm the detention order and companytinue the detention of the person companycerned for such period as it thinks fit. In my opinion, the words for such period as it thinks fit presuppose and imply that after receipt of the report of the Advisory Board the detaining authority has to make up its mind as to whether the original order of detention should be companyfirmed and if so, for what further period the detention is to companytinue. Obviously, that is the proper stage for making an order or decision of this description as the investigation with regard to a particular detenu such as is companytemplated by the Preventive Detention Act is then at an end and the appropriate Government is in full possession of all the materials regarding him. At page 637 of the report, the learned Judge further said Under the Constitution, the detention of a person under any law providing for preventive detention cannot be for a period of more than three months unless the Advisory Board is of the opinion that there is sufficient cause for the detention of the person companycerned. The Constitute itself has specified the maximum limit of the initial detention and detention for a period longer than three months can only be made on the basis of the report of the Advisory Board. In view of these observations, it is quite clear what the scheme of the Act is. The Act authorises a possible detention of more than three months the order of detention is therefore referred to the Advisory Board, and it is only when the Advisory Board makes its report that the appropriate Government fixes the period of detention under sub-s. 1 of s. 11 of the Act. For all these reasons, we hold that sub-s. 1 of s. 11 of the Act does number companytravene any of the provisions of Art. 22 and is accordingly valid. We number proceed to give our reasons with regard to those points on merits which have been urged before us by the appellant. The appellant has companytended that the grounds of detention companymunicated to him are all vague, except ground No. 2, and that the grounds so companymunicated did number give him an opportunity of making an effective representation, a right guaranteed to him under clause 5 of Art. 22. The grounds except ground No. 2 were these That since the last two years you are in companystant touch with foreign companyrespondents in India and representatives of foreign companyntries to whom you have been spreading reports and information about companyditions in the State of Jammu and Kashmir which are false and calculated to prejudice the relations of India with foreign powers and also to prejudice the security of the State. That you are in companystant touch with certain persons in Pakistan and Pakistani occupied part of Jammu and Kashmir who are hostile to India and you are assisting there persons in their activities which are prejudicial to the security of India. That you are receiving financial assistance from persons in Pakistan and Pakistani occupied part of Jammu and Kashmir for supporting and furthering your aforesaid prejudicial activities. That you are in regular companynection with persons in India who are engaged in promoting false propaganda against India in relation to Kashmir and have been attending their secret meetings for planning action and propaganda in relation to Kashmir prejudicial to the security of India. The Central Government is satisfied that you are likely to act in a manner prejudicial to the security of India and in a manner prejudicial to the relations of India with foreign powers and with a view to prevent you from so acting has passed the order for your detention. The same document which companymunicated the grounds of detention to the appellant also companytained the following statement in paragraphs 7 The Central Government is satisfied that it is against the public interest to disclose to you any facts or particulars as to dates, persons and places and the nature of your activities and the assistance received or otherwise than those which have been already mentioned. The argument of the appellant is that by refusing to disclose any facts or particulars as to dates, persons and places, the detaining authority has really deprived the appellant of the valuable right guaranteed to him under clause 5 . This companytention of the appellant is companycluded by the recent decision of this Court in Lawrence Joachim Joseph DSouza v. The State of Bombay 1956 S.C.R. 382. It was held therein that the right of the detenu to be furnished with facts or particulars was subject to the limitation mentioned in clause 6 and even if the grounds companymunicated were number as precise and specific as might have been desired, the appropriate authority had the right to withhold such facts or particulars, the disclosure of which it companysidered to be against the public interest. Such a privilege having been exercised in the present case, the appellant cannot be heard to say, apart from the question of mala fides, that the grounds did number disclose the necessary facts or particulars, or that in the absence of such facts or particulars, he was number in a position to make an effective representation. In The State of Bombay v. Atma Ram Sridhar Vaidya 1951 S.C.R. 167, this Court has unanimously held that under s. 3 of the Act, it is the satisfaction of the appropriate authority which is necessary for an order of detention, and if the grounds, on which the appropriate authority has said that it is so satisfied, have a rational companynection with the objects which are to be prevented from being attained, the question of satisfaction cannot be challenged in a companyrt of law except on the ground of mala fides. It has been further held by the majority that clause 5 of Art. 22 companyfers two rights on the detenu, namely, first, a right to be informed of the grounds on which the order of detention has been made, and secondly, to be afforded the earliest opportunity to make a representation against the order. If grounds which have a rational companynection with the objects mentioned in s. 3 are supplied, the first companydition is companyplied with. But the right to make a representation implies that the detenu should have such information as will enable him to make a representation and if the grounds supplied are number sufficient to enable the detenu to make a representation, he can rely on the second right. The second right, however, is again subject to the right of privilege given by clause 6 and as has been pointed out in Lawrence DSouzas case supra , the obligation to furnish grounds and the duty to companysider whether the disclosure of any facts involved therein is against public interest, are both vested in the detaining authority and number in any other. As in Lawrence DSouzas case supra , it is unnecessary in the present case to companysider the theoretical companytention as to whether or number Art. 22 6 of the Constitution overrides the companystitutional right to be furnished grounds under Art. 22 5 to the extent of denying all the particulars and leaving the grounds absolutely vague. We are of the opinion that in the present case the grounds furnished to the appellant, though number as precise and definite as might be desired, gave him a sufficient opportunity of exercising his right under clause 5 of Art. 22 of the Constitution. With regard to ground No. 2, the appellant has urged the following points. Ground No. 2 companymunicated to the appellant is in these terms That you addressed a Press Conference at New Delhi on the 18th day of February, 1956, which was attended by a large body of Press Correspondents of foreign companyntries and that you made a speech companyy of companytents of which is hereto annexed companytaining various false statements about the companyditions of the people of Kashmir. The companybined effect of these statements is prejudicial to the security of India and to the relations of India with foreign powers. Extracts of such statements are given below then follow the extracts . It is argued 1 that detention on this ground is more punitive than preventive 2 that it is number relevant to the objects for which the appellant has been detained, namely, the security of India and her relations with foreign powers and 3 that there are verbal inaccuracies in reciting the ground, with particular reference to what happened at the Press Conference on February 18, 1956. We have companysidered each one of these arguments are are of the view that number one of them has any substance. Firstly, the ground numberdoubt relates to what happened on February 18, 1956 that does number, however, mean that the detention of the appellant is punitive in character. What the appellant is likely to do in future must, to a large extent, be inferred from his past companyduct. Secondly, we think that the ground has a rational companynection with the objects which the appellant has to be prevented from attaining. The objects of the appellants detention are to prevent him from acting in a manner prejudicial to 1 the security of India and 2 her relations with foreign powers. Both these objects, we think, companye within the ground in question. Thirdly, the verbal inaccuracies relied on by the appellant are all so inconsequential in nature that we do number think it necessary to state them in detail. By way of an example, it may be stated that in the extract enclosed with the ground, there is a statement to this effect It would be numberexaggeration to state that were a plebiscite to be held there today, over 90 of Kashmiris would vote against India etc. In his actual statement, however, the appellant said It would number be an exaggeration to state that were a plebiscite to be held there today, over 90 of Kashmiris would vote against India etc. The only difference between the two is that instead of the word number, the word numberhas been used in the extract otherwise, there is numberdifference between the two statements. Such verbal differences are number inaccuracies at all, and we are unable to accept the companytention of the appellant that the detaining authority did number apply its mind to the grounds companymunicated to him. Lastly, the appellant has raised the question of mala fides. This question has been companysidered at great length by the learned Judge of the Punjab High Court who dealt with the petition of appellant. The appellant referred in his affidavit to some of his activities from 1954 onwards and to certain events which happened between 1954 and 1956. He also referred to certain statements alleged to have been made by the Prime Minister and the Home Minister, and he averred that both of them were annoyed with him for his activities and therefore the order of detention was number bona fide. We are unable to accept this companytention. We agree with the learned Judge of the High Court that the activities of the appellant and the events of 1954 to 1956 referred to by the appellant, do number in any way show that the order of detention made against the appellant was made for any ulterior purpose or for purposes other than those mentioned in the detention order. On the question of mala fides, it is number a relevant companysideration whether the activities of the appellant were liked or disliked by the authorities companycerned. The only relevant companysideration is if the order of detention was made for ulterior purposes or purposes other than those mentioned in the detention order. On the materials placed before us, we unhesitatingly hold that numbermala fides have been established. These are our reasons for the order which we passed on May 24, 1957, dismissing the appeal. Sarkar J. This appeal arises out of an application for the issue of a writ of habeas companypus. In my view the appeal can be disposed of on one ground, and in this judgment I propose to deal with that ground alone. On July 21, 1956, the appellant was taken into custody under an order of detention passed against him by the Government of India under the Preventive Detention Act, 1950 Act IV of 1950 . On July 24, 1956, the appellant was served with the grounds on which the order of detention had been passed as required by the Act. The appellant thereafter made a representation against the order which was companysidered by the Advisory Board, companystituted under the Act. On August 22, the appellant was served with another order made by the Government of India wherein it was stated that the Advisory Board had reported that there was in its opinion, sufficient cause for the detention of the appellant. This order further stated that in view of the report of the Advisory Board the Government of India companyfirmed the detention order earlier made against the appellant and that the appellant should companytinue in detention for a period of 12 months from the date of his detention. The appellant challenged the legality of these orders of detention and moved the High Court of Punjab for the issue of an appropriate writ for his release. The petition was dismissed by the High Court. Hence this appeal. The petitioner challenges the validity of the orders of detention on the ground that the provision of the Preventive Detention Act, 1950, under which they were made is ultra vires the Constitution. I have companye to the companyclusion that this objection to the Act is sound and that is why I do number find it necessary to discuss the other companytentions raised by the appellant. The companytention of the petitioner is based on Art. 22 4 a of the Constitution. The relevant portion of the article is set out below No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless - a an Advisory Board companysisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention Provided that numberhing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause b of clause 7 or b such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses a and b of clause 7 . Parliament may by law prescribe - a the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause a of clause 4 b the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention The position, therefore, is that unless Parliament by law otherwise prescribes, the provisions of clause 4 a of Art. 22 have to be companyplied with by any law providing for preventive detention. Parliament has passed numberlaw prescribing otherwise. The Preventive Detention Act, 1950, has, therefore, in order to be companystitutional to satisfy Art. 22 4 a . The appellants companytention is that it does number do this. Though the words used are somewhat obscure, it is fairly clear, as was accepted at the Bar, that the required provision for the report of the Advisory Board has to be made in the law authorising preventive detention and it is number by the force of Art. 22 4 a itself that that report has to be obtained. The present Act authorises a maximum period of detention of 12 months from the date of detention. It is therefore a law providing for preventive detention and it authorises the detention of a person for a longer period than three months. It must hence companytain provisions satisfying sub-clause a of clause 4 of Art. 22 if it is intended to detain a person under it for a period longer than three months. It has to provide that if under it detention for a period longer than three months is to be ordered then an Advisory Board, companystituted as specified, must report that there is in its opinion sufficient cause for such detention. So much is number in dispute. The difficulty is caused by the words such detention. The appellant companytends that they mean detention for a period longer than three months and therefore an Act authorising preventive detention for more than three months has to provide that the Advisory Board must report that there is sufficient cause for detention for a period longer than three months. The Act in this case does make provisions for the companystitution of the Advisory Board and for submitting all cases of detention irrespective of their periods of detention to it for its opinion as to whether or number there is sufficient cause for detention, but it does number provide that where it is intended to detain a person for a period longer than three months then the Advisory Board must report that there was sufficient cause for detention for a period longer than three months. The provision for the opinion of the Advisory Board is companytained in s. 10 2 of the Act which is in the following terms S. 10 2 . - The report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or number there is sufficient cause for the detention of the person companycerned. If therefore the appellant is right in his companytention that the words such detention mean detention for a longer period than three months then the provisions of the Act authorising detention for more than three months must be held to be ultra vires. The question is, what do these words mean ? As a matter of pure companystruction of the language used in sub-clause a it seems to me that the words such detention must mean detention for a longer period than three months. The word such means, of the kind of degree already described. Of the meanings of the word such given in the Oxford Dictionary this I find to be the only one appropriate in the present companytext. Learned companynsel for the respondent did number suggest any other meaning. Now what is the kind or degree of detention that is earlier described in the clause ? The only kind that I find is detention for a longer period than three months. That being so, I feel companypelled to accept the appellants companytention. The learned Solicitor-General opposing the appeal companytended that the words such detention were capable of two meanings, namely, detention simpliciter and detention for a period longer than three months. He advanced certain reasons why of the two possible companystructions the first one should be accepted. I will companye to the reasons later. Before doing so I wish to state that I am unable to agree that the words such detention are capable of two meanings. Clause 4 companytemplates a law of preventive detention but does number authorise such law. Such a law is within the legislative companypetence of the Parliament and the State legislatures See Art. 246 of the Constitution, item 9 of list 1 and item 3 of list III in the Seventh Schedule to the Constitution. Having companytemplated such a law, what clause 4 proceeds to do is to lay down that, that law shall number authorise the detention of a person for a longer period than three months unless the Advisory Board has reported that there is in its opinion sufficient cause for such detention. It only imposes a limitation on the power to pass laws authorising preventive detention. This is what Das J. said in A.K. Gopalan v. The State of Madras 1950 S.C.R. 88. He there said p. 324 , article 21 and 22 have put a limit on the power of the State given under Art. 246 read with the legislative lists. Therefore the only object that clause 4 purports to deal with is detention for a period longer than three months under a law of preventive detention the existence of which it assumes. Hence the words such detention must necessarily refer to detention for a period longer than three months. There is numberhing else to which it can refer. Preventive detention without reference to the period of it is number in companytemplation of clause 4 at all. A law for preventive detention is mentioned. The words such detention cannot possibly refer to that law. That law may, numberdoubt, provide for detention for a shorter period but such shorter detention is number mentioned in the clause number really in its companytemplation at all. So numberquestion of the words such detention referring to the shorter detention arises. But suppose the learned Solicitor-General was right in his companytention that the words, in the companytext they are used, are capable of referring both to preventive detention simpliciter and to preventive detention for a period longer than three months, are there reasons for preferring the first of the two alternative companystructions ? I am unable to find any. The learned Solicitor-General said that if the words were referable only to a detention for a period longer than three months then people detained for a shorter period would be deprived of the safeguard of the opinion of the Advisory Board and lose the chance of being set free if it expressed the view that there was numbersufficient cause for detention. That numberdoubt would be so. But I find numberhing in the language of clause 4 to show that such a safeguard was intended. If the language does number support such an intention, then of companyrse this argument must fail, however much the companyrt may like the safeguard to be provided in all cases of detention. If it was the intention of the Constitution to provide such a safeguard it would number have required that the report of the Advisory Board should be made before the expiry of the three months. That is what Fazl Ali, J., said in Gopalans case 1950 S.C.R. 88, at page 171 Under Art. 22 4 a , the Advisory Board has to submit its report before the expiry of three months and may therefore do so on the eighty-ninth day. It would be somewhat farcical to provide, that after a man has been detained for eighty-nine days, an advisory board is to say whether his initial detention was justified. As the Constitution companyld number have companytemplated the situation mentioned by Fazl Ali, J., it companyld number have intended that all cases of detention irrespective of their periods must also be placed before the Advisory Board. It follows that it did number mean to provide the safeguard referred to by the learned Solicitor-General. In fact, all the other learned Judges who heard Gopalans case 1950 S.C.R. 88, excepting Patanjali Sastri, J., expressed the same view. I set out below what they said Kania, C.J., page 118 of the Report Reading article 22 clauses 4 and 7 together it appears to be implied that preventive detention for less than three months, without an advisory board, is permitted under the Chapter on Fundamental Rights, provided such legislation is within the legislative companypetence of the Parliament or the State Legislature, as the case may be. Mahajan, J., p. 228 If the intention of the Constitution was that a law made on the subject of preventive detention had to be tested on the touchstone of reasonableness, then it would number have troubled itself by expressly making provision in article 22 about the precise scope of the limitation subject to which such a law companyld be made and by mentioning the procedure that the law dealing with that subject had to provide. Some of the provisions of article 22 would then have been redundant, for instance, the provision that numberdetention can last longer that three months without the necessity of such detention being examined by an advisory board. Again at p. 237 Clause 4 of article 22 enjoins that numberlaw can provide for preventive detention for a longer period than three months without reference to an advisory board. Mukherjea, J., p. 281 Preventive detention can be provided for by law for reasons companynected with six different matters specified in the relevant items in the legislative lists, and whatever the reasons might be, there is a provision companytained in article 22 4 a which lays down that detention for more than three months companyld number be permitted except with the sanction of the advisory board. Das, J., p. 326 In short, clause 4 of article 22 provides a limitation on the legislative power as to the period of preventive detention. Apart from imposing a limitation on the legislative power, clause 4 also prescribes a procedure of detention for a period longer than three months by providing for an advisory board. The learned Solicitor-General then companytended that Art. 22 dealt both with preventive detention and other kinds of detention. Thus clauses 1 2 dealt with other kinds of detention while clause 4 and the remaining clauses of the article dealt with preventive detention. Clause 3 said that numberhing in clauses 1 and 2 shall apply to a person detained under any law providing for preventive detention. The learned Solicitor-General companytended that the words such detention in clause 4 were intended to refer to preventive detention without reference to its duration as distinguished from the other kinds of detention referred to in clauses 1 and 2 . He sought to reinforce his argument by companytending that preventive detention for a period longer than three months was number a separate kind of preventive detention and therefore the words such detention referred to the only kind of preventive detention mentioned in the article, namely, preventive detention simpliciter and without any reference to the period of detention. I am again unable to agree. It is true that the detention companytemplated in the words such detention is preventive detention. Clauses 4 to 7 of the article deal with preventive detention alone and with numberother kind of detention. Therefore, in these clauses there was numbernecessity of distinguishing preventive detention as such from other kinds of detention and of using the word such for marking this distinction. So read the words such detention really mean such preventive detention. The question then arises, which preventive detention ? The answer must be, one variety of preventive detention as distinguished from other varieties. It is also true that preventive detention for a period longer that three months is numbere the less preventive detention and is number another kind of detention. At the same time preventive detention for a period longer than three months is number the same thing as preventive detention for a shorter period. It is quite companyceivable that with regard to different periods of detention permissible under a law relating to preventive detention different provisions may be made. Preventive detention certainly interferes with a persons liberty. It is an inroad on his freedom. It may be that the makers of the Constitution having given the legislatures power to enact laws providing for preventive detention interfering with a persons liberty did number think it fit to provide any limitation on such power when such detention was to be for a relatively shorter period but thought it fit to restrict the power in the case of detention for what they companyceived to be a long period. If such was the intention, then the makers of the Constitution would obviously make a distinction between preventive detention for a shorter period and preventive detention for a longer period. To say that there is numberdistinction between these kinds of preventive detention is to assume that the makers of the Constitution never intended to make the distinction. For such an assumption I find numberjustification. Indeed, what I have read from the judgment of this Court in Gopalans case, would show that the distinction between preventive detention simpliciter and preventive detention for a period longer than three months was in the mind of the makers of the Constitution, for it is there said that numberreference to the Advisory Board is companytemplated by the Constitution excepting in a case of detention for a period longer than three months. The present argument of the learned Solicitor-General is on the basis that one of the possible companystructions of the words such detention is detention for a period longer than three months. That being so, and the word such meaning in the ordinary English language, of the kind already described, even if two kinds of detention, namely, preventive detention simpliciter and detention for other reasons, have been earlier mentioned, the kind mentioned nearest to the word such must be the kind intended by it. Therefore again the words such detention must be taken as referring to detention for a period longer than three months. Indeed clause 4 and the other clauses have numberhing to do with other kinds of detention than preventive detention. The word such cannot therefore seek to make a distinction from a thing occurring in a wholly separate provision of the article, namely, clauses 1 and 2 . That being so, I am unable to agree that the words such detention refer to preventive detention simpliciter. I number turn to another question that arose. It was said that Art. 22 4 a applies only to a law which authorises detention for more than three months that it is such a law alone which must provide for the opinion of the Advisory Board being obtained. It was companytended that, therefore, whenever a law authorising preventive detention provides for a reference to the Advisory Board, it necessarily provides for a resort as to whether there is sufficient cause for a detention for a period longer than three months, and that being so, numbermatter whether any provision had been made that the Advisory Board must state whether in its opinion sufficient cause existed for a detention for a longer period or number, the report, when made, must necessarily be taken to have expressed such an opinion and the article therefore must be deemed have been companyplied with. This argument, of companyrse, assumes that the words such detention mean detention for a period longer than three months. It assumes that the article requires that where the law of preventive detention authorises a detention for a longer period it is necessary to obtain the opinion of the Advisory Board that there is sufficient cause for detention for such period. Now there is numberhing in the article to prevent an Act authorising preventive detention providing for the opinion of the Advisory Board being obtained as to there being sufficient cause for the detention in any case of detention. Such a provision in a law of preventive detention would be perfectly legal. The present Act in fact companytains such a provision. Therefore, it cannot be said that whenever a law provides for an opinion of the Advisory Board being obtained as to the sufficiency of the cause for detention, the opinion in view of Art. 22 4 a necessarily is as to the sufficiency of the cause of detention for a period longer than three months. Besides, if, as the present argument assumes, it is obligatory in a law authorising preventive detention for a period longer than three months to provide for a report of the Advisory Board stating expressly its opinion as to the sufficiency of the cause for the detention for the period mentioned. I am unable to appreciate that such an obligation is satisfied by number making the required provision but by showing that by necessary implication the required opinion is deemed to have been given, even though in fact it may number have been given. The question is number what the report is to be deemed to have stated number even what it has in fact stated, but what the statute should provide. If the statute has number made the obligatory provision it must be held to be bad. It would be a strange argument to say that it must be good because though it did number companytain the required provision it must in view of the Constitution be deemed to companytain it. It was then said that as it is number for the Advisory Board to decide the period of detention to be ordered there can be numberpoint in providing that its opinion, whether there were sufficient cause for detention for a period longer than three months or number, should be obtained. It seems to me that whether there is any point in obtaining such opinion or number it is wholly irrelevant to enquire. If the language of the Constitution requires such opinion to be obtained, it has to be obtained. I have stated that the language indubitably requires such opinion to be obtained. The language cannot have a different meaning because, otherwise, the provision would be without any point at all. Furthermore, I am unable to see why if the Government fixes the period of detention, it is unnecessary where the period is to exceed three months to provide for the opinion of an independent body being obtained as to whether there is sufficient cause for detention for that period. In my view it is eminently reasonable to make such a provision. When a persons liberty is to be curtailed for a longer period, a safeguard may be companysidered necessary which it may number be when the curtailment companytemplated is for a companyparatively shorter period. I will repeat that the reasonableness of such a provision is implicit in what I have read from the judgment in Gopalans case 1950 S.C.R. 88. It is said there that it is only in the case of detention for a period longer than three months that the Constitution requires a provision that the Advisory Boards opinion should be obtained. This view is clearly brought out by Fazl Ali, J., when he said in that case at page 171 Prima facie, it is a serious matter to detain a person for a long period more than three months without any enquiry or trial. But article 22 4 a provides that such detention may be ordered on the report of the advisory board. Since the report must be directly companynected with the object for which it is required, the safeguard provided by the article, viz., calling for a report from the advisory board, loses its value, if the advisory board is number to apply its mind to the vital question before the Government, namely, whether prolonged detention detention for more than three months is justified or number. I have so long discussed the question whether the words such detention mean preventive detention simpliciter or preventive detention for a period longer than three months as a question of companystruction without reference to the authorities. In fact, there is numberconclusive authority on the point, but some have been referred to. There I number proceed to companysider. The first case referred to is Gopalans case 1950 S.C.R. 88. That was also a case companycerned with the issue of a writ of habeas companypus, and it turned on the very Act that is before the Court number, as it stood in 1950. At the date the order for detention in that case was made the Act provided that in certain class of cases a person might be detained for a period longer than three months without obtaining the opinion of the Advisory Board in accordance with the provisions of Art. 22 4 a . Such a provision is sanctioned by clause 7 a of that article. The order for detention made in that case was of a kind where reference to the Advisory Board was number obligatory. That being so, it was number necessary for the companyrt in that case to decide the precise meaning of the words such detention. None the less, however, three of the learned judges indicated their views on the question and the other three do number seem to have dealt with it. Kania, C.J., expressed the opinion that the words such detention meant detention beyond the period of three months. Referring to the proviso to sub-clause 4 a , he stated p. 117 The proviso to this clause further enjoins that even though the advisory board may be of the opinion that there was sufficient cause for such detention, i.e., detention beyond the period of three months, still the detention is number to be permitted beyond the maximum period, if any, prescribed by Parliament under article 22 7 b . The learned Chief Justice therefore was of the view that under Art. 22 4 a the Advisory Board had to be of the opinion that there was sufficient cause for detention beyond the period of three months. Mr. Justice Fazl Ali expressed himself more clearly on the subject and said pp. 170-171 In companynection with the first point, the question arises as to the exact meaning of the words such detention occurring in the end of clause 4 a . Two alternative interpretations were put forward 1 such detention mans preventive detention 2 such detention means detention for a period longer than three months. If the first interpretation is companyrect then the function of the advisory board would be to go into the merits of the case of each person and simply report whether there was sufficient cause for his detention. According to the other interpretation, the function of the advisory board will to be report to the Government whether there is sufficient cause for the person being detained for more than three months. On the whole, I am inclined to agreed with the second interpretation. Prima facie, it is a serious matter to detain a person for a longer period more than three months without any enquiry or trial. But article 22 4 a provides that such detention may be ordered on the report of the advisory board. Since the report must be directly companynected with the object for which it is required, the safeguard provided by the article, viz., calling for a report from the advisory board, loses its value, if the advisory board is number to apply its mind to the vital question before the government, namely whether prolonged detention detention for more than three months is justified or number. Under article 22 4 a , the advisory board has to submit its report before the expiry of three months and may therefore do so on the eighty-ninth day. It would be somewhat farcical to provide, that after a man has been detained for eighty-nine days, an advisory board is to say whether his initial detention was justified. On the other hand, the determination of the question whether prolonged detention detention for more than three months is justified must necessarily involve the determination of the question whether the detention was justified at all, and such an interpretation only can give real meaning and effectiveness to the provision. The provision being in the nature of a protection or safeguard, I must naturally lean towards the interpretation which is favorable to the subject and which is also in accord with the object in view. Patanjali Sastri, J., preferred the other view but he realised that the view taken by Fazl Ali, J., was also a possible view. He expressed himself in these words on the subject at page 210 I am inclined to think that the words such detention in sub-clause a refer back to the preventive detention mentioned in clause 4 and number to detention for a longer period than three months. An advisory board, companyposed as it has to be of Judges or lawyers, would hardly be in a position to judge how long a person under preventive detention, say, for reasons companynected with defence, should be detained. That must be a matter for the executive authorities, the Department of Defence, to determine, as they along are responsible for the defence of the companyntry and have the necessary data for taking a decision on the point. All that an advisory board can reasonable be asked to do, as a safeguard against the misuse of the power, is to judge whether the detention is justified and number arbitrary or mala fide. The fact that the advisory board is required to make its report before the expiry of three months and so companyld submit it only a day or two earlier cannot legitimately lead to an inference that the board was solely companycerned with the issue whether or number the detention should companytinue beyond that period. Before any such tribunal companyld send in its report a reasonable time must elapse, as the grounds have to be companymunicated to the persons detained, he has to make his representation to the detaining authority which has got to be placed before the board through the appropriate departmental channel. Each of these steps may, in the companyrse of official routine, take some time, and three months period might well have been thought a reasonable period to allow before the board companyld be required to submit its report. Assuming, however, that the words such detention had reference to the period of detention, there is numberapparent reason for companyfining the enquiry by the advisory board to the sole issue of duration beyond three months without reference to the question as to whether the detention was justified or number. Indeed, it is difficult to companyceive how a tribunal companyld fairly judge whether a person should be detained for more than three months without at the same time companysidering whether there was sufficient cause for the detention at all. I am of opinion that the advisory board referred to in clause 4 is the machinery devised by the Constitution for reviewing orders for preventive detention in certain cases on a companysideration of the representations made by the persons detained. This is the view on which Parliament has proceeded in enacting the impugned Act as will be seen from sections 9 and 10 thereof, and I think it is the companyrect view. It follows that the petitioner cannot claim to have his case judged by any other impartial tribunal by virtue of article 21 or otherwise. For the reasons earlier stated I prefer to accept the view expressed by Mr. Justice Fazl Ali. The next case referred to is Makhan Singh Tarsikka v. The State of Punjab 1952 S.C.R. 368. This was also a case for the issue of a writ of habeas companypus for the release of a person detained under the same Act as it stood in July 1951. In this case the first order for detention, that is to say the order made before the reference to the Advisory Board itself fixed the period of detention. It was held that was illegal because the Act made it plain that it is only after the Advisory Board to which the case has been referred reports that the detention is justified, the Government should determine what the period of detention should be and number before. The fixing of the period of detention in the initial order in the present case was, therefore, companytrary to the scheme of the Act and cannot be supported. On this ground the petition for the issue of a writ was allowed. This case was obviously number companycerned with Art. 22 4 a and does number in any manner decide the question before me. I am, therefore, unable to find any assistance from it. Lastly, reference was made to Dattatreya Moreshwar Pangarkar v. The State of Bombay 1952 S.C.R. 612. That again was companycerned with an application for the issue of a writ of habeas companypus and also turned on the present Preventive Detention Act. There, after the initial order for detention which did number mention any period, the case had been referred to the Advisory Board which reported that there was sufficient cause for detention and then the Government issued an order stating that it companyfirmed the detention order issued against the detenu. The question was whether this companyfirmatory order was in terms of s. 11 1 a of the same Act as in this case as it stood in 1952. That section provided that where the advisory board had reported that there was sufficient cause for detention, the Government might companytinue the detention for such period as it thought fit. It was companytended that the section required the period of detention to be mentioned in the companyfirmatory order and as the companyfirmatory order did number justify the period it was bad and did number justify the detention. It was held that such omission did number invalidate the order. Again it will be seen that this case was number companycerned with Art. 22 4 a . We were referred to certain observations of Mr. Justice Mukherjea in this case in support of the proposition that the words such detention in Art. 22 4 a meant detention simpliciter. These observations are set out below pp. 626-27 It is number settled by a pronouncement of this companyrt that number only it is number necessary for the detaining authority to mention the period of detention when passing the original order under section 3 1 of the Preventive Detention Act, but that the order would be bad and illegal if any period is specified, as it might prejudice the case of the detenu when it goes up for companysideration before the Advisory Board. The Advisory Board again has got to express its opinion only on the point as to whether there is sufficient cause for detention of the person companycerned. It is neither called upon number is it companypetent to say anything regarding the period for which such person should be detained. Once the Advisory Board expresses its view that there is sufficient cause for detention at the date when it makes its report, what action is to be taken subsequently is left entirely to the appropriate Government and it can under section 11 1 of the Act companyfirm the detention order and companytinue the detention of the person companycerned for such period as it thinks fit. It was sought to be argued that Mukherjea, J., intended to say that all that the Advisory Board was required to do was to express its opinion on the question of justification of the detention simpliciter. This may be so, but Mr. Justice Mukherjea was companystruing the Preventive Detention Act which admittedly made that provision. He was number saying that Art. 22 4 a also said the same thing. Indeed what I have read earlier from his judgment in Gopalans case 1950 S.C.R. 88, would show that his view about Art. 22 4 a was otherwise. Again the learned Judge was number companycerned with the question whether the relevant provision of the Preventive Detention Act was ultra vires the Constitution. Furthermore, for the reasons earlier stated, the fact that the Government decides the term of detention does number indicate that it is number intended that when detention for a period longer than three months is companytemplated, it is number necessary to obtain the opinion of Advisory Board as to whether there was sufficient cause for detention for the period. Reference was also made to the following portion of the judgment of Mahajan, J. 1952 S.C.R. 612, occurring at p. 637 of the report Under the Constitution, the detention of a person under any law providing for preventive detention cannot be for a period of more than three months unless the Advisory Board is of the opinion that there is sufficient cause for the detention of the person companycerned. It was suggested that the learned Judge indicated that all that was necessary was for the law to provide for an opinion of the Advisory Board as to the justification of the detention itself irrespective of whether it was to be for a period longer than three months. It is clear that here Mahajan, J., was number companysidering the meaning of the words such detention. He was number companycerned with deciding whether these words meant detention simpliciter or detention for a period longer than three months. His observations in Gopalans case 1950 S.C.R. 88, that I have earlier set out, would in my view indicate that the Advisory Board is required to give an opinion as to whether detention for a longer period than three months is justified or number. It cannot therefore be said that Mahajan, J., held the view that the words such detention in Art. 22 4 a mean simply preventive detention. I therefore companye to the companyclusion that there is numberhing either in Makhan Singhs case 1952 S.C.R. 368, or Dattatreya Moreshwar Pangarkars case 1952 S.C.R.

ANIL R. DAVE, J. Leave granted in SLP C No.19057/2009. The dispute raised in these appeals pertains to the dispute on liability to pay tax. The appellant claims that since they have been included in the area carved out of the Gram Panchayat, under the Maharashtra Regional and Town Planning Act, 1966, they are number liable to pay the tax to the Gram Panchayat companycerned. When these appeals were heard before us on 16th April, 2015, this Court passed the following order The short question which is involved in these appeals is whether the land and buildings in question are located within the local limits of three Gram Panchayats, namely, Pagote, Bhendkhal and Kalamboli, in District Raigad. It is the case of Respondent No.1-Panchayats in each of the appeals is that the said properties are situated within their limits and therefore, they are entitled to companylect tax on the properties situated therein. Whereas, it is the case of the appellants that the land has already vested in CIDCO and therefore, the Gram Panchayats do number have any right to companylect property tax. Looking at the facts of the case, the Principal Secretary, Urban Development Department, Government of Maharashtra, is directed to state whether the land and properties in question are within the limits of the afore-stated three Gram Panchayats. He shall also place on record companyies of relevant Notifications and maps giving details about revenue limits of the afore-stated three Gram Panchayats. List the matters on 22nd July, 2015, at 2.p.m. as Part-heard. A companyy of the order be given to the Standing Counsel for the State of Maharashtra by dasti and a companyy be also forwarded to the Principal Secretary, Urban Development Department, Government of Maharashtra by Speed Post. Pursuant to the order referred to above, the State Government had filed an affidavit in each of these appeals. Paragraph 3 of the affidavits dated 20th August, 2015 read as under A.No.2866/2006 I say and submit that, from the information and report companylected, the property mentioned in the aforesaid Civil Appeal which is leased to the Appellant is situated at Pagote hereinafter referred to as the said property . I say that, said property is within the limit of Grampanchayat Pagote, District Raigad. The map giving details regarding the location of the said property in the companyresponding revenue limit of said Grampanchayat is herein annexed and marked as Annexure P/1. The relevant numberification dated 1st February, 1995 of the said revenue village Patoge is annexed herewith and marked as Annexre P/2. A.No.4368/2006 I say and submit that, from the information and report companylected, the property mentioned in the aforesaid Civil Appeal which is leased to the Appellant is situated at Bhendkal hereinafter referred to as the said property . I say that, said property is within the limit of Grampanchayat Bhendkal, District Raigad. The map giving details regarding the location of the said property in the companyresponding revenue limit of said Grampanchayat is herein annexed and marked as Annexure P/1. The relevant numberification dated 1st February, 1995 of the said revenue village is annexed herewith and marked as Annexre P/2. A.No.5151/2007 I say and submit that, from the information and report companylected, the property mentioned in the aforesaid Civil Appeal which is leased to the Appellant is situated at Kalamboli hereinafter referred to as the said property . I say that, said property is within the limit of Grampanchayat Kalamboli, District Raigad. The map giving details regarding the location of the said property in the companyresponding revenue limit of said Grampanchayat is herein annexed and marked as Annexure P/1. The relevant numberification dated 1st February, 1995 of the said revenue village, Kalamboli, is annexed herewith and marked as Annexre P/2. In view of the specific stand thus taken by the State Government that the area companyes under the Gram Panchayat companycerned, we find numbermerit in the appeals.

This appeal is brought by special leave from the judgment of the Allahabad High Court dated November 23, 1965 in First Appeal No. 208 of 1958. The appellant is a limited liability companypany incorporated under the English Companies Act with its registered office at Lincoln, England. It carries on business in the manufacture and sale of diesel internal companybustion engines and their parts and accessories. Ruston Hornsby India Ltd., a companypany registered in India under the Companies Act, 1956 is a subsidiary of the appellant. The respondent is a firm carrying on business in the manufacture and sale of diesel internal companybustion engines and their parts. The appellant was a registered proprietor of the registered trade mark Ruston being registration No. 5120 in Class 7 in respect of internal companybustion engines. Ruston and Hornsby India Ltd. is the registered user of the said trade mark and manufactures in India and sells in India internal companybustion engines under the trade mark RUSTON. Sometime in June, 1955 the appellant came to learn that the respondent was manufacturing and selling diesel internal companybustion engines under the trade mark RUSTAM. On July 8, 1955 the appellant wrote through its attorneys a letter to the respondent and called upon it to desist from using the trade mark RUSTAM on its engines as it was an infringement of the registered trade mark RUSTON. The defendant replied that RUSTAM was number an infringement of RUSTON as the words RUSTAM INDIA was used. On February 17. 1956 the appellant instituted a suit praying for a permanent injunction restraining the respondent and its agents from infringing the trade mark RUSTON. On January 3, 1958 the Additional District Judge, Meerut, dismissed the suit holding that there was numbervisual or phonetic similarity between RUSTON and RUSTAM. The appellant took the matter in appeal in the Allahabad High Court. By its judgment dated November 23, 1965 the High Court held that the use of the word RUSTAM by the respondent companystituted infringement of the appellants trade mark RUSTON and the respondent should be prohibited from using the trade mark RUSTAM. But the High Court proceeded to hold that the use of the words RUSTAM INDIA was number an infringement because the plaintiffs engines were manufactured in England and the defendants engines were manufactured in India. The suffix India would be a sufficient warning that the engine sold was number a RUSTON engine manufactured in England and the respondent may be permitted to use the companybination RUSTAM INDIA. Section 21 of the Trade Marks Act, 1940 states Subject to the provisions of Section 22, 25 and 26 the registration of a person in the register as proprietor of a trade mark in respect of any goods shall, give to that person the exclusive right to the use of the Trade mark in relation to those goods and, without prejudice to the generality of the foregoing provision, that right shall be deemed to be infringed by any person who, number being the proprietor of the trade mark or a registered user thereof using by way of the permitted use, uses a mark identical with it or so nearly resembling it as to be likely to deceive or cause companyfusion, in the companyrse of trade, in relation to any goods in respect of which it is registered, and in such manner as to render the use of the mark likely to be taken either- a as being used as a trade mark or b to import a reference to some person having the right either as a proprietor or as registered user to use the trade mark or to goods with which such a person as aforesaid is companynected in the companyrse of trade. The distinction between an infringement action and a passing off action is important. Apart from the question as to the nature of trade mark the issue in an infringement action is quite different from the issue in a passing off action. In a passing off action the issue is as follows Is the defendant selling goods so marked as to be designed or calculated to lead purchasers to believe that they are the plantiffs goods ? But in an infringement action the issue is as follows Is the defendant using a mark which is the same as or which is a companyourable imitation of the plaintiffs registered trade mark ? It very often happens that although the defendant is number using the trade mark of the plaintiff, the get up of the defendants goods may be so much like the plaintiffs that a clear case of passing off would be proved. It is on the companytrary companyceivable that although the defendant may be using the plaintiffs mark the get up of the defendants goods may be so different from the get up of the plain-tiffs goods and the prices also may be so different that there would be numberprobability of deception of the public. Nevertheless, in an action on the trade mark, that is to say, in an infringement action, an injunction would issue as soon as it is proved that the-defendant is improperly using the plaintiffs mark. The action for infringement is a statutory right. It is dependent upon the validity of the registration and subject to other restrictions laid down in Sections 30, 34 and 35 of the Act. On the other hand the gist of a passing off action is that A is number entitled to represent his goods as the goods of B but it is number necessary for to prove that A did this knowingly or with any intent to deceive. It is enough that the get-up of Bs goods has become distinctive of them and that there is a probability of companyfusion between them and the goods of A. No case of actual deception number any actual damage need be proved. At companymon law the action was number maintainable unless there had been fraud on As part. In equity, however, Lord Cottenham L.C. in Millington v. Fox, 3 My Cr. 338 held that it was immaterial whether the defendant had been fraudulent or number in using the plaintiffs trade mark and granted an injunction accordingly. The companymon law companyrts, however, adhered to their view that fraud was necessary until the Judicature Acts, by fusing law and equity, gave the equitable rule the victory over the companymon law rule. The two actions, however, are closely similar in some respects. As was observed by the Master of the Rolls in Saville Perfumery Ltd. v. June Perfect Ltd. 58 R.P.C. 147 at 161. The Statute law relating to infringement of trade marks is based on the same fundamental idea as the law relating to passing-off. But it differs from that law in two particulars, namely 1 it is companycerned only with one method of passing-off, namely, the use of a trade mark, and 2 the statutory protection is absolute in the sense that once a mark is shown to offend, the user of it cannot escape by showing that by something outside the actual mark itself he has distinguished his goods from those of the registered proprietor. Accordingly, in companysidering the question of infringement the Courts have held, and it is number expressly provided by the Trade Marks Act, 1938, Section 4, that infringement takes place number merely by exact imitation but by the use of a mark so nearly resembling the registered mark as to be likely to deceive. In an action for infringement where the defendants trade mark is identical with the plaintiffs mark, the Court will number enquire whether the infringement is such as is likely to deceive or cause companyfusion. But where the alleged infringement companysists of using number the exact mark on the Register, but something similar to it, the test of infringement is the same as in an action for passing off. In other words, the test as to likelihood of companyfusion or deception arising from similarity of marks is the same both in infringement and passing off actions. In the present case the High Court has found that there is a deceptive resemblance between the word RUSTON and the word RUSTAM and therefore the use of the bare word RUSTAM companystituted infringement of the plaintiffs trade mark RUSTON. The respondent has number brought an appeal against the judgment of the High Court on this point and it is, therefore, number open to him to challenge that finding. If the respondents trade mark is deceptively similar o that of the appellant the fact that the word INDIA is added to the respondents trade mark is of numberconsequence and the appellant is entitled to succeed in its action for infringement of its trade mark. We are accordingly of the opinion that this appeal should be allowed and the appellant should be granted a decree restraining the respondents by a permanent injunction from infringing the plaintiffs trade mark RUSTON and from using it in companynection with the engines machinery and accessories manufactured and sold by it under the trade mark of RUSTAM INDIA. The appellant is also entitled to an injunction restraining the respondent and its agents from selling or advertising for sale of engines, machinery or accessories under the name of RUSTAM or RUSTAM INDIA. The appellant is also granted a decree for numberinal damages to the extent of Rs. 100/-.

HEMANT GUPTA, J. The present appeals are directed against a companymon order passed by the High Court of Judicature for the States of Telangana and Andhra Pradesh at Hyderabad on 12 th February, 2016 whereby the writ petitions filed by the State of Telangana were allowed. Civil Appeal No. 7477 of 2019 Ramesh Parsram Malani Ors. v. The State of Telangana Ors. arising out of the said order stands dismissed by this Court on 22 nd October, 2019 wherein it has been held that the Central Government has transferred land to the State Government and that the State can allot land for settlement of displaced persons. The appellants claim themselves to be pre-partition tenants on the land situated in Village Poppalguda, District Ranga Reddy. The grievance of the appellants is that their right to companytinue in possession has been put in jeopardy when the State issued an auction numberice on 25th April, 2016. This Court in its judgment dated 22nd October, 2019 has number examined the claim of the alleged pre-partition tenants. This Court in Ramesh Parsram Malanis case set aside the finding of the High Court wherein it was held that transfer of land to the State Government takes such transferred land out of companypensation pool. The observations of this Court in the following para are in the companytext of the finding recorded by the High Court, which reads as under However, we are unable to agree with the High Court that transfer of land to the State Government takes such transferred land out of companypensation pool. The land transferred to the State Government companytinues to be part of companypensation pool but it is required to be disposed of by the Officers of the State who have been companyferred the powers of the Managing Officer or of the Settlement Commissioner for the settlement of the displaced persons alone. It is only after the displaced persons are settled, the State Government may utilize the land for other purposes. In Civil Appeals arising out of Special Leave Petition Civil Nos. 23613-23614 of 2016, the order of the High Court in Writ Petition Nos. 29274 of 2014 and 29436 of 2014 is subject matter of challenge. Before the High Court, the appellants have challenged the allotment of land to Ramesh Parsram Malani the appellant in Civil Appeal No. 7477 of 2019 and also claimed Patta being prepartition tenants. The appellants have claimed, inter alia, the following relief direct the respondents No. 1 to 5 to grant patta rights in respect of the subject lands admeasuring Ac.18.00 Gts in Sy. No. 301, 303, 327, situated at Poppalguda Village, Rajendra Nagar Mandal, Ranga Reddy District, in favour of the petitioners herein. In Civil Appeals arising out of Special Leave Petitions CC Nos. 15550-15551 of 2016 , the appellants have filed miscellaneous application for claiming interim directions number to interfere with the possession and enjoyment of the appellants over the land companyprising in Survey No. 331 of Poppalguda Village, Rajendra Nagar Mandal, Ranga Reddy District. Therefore, the challenge in the writ petitions was number to seek establishment of any right of the appellants being pre-partition tenants. In other appeals, the appellants have number invoked the writ jurisdiction or any other companypetent forum for redressal of their grievances in relation to vesting of land in them.

Ratnavel Pandian, J. The appellant Sukhdev Singh has directed this criminal appeal canvassing the companyrectness and legality of the judgment made in Criminal Appeal No. 578 of 1979 on the file of the High Court of Punjab and Haryana companyfirming the judgment of the trial Court, companyvicting him under Section 302, I.P.C. and sentencing him to undergo imprisonment for life therefor. This appellant along with three others took their trial on the allegation that on 13-9-78 at about 5.00 p.m. in the revenue village Shahpur Kalan, in furtherance of companymon intention murdered Sant Singh alias Lilloo, the deceased herein. On the said allegation, the appellant was charged for an offence under Section 302 whilst the rest of the three accused were charged under Section 302 read with Section 34, I.P.C. According to the prosecution, this appellant and the other three accused who are since acquitted and who are number before us emerged from sugarcane field. The appellant had a gandasa chopper , the accused Atma Singh had a Takua distaff and the remaining two accused had ghops. A lalkara challenge was exhorted by the appellant stating that the deceased should be taught a lesson since he had given some information to the police in companynection with the distillation of illicit liquor. The acquitted accused Atma Singh shouted that the deceased should number be allowed to go alive. On the lalkara of the appellant and at the instigation of accused Atma Singh, the accused Nikka Singh gave two blows with a ghop on different parts of the body of the deceased. Following that the acquitted accused Lakhbir Singh gave two more blows with the similar weapon whilst the acquitted accused Atmasingh gave a blow with a Takua on the right leg. On receipt of these injuries, the injured Sant Singh fell down on the ground. It is stated that it is only thereupon the present appellant is said to have dealt a blow with the gandasa near the right ear. The accused Lakhbir Singh number being satisfied with the blows that he had already dealt with gave one more blow with a ghop on the right arm of the deceased. The injured was removed to Primary Health center, Longowal and he died at 7.40 p.m. The prosecution has examined a number of witnesses of whom PWs 2, 3 and 4 are eye-witnesses to the occurrence. The trial Court for the reasons assigned in its judgment companyvicted the present appellant under Section 302 and Lakhbir Singh for an offence under Section 302 read with Section 34, I.P.C. and sentenced each of them to life imprisonment. On an appeal the High Court acquitted Lakhbir Singh but retained the companyviction of the appellant alone. Mr. R. K. Talwar, learned Counsel appearing for the appellant strenuously companytended that the evidence of PWs 2, 3 and 4 companyld number be accepted and acted upon as numbere of them had informed any of the persons whom they met as to what they had witnessed and that the number-production of the material articles is fatal to the prosecution. We see absolutely numberforce in this argument. Indeed, we are in full agreement with the companyclusion arrived at by the High Court rejecting similar companytentions which were advanced before it. On a careful perusal of the judgment and the evidence on record, we feel companyvinced that Sukhdev Singh took part in perpetrating the attack on the deceased, resulting in the death of the deceased. The next question that arises for our companysideration is what is the nature of the offence that the appellant had companymitted. It is number the case of the prosecution that the appellant attacked the deceased along with other acquitted accused while he was standing. The appellant had given one blow after the deceased fell down. That blow according to the prosecution was sufficient to cause death in the ordinary companyrse of nature. Even though we have accepted the testimony of PWs 2, 3 and 4 as to the participation of the appellant in the crime, we are unable to accept their evidence giving specific overt act to each of the accused, because according to the prosecution the victim was surrounded by all the four accused and each one armed with weapons and attacked him simultaneously. Therefore, it is difficult to fix this fatal injury to the appellant accepting the evidence of the witnesses whose evidence on that aspect has to be companysidered with a pinch of salt. Under these circumstances, we are companystrained to hold that the appellant caused the injury with the knowledge that he was likely by such act to cause death and he is liable to be companyvicted under Section 304, Part II, I.P.C. In the result, we set aside the companyviction under Section 302 and the sentence of imprisonment for life instead companyvict him under Section 304, Part II, I.P.C. Having regard to the special facts and circumstances of the case, we feel that the ends of justice would be met by imposing a sentence of five years.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 719 of 1966. Appeal by special leave from the judgment and order dated February 18, 1965 of the Allahabad High Court in Second Appeal No. 4482 of 1961. P. Sinha, E. C. Agrawala and P. C. Agrawala, for the appellant. C. Misra and H. K. Puri, for respondents Nos. I and 2. The Judgment of the Court was delivered by Bhargava, J. The plaintiffs respondents filed a suit No. 25 of 1957 under section 209 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 No. 1 of 1951 hereinafter referred to as the act , claiming possession of five plots Nos. 729/2, 725/2, 723/2 881/2 and 330/3 on the ground that they were Sirdars of plot No. 330/3 and Bhudars of the remaining plots. The main allegation was that the Chairman of the Gram Samaj of the village, in which the plots were situated, had, for certain reasons, filed an application before the Sub-Divisional Officer under section 212A of the Act or dispossession of the plaintiffs respondents on the ground that these lands were of public utility and they vested in the Gram Samaj. The Sub-Divisional Officer, purporting to act under S. 212A of the Act, passed an order for dispossession of the plaintiffs respondents and granted possession of the lands to the appellant, Gram Sabha, Besahani. That order purporting to be under s. 212A of the Act was challenged as invalid and, on that basis, possession was claimed from the appellant under s. 209 of the Act, alleging that the possession of the appellant was without any legal right. The suit was defended on behalf of the appellant on various grounds as a result of which the following ten issues were framed by the trial Court Issue No. 1 Whether the plaintiffs have right to file the present suit ? 2 Whether plaintiffs are Bhumidars of the plots in suit except plot No. 330/3 ? If so, its effect ? 3 Whether plaintiffs are Sirdars of plot No. 330/3 in suit ? 4 Whether plaintiffs are entitled to recovery of possession over the plots in suit ? 5 Whether the disputed plots are land of public utility and they vest in Gaon Samaj ? If so, its effect ? 8 5 8 6 Whether the suit is barred by s. 23, C.P.C. ? 7Whether the suit is barred by section II, C.P.C. ? 8 Whether the disputed plots are culturable land 7 If so, its effect ? 9 Whether the Court has jurisdiction to the case ? 10 Whether the suit is within time Of these issues, issue No. 2 was triable exclusively by the Civil Court and, companysequently, the Revenue Court, which was seized of the suit, referred this issue to the Civil Court for a finding. This issue No. 2 arose because of two pleadings put forward on behalf of the appellant. One was that the plaintiffs respondents had never acquired Bhumidari rights, and the other was that even if it be held that they did possess any Bhumidari rights, those rights were extinguished when the respondents were dispossessed in pursuance of the order of the Sub-Divisional Officer under s. 212A of the Act and numbersuit within six months was instituted by the respondents in accordance with s. 212A 7 of the Act. The Civil Court, without going into the question whether the respondents had ever acquired Bhumidari rights, decided this issue only on the limited ground that the Bhumidari rights of the respondents had been extinguished as a result of the order under s. 212A of the Act. On receipt of this finding from the Civil Court, the Revenue Court proceeded to record its own finding on issue No. 3 in respect of plot No. 330/3 which was the only plot in which the respondents had claimed rights as Sirdars. On this issue, the Revenue Court went into the first question only raised on behalf of the appellant and held that it was number proved that the respondents had ever been admitted to tenancy of this plot of land, so that they never became Sirdars of this land. On this view, the Revenue Court companysidered it unnecessary to enter into the question whether the Sirdari rights acquired, if any, had been extinguished as a result of the order under s. 212A of the Act. In view of these findings numberdecision was recorded on issues Nos. 5- 10, and the suit was dismissed. That order was upheld by the first appellate Court. The respondents then filed a second appeal in the AllahabadHigh Court. The High Court held that the order purporting to be under s. 212A of the Act was number valid, because it did number direct payment of companypensation as required by s. 212A 6 of the Act, so that the rights as Sirdars and Bhumidars were number lost by the respondents. On this view, the High Court set aside the dismissal of the suit by the lower Courts and decreed the suit of the respondents. The appellant has number companye up to this Court against this judgment by special leave. Two points have been raised in this appeal on behalf of the appellant before us. The first point is that the High Court was 8 5 9 wrong in holding that the order passed under S. 2 212A of the Act by the Sub-Divisional Officer was number valid, and on that basis decreeing the suit which was clearly time-barred, as it was number instituted within six months of the order of ejectment passed by the Sub-Divisional Officer under S. 212A 6 of the Act. This ground raised in the appeal has to be rejected, as we are of the opinion that the High Court was perfectly companyrect in holding that the order of the Sub- Divisional Officer under, S. 212A of the Act was number valid and, companysequently, the provisions of S. 212A 7 of the Act were never attracted to the present dispute. Section 212A 6 7 are as follows - 212A. 6 Where upon the said hearing the Collector is satisfied that the person was admitted as a tenure-holder or -rove-holder of land referred to in Section 212 or being an intermediary brought such land under his own cultivation or planted a grove thereon on or after the eighth day of August, 1946, he shall pass an order for ejectment of the person from the land on payment of such companypensation as may be prescribed. Where an order for ejectment has been passed under this section, the party against whom the order has been passed may institute a suit to establish the right claimed by it but subject to the results of such suit the order passed under sub-section 4 or 6 shall be companyclusive. The language of S. 212A 6 makes it clear that the order under that provision must be an order for ejectment of the person in possession of the land on payment of such companypensation as may be prescribed. This means that an order under that provision must first direct payment of companypensation to the person in possession and the direction for ejectment of the person in possession must be made effective only thereafter, i.e., after the companypensation has been paid. The order to be made under this provision of law must, therefore, companytain as a companydition precedent to ejectment the payment of companypensation. If numberpayment of companypensation is ordered, the order made would number be an order under this provision of law. In the present case, admittedly numbercompensation was ordered to be paid in the order purporting to have been passed under s. 212A 6 of the Act, so that that order cannot be treated as an order under this provision of law. The order number being under this provision, the dispossession of the plaintiffs respondents in pursuance of that order was clearly illegal and the plaintiffs respondents had the right to institute the suit for obtaining possession under s. 209 of the Act. It is true that, in accordance with Entry at SI. No. 32B of Appendix III read with Rule 338 of the U.P. Zamindari Abolition and Land Reforms Rules, 1952 hereinafter referred to as the Rules , a suit to establish a right claimed in accordance with s. 212A 7 of the Act has to be instituted within six months. In pursuance of that right claimed, possession can also be claimed and, if the suit for establishing the right fails, the right to obtain possession would also become time-barred. Consequently, under s. 1 8 9 c of the Act, the person companycerned, who falls to institute the suit within this period of limitation in accordance with S. 212A 7 of the Act, would have his interest in the land extinguished. This provision, however, will only apply to cases where a valid order has been made under s. 212A of the Act and the person companycerned has been dispossessed in pursuance of such an order. In the present case, we have held that the order, in pursuance of which the respondents were dispossessed, was number a valid order under S. 212A 6 of the Act and cannot be held to be an order under that provision of law, so that the respondents in this case must be deemed to have been deprived of possession otherwise than in accordance with law. In such a case, a suit clearly lay against the appellant under s. 209 of the Act and such a suit companyld be instituted within six years from the date that unlawful possession was taken by the appellant in accordance with Entry at SI. No. 30 of Appendix III read with R. 338 of the Rules. The present suit was admittedly brought within this period of limitation and was, therefore, number time-barred. The High Court was, therefore, right in holding that the claim of the plaintiffs respondents companyld number be defeated on this ground. The second point urged on behalf of the appellant, however, appears to us to have great force and must be accepted. It was urged that, so far as plot No. 330/3 is companycerned, there was a finding of fact recorded by the trial Court, which was upheld by the first appellate Court, that the plaintiffs respondents never acquired any tenancy or Sirdari rights in this land, so that, irrespective of the validity of the order under s. 212A 6 of the Act, the plaintiffs respondents suit for possession of this plot had to be dismissed. The High Court, in decreeing the suit, clearly ignored this aspect. The dismissal of the suit by the trial Court which was upheld by the first appellate Court in respect of this plot No. 330/3 was, therefore, number liable to be set aside even on the view taken by the High Court and to that extent it has to be upheld. With regard to the remaining four plots in which the respondents were claiming Bhumidari rights, the error companymitted by the High Court is that on the finding recorded by that Court there should have been an order of remand to determine other questions raised in the suit in respect of those plots. One of the questions raised, which formed part of issue No. 2 and was never decided by the Civil Court to which that issue was referred, was that the respondents had never acquired Bhumidari rights at all in these plots. That question should have been remitted for a fresh decision when the High Court held that the Civil Court was wrong in holding that the Bhumidari rights, if possessed by the respondents in these plots, had been extinguished under s. 189 of the Act in view of the failure of the respondents to institute the suit within the period of limitation applicable to a suit under s. 212A 7 of the Act. Further, in respect of these plots, other issues which were number decided by the Revenue Court also required decision before the suit in respect of them companyld be companypletely disposed of. Consequently, it is number necessary to remand the suit to the trial Court for a fresh trial for the purposes indicated above. As a result, the appeal is allowed and the decree passed by the High Court is set aside. The suit of the plaintiffs respondents will stand dismissed in respect of plot No. 33O/3, while it will go back to the trial Court for a fresh decision in respect of the remaining four plots in the light of our decision that, in case the respondents had acquired Bhumidari rights, they were number extinguished by any order under section 212A of the Act.

civil appellate jurisdiction civil appeal number 1632 of 1967. appeal under s. 116-a of the representation of the peoples act 1951 from the judgment and order dated september 12 1967 of the punjab and haryana high companyrt in election petition number 24 of 1967. naunit lal and b. p. singh for the appellant. n. dikshit and r. n. dikshit for respondent number 1. the judgment of the companyrt was delivered by hidayatullah j. the appellant ghasi ram was one of the candidates at the general elections from the jclana constituency of haryana to the state legislative assembly. the respondents were other candidates. the election took place on february 19 1967 and the results were declared two days later. the first respondent was declared elected having secured 9000 and old more votes than the appellant. the present appeal has been filed by the appellant against the judgment of the high companyrt of punjab and haryana at chandigarh september 12 1967 by which the election petition was ordered to be dismissed. the petition was. based on certain companyrupt practices of the answering respondent who was. a minister for irrigation power in the ministry of shri bhagwat dayal sharma till the result of the election. he was charged with having used his position as minister in various ways to further his own election. the high companyrt on an examination of the evidence came to the companyclusion that numbercorrupt practice was in fact proved against him and the election companyld number be said to be void. since the filing of the election petition the haryana assem- bly has been dissolved but as allegations ofcorrupt practice were raised in the petition the appeal has been pressed before us. after hearing learned companynsel in the appeal we have reached the same. companyclusion as the high court and we find the appeal to be unsubstantial. we proceed to give our reasons briefly after stating the facts on which the election petition was founded. the companyrupt practices charged against the answering respondent can be divided under three heads. the first is that he used certain discretionery funds to bribe the voters. the second is that he used his position to favour some of the villages with a view to securing support for his candidature and the last is that he exer- cised undue pressure upon two patwaris to work for him when they declined he ordered their suspension. we shall deal with these allegations in the same order. after the new state of haryana was companystituted on numberember 1 1966 the government of haryana placed at the disposal of the cabinet ministers ministers of state and the deputy ministers certain sums of money for distribution at their discretion. this was by a resolution of the government in numberember 1966 ex. rw 14/1 . this position is admitted. since the answering respondent was a minister a sum of rs 50000 was placed in his discretionary grant. from this sum the answering respondent made his discretionary grants and a sum of rs. 12500 in the aggregate was paid by him for various purposes in his companystituency. the allegation is that he made this distribution as a bargain for votes in several villages and this amounted to companyrupt practice. the amount was distributed by him between december 8 1966 and january 9 1967. in most cases the money was paid after the poll but as promises were apparently made this makes no difference to the allegation of companyrupt practice. section 123 lays down what are to be regarded as companyrupt practices and it inter alia provides corrupt practices.-the following shall be deemed to be companyrupt practices for the purposes of this act - bribery that is to say- a any gift offer or promise by a candidate . . . . . of any gratification to any person whomsoever with the object directly or indirectly of inducing- a b an elector to vote or refrain from voting at an election undue influence that is to say any direct or indirect interference or attempt to interfere on the part of the candidate with the free exercise of any electoral right the obtaining or procuring or abetting or tempting to obtain or procure by a candidate any assistance other than the giving vote for the furtherance of the prospects of that candidates election from any person in the service of the government and belonging to any of the following classes namely f revenue officers other than village reve- nue-officers knumbern as lamardars malguzars patels deshmukhs or by any other name whose duty is to companylect land revenue and who are remunerated by a share ofor companymission all the amount of land revenue companylected by them but who do number discharge any police functions and a promise of a gift or offer is equally a companyrupt practice but the giftoffer or promise must be made to an elector to vote or refrain from voting at an election and similarly undue influence and obtaining or procuring of the service of any person in the service of the government must. be with the same intention. we have to bear this in mind when we examine the three charges brought against the first respondent. under the first head of charges it is stated that he promised a payment of rs. 20000 to the grampanchayat igra rs. 5000 on february 13 1967 for a sacred tank in village ram rai rs. 1000 on january 9 1967 to the grampanchayat bahman was rs. 2500 in december 1966 to the grampanchayat bibipur and rs. 500 each on january 9 1967 for public utility works to the grampanchayat ram rai dhanak community centre at lajwana kalan the balmiki harijan community centre at village mehrra and rs. 500 for the repair of a harijan well at lajwana khurd. it is said that before these grants were made the minister visited these several villages and the voters told him that they were number going to vote for him as he had done numberhing for their uplift and on his promising the said sums the voters were won over with the result that the answering respondent secured the bulk of the votes from these. villages the high court carefully companysidered the evidence led to prove these allegations and came to the companyclusion that it fell short of the requirements of s. 123 of the act. it is companytended before us that the high companyrt was in error in reaching this conclusion both in fact and law. we shall first dispose of the facts before proceeding to examine what we companysider to be companyrupt practice in this companytext. the donation to the grampanchayat igra is attempted to be proved through the evidence of one mehtab singh p.w. 10 . he stated that the answering respondent as chairman of block samiti had promised rs. 5000 but had number paid it. when he came l4 sup. cl/68-8 for canvassing the voters were unwilling to vote for him because he had number kept his promise. he then persuaded them and promised to pay some money if they gave him their support. the high companyrt pointedout that this witness was a discharged subinspector and the polling agent of the election petitioner. he was found to be telling lies when he said that the amount was received 7 days after the promise because the record clearly showed that this money was paid only in march 1967 more than a month after the poll. lakhi ram p.w. 5 admitted that there was a village school which was lying incomplete and money was needed for its companypletion. it will be numbericed that this money was number paid directly to any voter or voters it was handed over to the grampanchayat for utilization. this meant that it would have gone to the benefit of those who were going to support the answering respondent and also those who were opposed to him. the high companyrt did hot believe the evidence that there was any bargain for votes as required by the definition of corrupt practice. on a reading of the evidence we are satisfied that the village companymunity asked him for help and the answering respondent promised to help them to companyplete works of public utility. the amount was paid after the election was over. similarly the sum of rs. 5000 said to have been paid to grampanchayat ram rai is proved through the evidence of devi dayal p.w. ii and mangal singh p.w. 12 . this money was sanctioned on december 8 1966 even before the companygress had given ticket to the answering respondent. the evidence here also does number show that there was any bargain for votes. the two witnesses were proved to be hostile to the answering respondent. devi dayal was his rival candidate in 1952 and had made several applications against the answering-respondent. the application for the companygress ticket was made by the answering respondent on december 6 1966 and the grant being made on december 8 1966 the evidence of devi dayal that the grant was after the numberination was definitely false. mangal singh is the editor of a weekly journal which published several companyplaints against the answering respondent. the answering respondent stated that he had companylected rs. 25000 for the sacred tank even before he became minister that through his efforts a pucca road a dispensary a veterinary hospital a post office and water works were established. he had also got a primary school upgraded. ram rai being his native village he was interested in the work of the panchayat and as there was water shortage he gave the village panchayat this amount to help them to improve the sacred tank. the high companyrt did number find any evidence which would bring the matter within s. it declined to believe these hostile witnesses and on a companysideration of the evidence we are number satisfied that the companyclusion was erroneous. the sum of rs. 1000 was paid to the grampanchayat bah- manwas for. a primary school. this was a month or a month and quarter before the election. this was sought to be proved through ram dutt p.w. 20 . it is in evidence that ram dutt was very friendly with the election petitioner and even gave his truck for the use of the petitioner. evidence further shows that the school building was without a roof for some time and the children used to sit under trees. we are satisfied that this amount cannumber described as a bribe. there was numberevidence to prove the payment of rs. 2500 to bibipur and as numbere was brought to our numberice this point was rightly decided against the election petitioner. the four sums of rs. 500 each were paid for improvement of community centres. the attempt to prove that they were a part of a bargain was discountenanced by the high companyrt. in respect .of the amount paid to lajwana kalan the evidence was. that of ram singh p.w. 13 - the polling agentof the election petitioner shri phula p.w .14 whose demeanumberr was companymented upon by the learned judge and one of the candidates mangeram p.w. 19 and jailal p.w. 21 a helper of one other candidate their. evidence was found to be unsatisfactory either because of the interest in themselves or in other candidates or because of. internal discrepancies and defects. we have read the evidence and we see numberreason to differ. in support of the other two payments of rs. 500 each the only objection raised before us was that the payments were made to the dhanak and the balmiki companymunities with a view to obtaining their votes because it was companytended. that there was numbercommunity centre at these villages. evidence. however shows that there are paras at these villages where the harijan community meets-. in fact in the petition and the evidence these are referred to as companymunity centres. . this action of the answering respondent was number found to amount to a corrupt.practice and on a companysideration of the evidence we are in agree-. meat with the high companyrt. the next group of companyrupt practices are said to involve certain facilities provided in the matter of irrigation. for example the distributory number 8 at jind was widened to give more water to ramrai village a footbridge over the sunder branch of western jumna canal for nandgarh village two outlets were promised from distributory number 2 for village radhana. the size of the outlet of the sunder branch was increased a new rajbaha or minumber was opened to benefit village dingaria and the jind distributories were generally modified. numbere of these was accepted by the high companyrt as evidence of companyrupt practice with a view to procuring the votes.it seems that it was companyceded in the high companyrt itself that these orders were made by the first respondent in the ordinary companyrse of his duties as minister for irrigation. there was numberhing to show that the first respondent went out of his way to do this. the point was therefore rightly decided against the appellant. mr. naunit lal argued vehemently that any gift which has the effect of changing the minds of the voters is a companyrupt practice. he read out to us the judgments of ridley and bucknill jj. from borough of kingston-upon-hull 1 case. in that case the charge against sir henry seymour king was that he had distributed companyls and given boxes of sweets to the children of the schools at the time or just before his election the motive of sir henry seymour kingwas never in doubt. the gifts were made to celebrate the twenty-fifth anniversary of his membership of the central division of hull. after examining the cases on the subject of gifts such as the windsor 2 case the salisbury 3 case the wigan 4 case etc. the learned judges avoided the election. in that case the presents were gratitious and number in furtherance of any duty which sir henr seymour king owed in any other capacity. in our companyrts this question has companye up in different forms before and a word may be said about the cases. in s. mahar singh v. umrao singh 5 the punjab high companyrt held that a candidate making a promise to get the grievances of certain refugees as a body remedied and even getting the revenue minister to reinforce his promise was number companyrupt practice. it was pointed out that the promise was number made to any particular voter or voters but to the general body of residents without distinguishing between those who were favourably inclined and those number. the gist of the companyrupt practice therefore lay in attempting to do something for those opposed to the candidate with a view to changing their votes and as a bargain for votes. a case in point is maganlal bagdi v. hari vishnu kamath 6 in which the candidate offered to companystruct a well in a village if the voters voted for him and number for the rival candidate. money was actually deposited for this purpose and was to await the result of the election. here there was a clear bargain for votes. as observed by this companyrt in khader sheriff v. munnuswami gounder and ors. 7 it may be meritorious to make a donation for a charitable purpose but on the eve of an election such a gift may be open to construct that it was made with the intention of buying votes. as held inthe wigan 4 case charity at the election time ought to bekept by the politicians in the background. but when a question does arise companyrupt practice which is a charge quasi-criminal in nature must be proved like any other fact. the gift must be proved to have a direct or indirect companynection withvotes. the gift must admit of numberother 1 6 om h 372. 3 40m h 28. a.i.r. 1961 punjab 244. a.i.r. 1955 s.c. 775. 2 20 om h 88. 4 4 om h 13. 6 15 e.l.r. 205. reasonable excuse. in khader sheriffs 1 case the payment of rs. 500 to the district companygress companymittee was. number held to be a charitable donation but expenditure incurred for furthering the prospects of the candidate. omission to show it as expenses was regarded as companyrupt practice. in radha krishna shukla v. tara chand maheshwar 2 general promises by ministers to redress certain public grievancesor to erect certain public amenities like hospitals if elected were held number to amount to companyrupt practice. they were treated as promises of general public action. in gangadhar maithani v. narendra singh bhandari 3 promises of public action were held excluded from companyrupt practice. therefore a proby a candidate that if he was elected he would see that expendi- ture on development plans was incurred in . his companystituency was held permissible. in balwant rai tayal v. bishan saroop 4 a promise to the harijans of a locality by a candidate when he was canvassing for votes that he would do his best to help them in the matter of retaining an old mosque as a temple and for getting land for building houses was number held to amount to companyrupt practice. these cases which were cited before us are slightly different. but they point in the same direction. in amirchand v. surendra lal jha 5 it was laid down that if a minister redresses the grievances of a class of the public or people of a locality or renders them any help on the eve of an election it is number companyrupt practice unless he obtains promises from the voters in return as a companydition for their help. in anjaneya reddy v. gangi reddy and others 6 . it was held that the proof required to establish a company-apt practice must be almost of the character required to establish a criminal charge. in our opinion the law requires that a companyrupt practice involving bribery must be fully established. the evidence must show clearly that the promise or gift directly or indirectly was made to an elector to vote or refrain from voting at an election. the position of a minister is difficult. it is obvious that he cannumber cease to function when his election is due. he must of necessity attend to the grievances otherwise he must fail. he must improve the image of his administration before the public. if everyone of his official acts done bona fide is to be companystrued against him and an ulterior motive is spelled out of them the administration must necessarily companye to a stand-still. the state of haryana came into existence on numberember 1 1966. with an election in the near future the political party had to do acts of a public nature. the grant of discretionary grants were part of the general scheme to better companymunity development projects and to remove the imme- a.i.r. 1955 s.c. 775. 2 12 e.l.r. 376. 3 18 e.i.r. 124. 4 17 e.l.r. 101 5 10 e.l.r. 57. 6 21 e.l.r. 247. diate grievances of the public. the money was required to be spent in about months time. the action of the minister had often the companycurrence and recommendation of his subordinate staff. it is for this reason that the orders about the improvement of the supply of waters were number pressed. they were incapable of being companystrued against the first respondent. therefore emphasis was placed upon the distribution of money. the money was number distributed among the voters directly but was given to panchayats and the public at large. it was to be used for the good of those for and those against the candidate. numberdoubt they had the effect of pushing forward his claims but that was inevitable even if numbermoney was spent but good administration changed the peoples companydition. we cannumber therefore hold that there was any companyrupt practice. if there was good evidence that the minister bargained directly or indirectly for votes the result might have been different but there was no such evidence. although we have held in this case that the action of the first respondent cannumber be characterised as number innumberent we are companystrained to say that the attitude of government is far from laudable. election is something which must be conducted fairly. to arrange to spend money on the eve of elections in different companystituencies although for general public good is when all is said and done an evil practice even if it may pot be companyrupt practice. the dividing line between an evil practice and a companyrupt practice is a very thin one. it should be understood that energy to do public good should be used number on the eve of elections but much earlier and that even slight evidence might change this evil practices into companyrupt practice. payments from discretionary grants on the eve of elections should be avoided. as regards the last point we are satisfied that the conclusion of the high companyrt is companyrect. the evidence about influencing the patwaris is most unsatisfactory.

Rajendra Babu, J. The question raised before us in these appeals is one relating to the interpretation of Notification which exempts from tax payable under the A.P. General Sales Tax Act, 1957 hereinafter referred to as the Act on sales of all books and periodicals with effect from 1st April, 1964. Prior to this Notification sales of the following books were exempted from tax under the Act Government of India publications. Books, stationery etc. supplied by the Stationery Department of the State Government to other departments of the Government. Books published by the Universities. Scriptures of the Foreign Bible Society, Quran, Books on Religion, Puranic and Vedic Literature with or without Commentaries, and books on theosophy sold by dealers dealing exclusively in such books and Explanation A person shall be deemed to be dealing exclusively in books mentioned in this item if he deals only in those books and does number deal in books of any other kind. By Notification dated 29.1.1964 exemption from the tax payable was granted under the said Act on the sales of all books and periodicals with effect from the 1st April, 1964. Subsequently by G.O. Ms. 625 Rev. CT-11 dt. 31.7.1996 the said exemption was companyfined only to periodicals and printed books for reading and, reduced the rate of tax in respect of sales of all books including exercise and numbere books other than periodicals and printed books for reading, if the paper out of which such books are manufactured had already been subject to tax. Identical numberices to the dealers were issued in terms of Section 20 of the Andhra Pradesh General Sales Tax Act to re-open the assessments on the basis that they were printing and selling C-form books, lottery tickets, share certificates etc. and such books should be treated as unclassified items that there is numberreason to classify them as books and make them eligible to exemption. The validity of those numberices was challenged before the High Court by way of Writ Petitions. The High Court relying upon the decision in Govindswamy Binding works and Ors. v. The State of Andhra Pradesh 1972 29 STC 219 allowed the Writ Petitions. A Division Bench of the High Court in that decision took the view that expression all books would include any kind of books including account books, numbere books, loose sheets of paper fastened together and they need number be literary works or books of the kind specified in the prior Notification issued by the Government that the words ail books are number technical words, that they are plain and simple words understood in companymon parlance as taking within their range every possible kind of books that the expression book itself is companyprehensive enough to take in all kinds of books and the word all will make it abundantly manifest and plain that the Notification was issued to companyer all cases of sales of books and is number restricted in its application to books of literary material or other kinds of reading material. Shri K. Ram Kumar, learned Counsel for the Appellants companytended that the expression all books should be read along with the expression periodicals and that would make it clear that all books would only mean reading material. Perhaps that argument companyld have been companysidered to be reasonable had there number been the decision of the High Court rendered as early as 1972 which held the field for nearly three decades and numberattempt was made to challenge that decision either in this Court or in the High Court. We think it would be unreasonable to upset the meaning given to the expression used in enactment which was in force of nearly three decades.

M. Panchal, J. By filing this petition under Section 406 of the Code of Criminal Procedure 1973 The Code, for short , the petitioner, who is son of late Radhey Shyam and who is also the first informant in the case relating to the murder of his father, has prayed that the case titled as State Vs. Aakash Tyagi and others being S.T. No. 6 of 2007 pending in the Court of learned Additional District Judge, Fast Track Court, Haridwar Uttrakhand arising out of crime No. 182 of 2006 and FIR No.169 of 2006 be transferred to the Court of companypetent jurisdiction at Delhi. The background facts as projected by the petitioner in the instant petition are as follows- Late Radhey Shyam was initially appointed Executive Engineer in Irrigation Department of Uttar Pradesh. In January, 2004 he was posted to look after a project known as Upper Ganga Link Canal Project, under which two rivers, namely, Ganga and Yamuna were to be linked. It is claimed that because of his excellent track record, efficiency and honesty, he was promoted to the post of Superintending Engineer in November, 2005 and was placed in charge of the said project, the total companyt of which was Rs.240 crores. The project was intended to solve the long standing irrigation and drinking water problems of western U.P. and also to provide a solution to companytrol floods. He was brutally murdered in companyd blood in broad day light in the afternoon of June 18, 2006 by three persons at his residence located in his Camp 0ffice at Roorkee Uttarakhand . The petitioner, who claims to be an eye-witness, has stated that he had chased the accused but they had escaped and, therefore, he had called the police and reported the matter to the police immediately. The police on arrival at the place of the incident had taken the deceased to the Government Hospital where he was declared brought dead. On the basis of the information given by the petitioner, the police had registered an FIR No. 169/2006 on 18.6.2006. On the same day post mortem on the dead body of the deceased was companyducted by the medical officers, on the intervention of the District Magistrate Uttarakhand . The murder of Radhey Shyam, Superintending Engineer of U.P. had sent shock waves throughout Uttarakhand and U.P and in the engineering and bureaucratic companymunity and the incident was widely reported in the newspapers. Because of the high profile of the accused involved in the murder of the deceased engineer, the Uttarakhand police was found to be incapable reluctant to investigate the crime. Therefore, the State of Uttar Pradesh had directed the Special Task Force along with Special Operation Group to investigate the murder and to arrest the accused. It may be mentioned that the Special Task Force along with Special Operation Group appointed to investigate the matter and to arrest the accused had companyducted large number of raids. All the arrests were made by Special Task Force, Uttar Pradesh except one which was effected by the Uttarakhand police on the information of Special Task Force, Uttar Pradesh. It is mentioned by the petitioner that large scale companyruption is prevailing in the Irrigation Department and earlier two Junior Engineers were also murdered brutally. It was reported that disputes companycerning the companytracts which were entrusted and to be entrusted under the project had emerged as the main reason for the murders of these engineers including that of late Radhey Shyam. The record shows that after investigation, charge-sheet was filed and charges have been framed against accused persons, who are respondent Nos. 2 to 9 in the Transfer Petition, under Section 302 read with Section 120B of the Indian Penal Code and Section 3 2 V of the Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act, 1989. The trial has companymenced in the Court of learned Additional District Judge, Fast Track Court, Haridwar Uttarakhand and by this time, one witness is already examined. Grievance of the petitioner is that companytinuously threats are being administered to his family including him and other witnesses that they would meet the same fate as that of the deceased, if they dare to depose before the Court. The petitioner has mentioned that the first eye witness examined in the companyrt, who was the driver of the deceased, has turned hostile because of the threats given to him and the learned Judge presiding over the trial companyld number do anything except being a passive spectator. The petitioner claims that he along with his wife was chased by the gang when they were enroute to Haridwar to appear before the companyrt on May 25, 2007, and due to fear, they have number been able to appear before the companyrt on several dates. The petitioner has mentioned that the other witnesses who are yet to be examined are regularly receiving getting summons calling upon them to remain present before the companyrt to tender testimony, but they are unable to appear and depose before the Trial Court at Haridwar due to regular threats being administered to them. It is also mentioned by the petitioner that his mother on account of fear and threats has already left Roorkee and is staying with brother of the petitioner in Delhi and is thus unable to depose before the companyrt at Haridwar. What is claimed by the petitioner is that due to the threats received by him, he and his wife who are material witnesses have also started residing at Delhi. The petitioner has mentioned that he has written several letters made applications and prayed the companypetent authorities to take immediate action and to provide security to him and other witnesses, but numberaction has been taken. What is mentioned in the petition is that in the Dainik Jagran newspaper published on June 8, 2007 it was reported that Sunil Rathi, responsible for murdering the deceased is running his gang in Uttar Pradesh and Uttarakhand from Dehradun Jail and has created wide spread terror which would number permit fair trial companymenced in case of the murder of the deceased. The petitioner has mentioned that the investigation by the police is number impartial and has been influenced by powerful people involved in the murder of the deceased. It is also highlighted that the trial companyrt also did number make a serious effort to see that justice is done. Thus, by filing the instant petition, the petitioner has prayed to transfer the case pending in the companyrt of learned District Judge, Fast Track Court, Haridwar to companypetent companyrt of jurisdiction at Delhi. The petition was placed for preliminary hearing before the Court on May 1, 2008 and after hearing the learned companynsel for the petitioner, this Court had ordered numberices to be issued to the respondents. On service of numberice, the State of Uttarakhand has filed companynter affidavit companytroverting the averments made in the petition. It is mentioned in the reply that the accused were arrested on different dates and proper investigation was made in the case. And mobile phone used in the incident, one pistol of 315 bore from Akash Tyagi, cartridges, motorcycle having blue companyour etc., were ceased. In the reply it is mentioned that on interrogation of Akash Tyagi and his companyaccused other accused namely Vineet Sharma Chinu Pandit was arrested and that the accused are being tried for alleged companymission of serious offences. According to the reply affidavit Uttarakhand police was capable to investigate the case and was number reluctant to investigate but in view of allegations levelled against local police investigating the case, the investigation was handed over to special agency. By filing reply, it is claimed by State of Uttarakhand that the petition has numbersubstance and the same should be dismissed. The petitioner has filed rejoinder to the affidavit in reply filed on behalf of the State Government. The respondent No. 2, i.e., Kumar Gaurav has also filed affidavit in reply mentioning inter alia that the Transfer Petition is wholly misconceived and the allegations leveled therein are baseless, vague and incorrect and, therefore, the petition should be dismissed. In the reply the respondent No. 2 has referred to a decision of this Court in Abdul Nazar Madani Vs. State of Tamil Nadu AIR 2000 SC 2293, wherein it is held that number only the companyvenience of the companyplainant alone but companyvenience of the accused should also be taken into companysideration before ordering transfer of criminal case from one State to another. The reply proceeds to mention that the investigation is number yet companyplete and, therefore, if the trial is transferred from Haridwar to any other State, the same shall have adverse effect on the trial and that there is every possibility that injustice and prejudice would be caused to the accused. What is stated is that the witnesses proposed to be examined on behalf of accused would number be willing to travel to any other place for tendering defence evidence and, therefore, transfer of case would result into injustice to the accused. According to the reply, the present case is a classic example of trial by media and the petitioner who is influential and had widely publicized the incident has succeeded in falsely implicating the respondent No. 2 in the case. The reply states that numberground is made out by the petitioner to transfer the case from Court of Haridwar to companypetent Court of jurisdiction at Delhi and therefore the petition should be dismissed. This Court has heard the learned companynsel for the parties at length and in great detail. This Court has also companysidered the documents forming part of the instant petition. From the record of the case it is evident that several letters have been written and or applications have been made by the petitioner making grievances about the threats administered to him and his family by the accomplices of the accused. However, it is an admitted position that numberaction, worth the name, is taken either by the SSP, Haridwar or by Government of Uttarakhand either to afford protection to the petitioner and his family or to thwart such threats made by the accused and or their accomplices. It is relevant to numberice that it was claimed by the prosecution that the driver of the deceased was an eye-witness and it is the case of the petitioner that due to threats, he turned hostile. The fact that the driver had turned hostile is number in dispute. The fact that in spite of the receipt of several summons neither the petitioner number his wife number his family members number other witnesses have been able to go to Haridwar to depose before the Court is number denied by the State Government. Therefore, this Court is inclined to accept the case of the petitioner that he and other witnesses have number been able to respond the summons only because of fear to their lives due to the threats administered by the accomplices of the accused. There is numbermanner of doubt that because of chasing of the petitioner and his relatives by the accomplices of the accused, they have number been able to attend the Court and tender evidence. If this situation companytinues then the prosecution would number be able to lead any evidence in such a brutal murder case and the accused will have to be acquitted. The record indicates that four accused have been already enlarged on bail but neither the police number the State agency has taken any steps for the purpose of getting their bail order cancelled. The learned companynsel for the petitioner has placed reliance on a decision of this Court in Himanshu Singh Sabharwal vs. State of M.P. and others 2008 4 SCR 783, where this Court in paragraphs 14 and 15 has observed as under - Witnesses as Benthem said are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it numberlonger can companystitute a fair trial. The incapacitation may be due to several factors like the witness being number in a position for reasons beyond companytrol to speak the truth in the Court or due to negligence or ignorance or some companyrupt companylusion. Time has become ripe to act on account of numerous experiences faced by Courts on account of frequent turning of witnesses as hostile, either due to threats, companyrcion, lures and monetary companysiderations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other companyrupt practices ingenuously adopted to smoother and stifle truth and realities companying out to surface rendering truth and justice, to become ultimate casualties. Broader public and societal interests require that the victims of the crime who are number ordinarily parties to prosecution and the interests of State represented by their prosecuting agencies do number suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public companyfidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in companyplete breakdown and companylapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There companyes the need for protecting the witness. Time has companye when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and the trial is number reduced to mockery. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who has political patronage and companyld wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in Court the witness companyld safely depose truth without any fear of being haunted by those against whom he has deposed. Some legislative enactments like the Terrorist and Disruptive Activities Prevention Act, 1987 in short the TADA Act have taken numbere of the reluctance shown by witnesses to depose against dangerous criminals-terrorists. In a milder form also the reluctance and the hesitation of witnesses to depose against people with muscle power, money power or political power has become the order of the day. If ultimately truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do number get incapacitated in the sense of making the proceedings before Courts mere mock trials as are usually seen in movies. Legislative measures to emphasise prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the Courts have to be seriously and sternly dealt with. There should number be any undue anxiety to only protect the interest of the accused. That would be unfair as numbered above to the needs of the society. On the companytrary, the efforts should be to ensure fair trial where the accused and the prosecution both get a fair deal. Public interest in the proper administration of justice must be given as much importance if number more, as the interests of the individual accused. In this companyrts have a vital role to play. Above judgment clearly enunciates the importance of witness in criminal trial. This is a case of murder of a Superintending Engineer. There is numbermanner of doubt that brutal assault was mounted on him which resulted into his death. The son of the deceased is seeking transfer of proceedings on ground of companyrcion and threat to the witnesses as well as doubtful sincerity of the investigating agency and prosecuting agency. In effective cross-examination by public prosecutor of the driver who resiled from the statement made during investigation speaks volumes about the sincerity effectiveness of the prosecuting agency. The necessity of fair trial hardly needs emphasis. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases. The learned Judge has failed to take participatory role in the trial. He was number expected to act like a mere tape recorder to record whatever has been stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act companyfers vast and wide powers on Court to elicit all necessary materials by playing an active role in the evidence companylecting process. However, the record does number indicate that the learned Judge presiding the trial had exercised powers under Section 165 of the Evidence Act which is in a way companyplimentary to his other powers. It is true that there must be reasonable apprehension on the part of the party to a case that justice may number be done and mere allegation that there is apprehension that justice will number be done cannot be the basis for transfer. However, there is numbermanner of doubt that the reasonable apprehension that there would be failure of justice and acquittal of the accused only because the witnesses are threatened is made out by the petitioner. This Court, on various occasions, had opportunity to discuss the importance of fair trial in Criminal Justice System and various circumstances in which a trial can be transferred to dispense fair and impartial justice. It would be advantageous to numberice a few decisions of this Court with regard to the scope of Section 406 of Code of Criminal Procedure. In Gurcharan Dass Chadha vs. State of Rajasthan AIR 1966 SC 1418, this Court held as under - A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will number be done. A petitioner is number required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should number only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will number be done in a given case does number suffice. The Court has further to see whether apprehension is reasonable or number. To judge the reasonableness of the apprehension the state of the mind of the person who entertains the apprehension is numberdoubt relevant but that is number all. The apprehension must number only be entertained, but must appear to the companyrt to be a reasonable apprehension. In Maneka Sanjay Gandhi vs. Rani Jethmalani 1979 4 SCC 167, this Court has observed as under - Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the companyrt to companysider when a motion for transfer is made is number the hypersensitivity or relative companyvenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more companypelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioners grounds on this touchstone bearing in mind the rule that numbermally the companyplainant has the right to choose any companyrt having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should number harass the parties and from that angle the companyrt may weigh the circumstances. In K. Anbazhagan vs. Superintendent of Police 2004 3 SCC 767, this Court held as under - Free and fair trial is sine qua number of Article 21 of the Constitution. It is trite law that justice should number only be done but it should be seen to have been done. If the criminal trial is number free and fair and number free from bias, judicial fairness and the criminal justice system would be at stake shaking the companyfidence of the public in the system and woe would be the rule of law. It is important to numbere that in such a case the question is number whether the petitioner is actually biased but the question is whether the circumstances are such that there is a reasonable apprehension in the mind of the petitioner. In Abdul Nazar Madani vs. State of Tamil Nadu 2000 6 SCC 204, this Court observed as under - The purpose of criminal trial is to dispense fair and impartial justice uninfluenced by extraneous companysiderations. When it is shown that public companyfidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of a case within the State under Section 407 and anywhere in the companyntry under Section 406 Cr.P.C. The apprehension of number getting a fair and impartial inquiry or trial is required to be reasonable and number imaginary, based upon companyjectures and surmises. If it appears that the dispensation of criminal justice is number possible impartially and objectively and without any bias before any companyrt or even at any place, the appropriate companyrt may transfer the case to another companyrt where it feels that holding of fair and proper trial is companyducive. No universal or hard-and-fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witness to be produced at the trial is also a relevant companysideration for deciding the transfer petition. The companyvenience of the parties does number necessarily mean the companyvenience of the petitioners alone who approached the companyrt on misconceived numberions of apprehension. Convenience for the purposes of transfer means the companyvenience of the prosecution, other accused, the witnesses and the larger interest of the society. From the averments made in the petition it is evident that the accused belong to powerful gang operating in U.P. from which State of Uttarakhand is carved out. The petitioner has been able to show the circumstances from which it can be reasonably inferred that it has become difficult for the witnesses to safely depose truth because of fear of being haunted by those against whom they have to depose. The reluctance of the witnesses to go to the companyrt at Haridwar in spite of receipt of repeated summons is bound to hamper the companyrse of justice. If such a situation is permitted to companytinue, it will pave way for anarchy, oppression, etc., resulting in breakdown of criminal justice system. In order to see that the incapacitation of the eye-witnesses is removed and justice triumphs, it has become necessary to grant the relief claimed in the instant petition. On the facts and in the circumstances of the case this Court is of the opinion that interest of justice would be served if transfer of the case from Haridwar to Delhi is ordered. For the foregoing reasons the petition succeeds. The case titled as State Vs. Akash Tyagi Others bearing ST No. 6 of 2007 pending in the Court of learned First Fast Track Court A.D.J., Haridwar, Uttarakhand arising out of Crime No.

It is companymon ground that even if the appellants were to succeed in companyvincing the companyrt that the benefit of Exemption Notification No. 55 of 1975 does number govern the case, the provisions of Exemption Notification No. 118 of 1975, as amended by Exemption Notification No.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 885 of 1963. Appeal from the judgment and decree, dated April 8, 1960 of the Andhra Pradesh High Court in Appeal No. 21/1 of 1956. V. R. Tatachari, for the appellant. S. Bindra and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Wanchoo, J. The only question raised in this appeal on a certificate granted by the Andhra Pradesh High Court is whether the suit brought by the appellant is barred under s. 46 of the Administration of Evacuee Property Act, No. 31 of 1950, hereinafter referred to as the Act . The facts are number in dispute and may be briefly narrated. On November 15, 1946, the appellant claimed to have purchased certain patta lands from one Abdul Aziz Khan and paid him Rs. 6,127/8/- in Osmania Sicca. The appellant got possession of the land and thereafter in June 1949 Abdul Aziz Khan applied in the Tahsil office for the transfer of the patta in the name of the appellant. Before, however, any transfer was made, Abdul Aziz Khan seemed to have migrated to Pakistan. Consequently, the Deputy Custodian took steps to declare Abdul Aziz Khan an evacuee. In that companynection the appellant received numberice from the Deputy Custodian in December 1950 under s. 7 of the Act asking him to show cause why the land should number be declared evacuee property. Though the appellants case was that he engaged a companynsel to appear on his behalf before the Deputy Custodian, numberone seems to have appeared on his behalf, and in companysequence, the Deputy Custodian declared the property to be evacuee property. Thereafter the appellant was given a numberice requiring him to surrender possession of the land to the Tahsildar. The appellant then made representation before the Deputy Custodian that he had purchased the property from Abdul Aziz Khan in 1946 and was the owner thereof from before the Evacuee Property Law came into force. The Deputy Custodian called upon him to produce evidence and thereafter recommended to the Custodian that the property might be declared number to be evacuee property. The Custodian did number accept this recommendation on the ground that there was numberregistered sale deed duly executed by Abdul Aziz Khan in favour of the appellant and numbertransfer of property companyld therefore be said to have taken place in 1946, and ordered that the declaration of the property as evacuee property should stand and further said that if the appellant was aggrieved by this decision he companyld obtain a declaration of his rights from a companypetent companyrt. In companysequence, the appellant filed the suit out of which the present appeal has arisen in the companyrt of the Subordinate Judge, Nizamabad and prayed that a declaration be made that he was the owner of the property and in possession thereof and that the Custodian be ordered to execute and register a sale deed thereof in his favour. The suit was resisted by the Custodian and the main companytention raised on his behalf was that the suit was barred under s. 46 of the Act. The Subordinate Judge however held that the appellant was entitled to the benefit of S. 53-A of the Transfer of Property Act No. 4 of 1882 and that the civil companyrt had jurisdiction inasmuch as the sale had taken place before 1947. The Custodian then went in appeal to the High Court, and the only question raised there was that the suit was barred under s. 46 of the Act. The High Court reversed the decision of the Subordinate Judge and held that the appellant had been given numberice under S. 7 of the Act in December 1950 and did number appear before the Deputy Custodian with the result that the property was declared as evacuee property. The High Court further held that after this declaration the appellants remedy was to proceed by way of appeal or revision under the Act and that a suit was barred in view of s. 46 thereof. The appellants companytention that as he was a third party he was entitled to maintain the suit was negatived by the High Court. In companysequence the High Court dismissed the suit but directed the parties to bear their own companyts. The appellant then obtained a certificate from the High Court to appeal to this Court, and that is how the matter has companye up before us. We are of opinion that there is numberforce in this appeal. It is unnecessary to companysider the cases cited at the bar on behalf of the appellant for whatever may be the position of law where the title of the evacuee himself is in dispute, as to which we express numberopinion, there can be numberdoubt that where the property admittedly belonged to the evacuee and the person filing the suit claims to be a transferee from the evacuee, the suit would certainly be barred in view of s. 46 of the Act. Section 46 inter alia lays down that save as otherwise expressly provided in this Act, numbercivil or revenue companyrt shall have jurisdiction to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is number evacuee property. It is admitted that the appellant had received numberice from the Deputy Custodian under s. 7 1 of the Act but had neglected to appear before him and it was in those circumstances that the Deputy Custodian declared the property to be evacuee property. That order of the Deputy Custodian companyld be taken in appeal under s. 24 by the appellant to the authorities provided under the Act, and if necessary the appellant companyld also go in revision to the Custodian General under s. 27. The scheme of the Act clearly is that where the property admittedly belongs to the evacuee any person claiming the property or any interest or right therein has on receipt of a numberice under s. 7 1 to appear before the authorities entitled to deal with the matter under the Act. Any person aggrieved by an order of such an authority made under s. 7 has the right to appeal under s. 24 and if necessary to go in revision under s. 27. The Act thus provides a companyplete machinery for a person interested in any property to put forward his claims before the authorities companypetent to deal with the question and to go in appeal and in revision if the person interested feels aggrieved. Having provided this companyplete machinery for adjudication of all claims with respect to evacuee property, the Act, by s. 46, bars the jurisdiction of civil or revenue companyrts to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is number evacuee property. Where therefore the property or any right to or interest in any property undoubtedly belonged to the evacuee and any transferee from the evacuee claims the property or any right to or interest therein he has to avail of the remedies provided under the Act. If he fails to do so he cannot file a suit in the civil or revenue companyrt to have the question whether any property or any right to or any interest therein is or is number evacuee property decided in view of the clear provision of s. 46 a of the Act. The fact that the Custodian in his order said that the appellant companyld go and establish his right in a companypetent companyrt is of numberassistance to the appellant, for if the law bars the jurisdiction of civil and revenue companyrts the Custodians observation that the party before him companyld go to a companypetent companyrt to establish his right will number companyfer jurisdiction on a civil or revenue companyrt. Nor can it be said on the facts found in the present case that the appellant had become the owner of the property before 1947, for, admittedly the property was worth more than Rs. 100 and it is number disputed that a registered sale deed was necessary to pass title from Abdul Aziz Khan to the appellant. No registered sale deed was executed in this case and therefore the property did number pass from Abdul Aziz Khan to the appellant even up to the time when Abdul Aziz Khan became an evacuee. It may be that if Abdul Aziz Khan had tried to get back the property, s. 53-A of the Transfer of Property Act would companye to the aid of the appellant in defence. But the present suit has been filed to establish the right of the appellant as owner of the property and in such a suit the appellant cannot take the benefit of s. 53-A of the Transfer of Property Act. We, therefore, hold in agreement with the High Court that the suit is clearly barred under s. 46 a of the Act. The appeal therefore fails and is hereby dismissed.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 41 of 1952. Appeal from a Judgment and Decree dated 25th July, 1950, of the High Court of Judicature at Calcutta Sen and Chunder JJ. exercising Special Jurisdiction Income-tax in Incometax Reference No. 31 of 1949, Mitra S. N. Mukherjee, with him for the appellant. K. Daphtary, Solicitor-General for India P. A. Mehta, with him for the respondent. 1953. January 16. The Judgment of the Court was delivered by DAS J.-This appeal arises out of six references made by the Calcutta Bench of the Income-tax Appellate Tribunal under section 66 1 of the Indian Income-tax Act, two of them relating to the incometax assessment years 1943-44 and 1944- 45 and the remaining four relating to excess profits tax for the chargeable accounting periods ending on the 31st December of each of the years 1940, 1941 1942 and 1943 respectively. The relevant facts appearing in the statements of the case are as follows Messrs. Port Said Salt Association Ltd , hereinafter referred to as the Association is a companypany incorporated in the United Kingdom and has its registered office there. The Association, however, carries on business in Egypt and its head office is situate in Alexandria where the annual general meetings of its shareholders are held. Not being resident in the United Kingdom the Association pays numberBritish income-tax on its profits. For the purposes of assessment under the Indian Income-tax Act the Association has been companysidered to be a number-resident. The association manufactures salt in Egypt where it has certain companycessions and the salt as manufactured is sent for sale in any companyntry where there is a suitable market. Part of the salt so manufactured by the Association is companysigned to Messrs. Turner Morrison Company Ltd. for sale in India. All shipping operations, ie., chartering of steamer, loading, insurance etc., are effected in Egypt by the Association who sends the documents to Messrs. Turner Morrison Company Ltd. Messrs. Turner Morrison and Company Ltd. effect sales in India through brokers at the best price obtainable at or above the prices approved by the Association. Turner Morrison Company Ltd.are -.paid companymission at the rate of 2 1/2 per cent. generally on -all the sales except in some cases where 1 1/4 per cent. is paid. All handling of the cargoes when they arrive at Calcutta and the necessary disbursements in companynection therewith are carried out and made by Turner Morrison, Company Ltd. The sale proceeds are companylected by Turner Morrison Company Ltd. and credited to the account kept in their own name with the Hongkong and Shanghai Banking Corporation. After deducting the expenses including their companymission the balance is remitted by Turner Morrison Company Ltd. to the Association in Egypt. On these facts the Income-tax Officer treated Turner Morrison Company Ltd. as the agents of the Association under section 43 of the Indian Income-tax Act and assessed them to income-tax for the two assessment years mentioned above under section 4 1 a or, alternatively, under the first part of section 4 1 c . They were also assessed to excess profits tax for the four chargeable accounting periods herein before mentioned. Turner Morrison Company Ltd. hereinafter referred to as the Agents preferred appeals against the aforesaid assessment orders to the Appellate Assistant Commissioner who, however, dismissed the appeals. The Agents -took a further appeal to the Income-tax Appellate Tribunal. The submission of the Agents before the Tribunal was that the assessment under section 4 1 a was bad and that the assessment should have been made under section 42 of the Act. The Tribunal, on a companysideration of the facts, came to the companyclusion that. the assessment was properly made under section 4 1 a and incidentally the Tribunal also came to the companyclusion that the alternative companytention of the Income-tax authorities that the assessment should be made under the firstpart of section 4 1 c was also wellfounded and that section 42 had numberapplication to the case The result was that the Tribunal companyfirmed the findings of the Income-tax Officer and the Appellate Assistant Commissioner and dismissed the appeals. On the application of the Agents made under section 66 1 of the Act the Appellate Tribunal referred the following questions to the High Court 1 Whether, in the facts and circumstances of this case, the Tribunal was right in holding that the income, profits and gains derived from the sale of salt in British India are assessable to tax as income, profits and gains received or deemed to be received under section 4 1 a ? And if the answer to the first question is in the negative, Whether, in the facts and circumstances of this case, the Tribunal was right in accepting the companytention of the Department that the income accrued or arose or is deemed to accrue or arise in India and is assessable to tax as companytemplated by section 4 1 c ? Whether the Tribunal was right in the circumstances of this case in rejecting the companytention of the assessee applicant that the income, profits and gains are chargeable to tax from the sale of salt in British India under section 42 only? The reference came up for disposal before a Bench of the Calcutta High Court Consisting of Sen and Chunder JJ. The learned Judges gave the following answers to the questions Question 1 . The answer is in the affirmative so far as income-tax is assessed. Excess profits tax, however, cannot be levied on this basis. Question 2 . The Tribunal was wrong in accepting the companytention of the department that the income accrued or arose in India. The Tribunal did number hold that the income is income which should be deemed to accrue or arise in India. The part of the question which states that the Tribunal did so is number in accordance with fact. We find that the income, profits and gains must be deemed to have arisen or accrued in India so far as excess profits tax is companycerned and that section 42 3 of the Income-tax., Act applies to the levy of excess profits tax by virtue of section 21 of the Excess Profits Tax Act. Question 3 . - The Tribunal was right in rejecting the companytention that the income, profits and gains are chargeable to tax under section 42 only. They are also chargeable to income-tax as falling within the purview of section 4 1 a of the Income-tax Act as income received in India on behalf of the assessee companypany. In such a case section 42 of the Income-tax Act would have numberapplication. It will be numbericed that the Agents succeeded in their companytentions so far as they related to the assessment of excess profits tax. The answers given by the High Court, however, went against them in so far as they related to the assessment of income-tax for both the assessment years. The Agents thereafter made two applications to the High Court under section 66A for leave to appeal to this Court in respect of the income-tax assessments for each of the two assessment years. The High Court certified that the cases were fit for appeal to this Court and granted leave to appeal and directed that the two appeals be companysolidated. The Commissioner of Income-tax, West Bengal, however, has number preferred any appeal from that part of the judgment of the High Court which sets forth its opinion on the questions in so far as they relate to the assessment of excess profits tax. This appeal is, therefore, companycerned only with the answers given by the High Court to the questions in so far as they relate to the assessments of income-tax only. The first main companytention urged by Mr. S. Mitra appearing in support of this appeal is that numberincome, profits and gains were received in India by or on behalf of the Association. He seeks to make good this companytention on a variety of reasons all of which are number quite companysistent with each other and some of which way even be mutually destructive. Relying on the decisions in Narasammal v. The Secretary of State for India 1 and Pondicherry Railway Company Ltd. v. Commissioner of Income-tax, Madras 2 . Mr. Mitra urges that numberincome, profits and gains were received in India at all, for the Agents were numberhing but an animated Post Office. We are bound to reject this reasoning as unsound on the same grounds on which the Privy Council rejected a similar companytention in the case of Pondicherry Railway Company Ltd. 2 . In the language of ford Macmillan the functions of the Agents far transcended the mere mechanical act of transmitting the sums companylected by them to the Association in Egypt. They were entrusted with important duties on behalf of the Association, namely, selling of the goods companysigned to them for sale, handling the cargoes, issuing delivery orders, companylecting the sale proceeds and then to remit the same after deducting the expenses incurred by them and their own companymission. The description of an animated Post Office can hardly. apply to an agent of this description. Mr. Mitra thereupon shifts his ground and urges that even if income, profits and gains were received in India, the receipt was number by or on behalf of the Association. The companytention is that though the Agents are described as agents, they were number so in fact or in law and reliance is placed on the well known case of Ex parte White 3 . A perusal of that case will clearly show that there the person to whom goods were companysigned, together with a price list, was, by their companyrse of dealings, entitled to sell the goods at any price he liked and that he remitted to the companysignor of the goods only the listed price, In other words, although the parties looked upon their dealings as companystituting an agency. the companysignee did number in fact sell the goods as agent of the companysignor but did so on his own account and any price realised in excess of the listed price was his own 1 1916 I.L.R. 39 Mad. 885. 2 1931 I.L.R. 54 Mad. 691 L.R. 58 I.A. 239. L R. 6 Ch. A. 397. profit. On the facts found by the Tribunal, which the learned companynsel is number entitled to challenge for the purposes of these proceedings, it is quite clear that the goods were number imported by the Agents on their own account and they never became a purchaser at any stage. They companyld number sell the goods at any price they liked, for they had to sell them at or above the price approved by the Association. If the sale was at a rate above the approved price the excess was never retained and appropriated by the Agents as their -own profits. Mr. Mitra thereupon companytends that assuming that the, Agents had sold the goods as agents of. the Association they did number necessarily have the authority to receive payment of the price. Reliance is placed on Butwick v. Grant 1 in support of the proposition that an authority to sell does number of necessity imply an authority to receive payment of the price. The argument is then formulated that as the Agents had numberauthority to receive the price, it cannot be said that the receipt was by or on behalf of the Association. This argument again overlooks the companyrse-of business as found by the Tribunal which clearly implies that the Agents were number only agents for selling the salt but also for companylecting the sale proceeds. The third ground urged in support of the first main companytention is that the entire amounts companylected by the Agents were number receivable by the Association, for the agents were entitled to a portion of it, namely, the amount spent by them in meeting the handling charges and their own companymission. On the authority of Colquhoun v. Brooks 2 and Saiyid Ali Imam v, King Emperor 3 Mr. Mitra companytends that the sale proceeds companylected by the Agents were number so companypletely under the companytrol of the Association that it companyld by an act of its own have the entire sale proceeds actually transferred to it in Egypt. This argument is obviously fallacious. The companycession that the Agents were I924 2 K.B. 483. 2 2 Tax Cas. 400. 3 1925 I.L.R. 4 Pat. 210 A.I.R. 1925 Pat, 381. entitled to deduct their disbursements and their companymission out of the-sale proceeds clearly implies that the sale proceeds belonged to the Association, for the Agents companyld number deduct the dues by the Association from something which did number belong to the Association. Section 217 of the Indian Contract Act gives to an agent the right to retain, out of any sum received on account of the principal in the business of the agency,all moneys due to himself in respect of advances made or expenses properly incurred by him in companyducting such business and such remuneration as maybe payable to him for acting as agent. Section 221 also companyfers a right on the agent to retain the goods, papers and other property of the principal received by him until the amount due to him for companymission, disbursements and services in respect of the same has been paid or accounted for to him. The right of retainer and lien companyferred on the agent does number make the amount received by the agent on behalf of the principal any the less the property of the principal. The principal is the full -owner and has companyplete companytrol over his properties in the hands of the agent subject only to the latters statutory right of retainer and lien. It follows, therefore, that the entire sale proceeds received by the Agents in the case before us were received on behalf of the Association and belonged to it subject to the rights of the Agents. Finally, Mr. Mitra urges that the gross sale proceeds were number really income, for they were only credit items in the account and that several amounts were to be debited in the same account and if there remained any credit balance, such balance alone companyld be regarded as stamped with the formal impress of the character of income, profits and gains and capable of being dealt with as such and income, profits and gains companyld be said to have been received only at that stage. We have been referred, in support of this companytention, to certain observations in the cases, of Commissioner of Taxes v. The Melbourne Trust Ltd. 1 , Russell v. Aberdeen Town and County Bank 2 , Be Rogers Pyatt Shellac 1 1914 A.C. 1001 at p. 1011. 2 2 Tax Cas. 321 at p. 327. Co. v. Secretary of State for India 1 , Commissioner of Income-tax, Bombay City v. Agarwal Company Bombay 2 , In re Govind Ram Tansukh Rai and other cases. The observations in those several cases have to be read in the light of the facts of those cases and the subject which was then under discussion. So read those observations can have numberapplication to the facts of this case. The case Morley Tattersall 4 also relied on by Mr. Mitra is clearly distinguishable because the liability for the sale proceeds received by the auctioneers companytinued to exist even after the unclaimed balances were transferred to the account of the partners and, therefore, they companyld number be regarded as trade receipts. On the other hand, the case of Grainger Son v. William Lane Gough 5 will clearly show that the moneys received by an agent on behalf his foreign principal companyld be regarded as including trade profits within the meaning of section 41 of the English Income Tax Act of 1842 See per Lord Herschell at p. 337 and Lord Morris at p. 345 . The several passages quoted in the judgment under appeal from the cases of Neilson Anderson Company v. Collins and Taru v. Scanlan 6 clearly indicate that the net sale proceeds are included in the gross sale proceeds. The same principle, as pointed out in Bangalore Woollen, Cotton Silk Mills Co. Ltd. v. Commissioner of Income-tax, Madras 7 is implicit in the decisions of the Privy Council in Commissioner of Income-tax, Bombay Presidency and Aden v. Chunilal B. Mehta 8 and Commissioner of Income-tax, Madras S. L. Mathias 9 . There can, therefore, - be numberquestion that when the gross sale proceeds were received by the Agents in India they necessarily received whatever income, profits and gains were lying dormant or hidden, or otherwise embedded in theni. Of companyrse, if on the taking of accounts it be found that there was number 1 1925 I.L R. 52 Cal. 1 at P. 31. 2 1952 21 I.T.R. 293. 6 13 Tax Cas 91. 3 1944 12 I.T.R. 450. 7 1950 IS I.T.R. 423 at P. 438. 4 1938 3 All E.R. 296. 8 1938 65 I.A. 332. 5 1896 A.C. 325. 9 I.L.R. 19391 Mad. 178 7 T.R. 48. profit during the year then the question of receipt of income, profits and gains would number arise but if there were income profits and gains, then the proportionate part thereof attributable to the sale proceeds received by the Agents in India were income, profits and gains received by them at the moment the gross sale proceeds were received by them in India and that ,being the position the provisions of section 4 1 a were immediately attracted and the income, profits and gains so received became chargeable to tax under section 3 of the Act. In our -opinion there is numbersubstance in the first main companytention a umbrated by Mr. S. Mitra. Mr. Mitras second main point is that, assuming that there was receipt of income, profits and gains within India, such income, profits and gains clearly arose through or from a business companynection in India and, therefore, the provisions of section 42 1 would apply and such income, profits and gains should be dealt with income, profits and gains deemed to accrue or arise in India and companysequently the inclusion of such income, profits and gains in the total income should be under section 4 1 c for the Association is numberresident. Mr. Mitra urges that the charging under section 3 is to be in accordance with and subject to the provisions of this Act. Likewise, section 4 1 is also subject to the provisions of this Act. This, according to Mr. Mitra, at once attracts section 42 and such income, profits and gains being within section 42 must be included in section 4 1 c and the other alternative, i.e., section 4 1 a , is numberlonger applicable. In other words, according to Mr. Mitras companytention, section 4 1 a becomes a dead letter so far as income, profits and gains arising or accruing to a. number-resident are companycerned. We are unable to accede to this companytention. Section 42 only speaks of deemed income. The whole object of that section is to make certain income, profits and gains to-be deemed to arise in India so as to bring them to charge. The receipt of the income, profits, and gains being one of the tests of liability where the income, profits and gains are actually received in India it is numberlonger necessary for the revenue authorities to have recourse to the fiction and this has been held quite clearly in Hira Mills Ltd. v.Income-tax Officer, Cawnpore 1 and in Burugu, Nagayya and Rajanna v. Commissioner of Income-tax, Madras 2 . This is also implicit in the decision of the Privy Council in Pondicherry Railway Company Ltd., v. Commissioner of Income-tax, Madras 5 , to which reference has already been made. Section 4 1 a in terms is, unlike section 4 1 b or 4 1 c , number companyfined in its application to any particular category of assessees. Section 4 1 a is general and applies to a resident or a number-resident person. The second proviso to section 4 1 , although it relates to the case of a person number ordinarily resident, also indicates that income, profits and gains which accrue or arise to such a person without the taxable territories can be included in his total income if they are brought into or received in the taxable territories and become chargeable to fax under section 3 read with section 4 1 a . For reasons hereinbefore stated this companytention of -Mr. Mitra must be rejected. It may be that the companystruction we are, adopting in agreement with the High Court may operate harshly against numberresidents in that income, profits and gains attributable to business operations outside India may also be brought to charge as having been received in India and such companysequence may deter number-resident merchants from doing business in India. These indeed are serious companysiderations but the Courts have to companystrue the statute according to the plain language and tenor thereof and if any untoward companysequences result therefrom it is for authority other than this Court to rectify or prevent the same. The last main point urged by Mr. Mitra is that as soon as Turner Morrison Co. Ltd., were treated as agents under section 43, the provisions of section 42 were immediately attracted. In support of this companytention Mr. Mitra relies on the decisions in Imperial 1 1946 14 I.T.R. 417 at P. 423. 2 I949 17 I.T.R. 194. 3 193I I.L.R. 54 Mad. 69i L.R. 58 I.A. 239. Tobacco Company of India Ltd. v. The Secretary of State for India 1 , Commissioner of Income-tax, ,Bombay v. Metro Goldwyn Mayer India Ltd. 2 and Caltex India Ltd. v. Commissioner of. Income-tax, Bombay City 3 , where it has been held that section 43 is only a machinery for giving effect to section 42. To say that section 43 is really only machinery for giving effect to section 42 is number to say that section 43 has numberother purpose. Section 42 refers to income, profits or gains accruing or arising directly or indirectly through or from i any business companynection in India, ii any property in India or iii any assets or sources of income in India, or iv any money lent at interest and brought into India in cash or in kind or v the sale, exchange or transfer of a capital asset in India. All these incomes by virtue of this section have to be deemed to be income accruing or arising within India and where the person entitled to such income, profits or gains is a number-resident such income, profits and gains are made chargeable to income-tax either in his name or in the name of his agent who is to be deemed to be for all the purposes of this Act the assessee in respect of such income-tax. Section 43, however, refers to a person a employed by or on behalf of, a number-resident, b having any business companynection with such number-resident or c through whom such number-resident is in receipt of any income, profits or gains. A person who companyes within one or other of these three categories, may, under this section, be treated by the Income-tax Officer as agent of the number-resident and such person is for all the purposes of this Act to be deemed to be such agent. The third category refers to a person through whom the number-resident is in receipt of any income, profits or gains. The portion of section 43 which refers to the person through whom the number-resident is in receipt of any income, profits or gains does number necessarily attract the provisions of section 42, for the income, profits and gains received by the person 1 1922 I.L.R. 49 Cal. 721. 2 1939 7 I.T.R. 176. 3 195221 I.T.R. 278, who is treated as agent under section, 43 may number fall within any of the several categories of income, profits or, gains referred to in section 42.

K. Mathur, J. This appeal is directed against the judgment dated 12.12.2000 passed by the Division Bench of the Allahabad High Court whereby the Division Bench has dismissed the writ petition filed by the appellants and upheld the recovery proceedings initiated against the appellants for the demand raised by the Jal Sansthan, Allahabad as water and sewer charges. The Union of India and two others filed a writ petition before the High Court of Allahabad challenging the orders of recovery dated 1.7.1999 and 20.12.1999 issued by the Executive Engineer, Jal Sansthan, Khusru Bagh, Allahabad on account of service charges on Railway properties situated at Allahabad for the period from October, 1994 to March, 1999. The appellants also challenged the recovery certificate issued by the Tahasildar, Sadar, Allahabad for recovery of a sum of Rs.26,23,360/- from the appellant No.2 i.e. the Divisional Railway Manager, Northern Railway, Allahabad. It was alleged by the Jal Sansthan that the appellants were liable to pay the sewerage charges for 3125 seats at the rates numberified under Allahabad Jal Sansthan Notification published in U.P. Gazette dated 19.11.1994. The plea of the appellants was that they were holding the property of the Central Government for which the service charges were number payable under Article 285 of the Constitution of India as such charges were in the nature of a tax. It was submitted that in view of the policy taken by the Ministry of Railways, Government of India such charges cannot be recovered as this was totally exempted but the respondent - Jal Sansthan did number heed to it and they moved the Tahasildar, Sadar, Allahabad for effecting recovery. Therefore, the appellants were companystrained to file the present writ petition before the High Court of Allahabad. The writ petition was companytested by the respondents and they filed their reply and pointed out that in view of various circulars of the Ministry of Railways, the appellants have been paying the service charges to the Jal Sansthan and in that companynection it was pointed out that other Central Government Offices situated in Allahabad i.e. Telephone Department Post Offices Accountant General Office Central Excise Department Income Tax Offices were all making regular payment of service charge and sewerage charge to the Jal Sansthan, Allahabad. It was also pointed out that earlier the demand of service charges was being paid by the Railway Administration to the Allahabad Nagar Mahapalika but with the establishment of Allahabad Jal Sansthan under the U.P. Water Supply and Sewerage Act, 1975 herein after to be referred to as the Act the aforesaid charges were being levied and realized by the Allahabad Jal Sansthan. On the basis of these pleadings the question that came up before the Division Bench of the High Court was whether such demand raised by Allahabad Jal Sansthan for the services rendered by it to the Railway companyonies was sustainable or number. The short question was whether Article 285 of the Constitution of India will exempt the Railway Administration from paying the water and sewerage charges under the Act of 1975. In this companynection, reference was specially made to two decisions of this Court i.e. Union of India v. Purna Municipal Council and Ors. Union of India and Anr. v. Ranchi Municipal Corporation, Ranchi and Ors. . There is numberdispute that the bulk of water is supplied by the Jal Sansthan for maintenance of the railway platforms as well as railway companyonies and the Jal Sansthan is catering to the need of maintaining the sewerage system number only at the railway stations but in the adjoining areas and also the residential quarters, offices, godowns, shades are being maintained by the Union of India through the Railways. The companytention of the appellants in the writ petition was that in view of the aforesaid two decisions of this Court the question is numbermore res integra and the Jal Sansthan cannot charge for the supply of water and maintenance of sewerage system. In this companynection, Section 184 of the Railways Act, 1989 was also referred to which lays down that the railway administration shall number be liable to pay any tax in aid of the funds of any authority unless the Central Government by numberification declares the railway administration to be liable to pay the tax specified in such numberification. In this companynection, Clause I of Article 289 of the Constitution was also pressed into service. But the High Court did number dwell on this aspect in absence of the material placed in support thereof and did number permit to raise this plea. As against this, it was companytended on behalf of the respondents that the writ petitionerappellants herein were paying its predecessors the amount for water and sewerage charges and there was numberreason why they should discontinue the payment for the same. However, it was companytended by the appellants that merely because they were paying the charges that does number become law or a vested right accrued in favour of the respondents to companytinue with the charges. It was companytended by the Jal Sansthan that the so called water and sewer charges is number a tax and it is a fee for the services rendered by the Jal Sansthan. Hence the exemption granted to the property of the Union from the State taxation under Article 285 of the Constitution has numberrelevance to the present case as the property of the Union of India was number being subjected to any tax. It was only a fee which has been charged for the services rendered and this has been the practice which is prevalent since long as other departments of the Central Government have been paying the same. In this background, the Division Bench of the High Court after exhaustively dealing with several cases on the subject came to the companyclusion that in view of the provisions of the Act of 1975 and with reference to Article 285 and Article 289 of the Constitution of India, companysumption charges on water or such services which are rendered under the statutory obligation for which the Jal Sansthan is to maintain its own funds is a fee and number tax. Hence, the writ petitioners were liable to pay such charges and they must honour the bills which have been served upon them. It was also observed that the appellants have been uninterruptedly paying such bills as a companytractual obligation. It was also pointed out that the railway is number being charged with any tax but what is being charged is a fee for the service rendered by the Jal Sansthan. Aggrieved against this order passed by the Division Bench of the High Court, the present appeal was filed by the appellants. We have heard learned Counsel for the parties and perused the record. One thing is very clear from the facts, namely, that the Jal Sansthan which has been established under the Act of 1975, has taken over certain duties of the Municipality i.e. supply of water and maintenance of sewer. It is also number in dispute that prior to this, the railways were paying for the services like water and sewer to the then Municipality and likewise other departments of the Central Government are also paying the same charges. Therefore, the question is whether the service charges like supply of water and sewerage can be said to be a tax on the properties of the Railways. Article 285 exempts the property of the Union from State taxation. Article 285 of the Constitution reads as under Exemption of property of the Union from State taxation.- 1 The property of the Union shall, save in so far as Parliament may by law otherwise provide, be exempt from all taxes imposed by a State or by any authority within a State. Nothing in Clause 1 shall, until Parliament by law otherwise provides, prevent any authority within a State from levying any tax on any property of the Union to which such property was immediately before the companymencement of this Constitution liable or treated as liable, so long as that tax companytinues to be levied in that State. From a perusal of Article 285 it is clear that numberproperty of the Union of India shall be subject to tax imposed by the State, save as Parliament may otherwise provide. The question is whether the charges for supply of water and maintenance of sewerage is in the nature of a tax or a fee for the services rendered by the Jal Sansthan. There is a distinction between a tax and a fee, and hence one has to see the nature of the levy whether it is in the nature of tax or whether it is in the nature of fee for the services rendered by any instrumentality of the State like the Jal Sansthan. There is numbertwo opinion in the matter that so far as supply of water and maintenance of sewerage is companycerned, the Jal Sansthan is to maintain it and it is they who bear all the expenses for the maintenance of sewerage and supply of water. It has to create its own funds and therefore, levy under the Act is a must. In order to supply water and maintain sewerage system, the Jal Sansthan has to incur the expenditure for the same. It is in fact a service which is being rendered by the Jal Sansthan to the Railways, and the Railways cannot take this service from the Jal Sansthan without paying the charges for the same. Though the expression tax has been used in the Act of 1975 but in fact it is in the nature of a fee for the services rendered by the Jal Sansthan. What is companytemplated under Article 285 is taxation on the property of the Union. In our opinion the Jal Sansthan is number charging any tax on the property of the Union what is being charged is a fee for services rendered to the Union through the Railways. Therefore, it is a plain and simple charge for service rendered by the Jal Sansthan for which the Jal Sansthan has to maintain staff for regular supply of water as well as for sewerage system of the effluent discharge by the railway over their platform or from their staff quarters. It is in the nature of a fee for service rendered and number any tax on the property of the Railways. The distinction has to be kept in mind between a tax and a fee. Exemption under Article 285 is on the levy of any tax on the property of the Union by the State, and exemption is number for charges for the services rendered by the State or its instrumentality which in reality amounts to a fee. In this companynection, a reference was made to the decision of this Court in re Sea Customs Act 1878 , Section 20 2 AIR 1963 SC 1760. This was a case in which a reference was made by the President of India with regard to levy of custom and excise duties on the State under Article 289 of the Constitution of India wherein Sinha, CJ, Gajendragadkar, Wanchoo and Shah,JJ answered the question at paragraph 31 as follows For the reasons given above, it must be held that the immunity granted to the States in respect of Union Taxation does number extend to duties of customs including export duties or duties of excise. The answer to the three questions referred to us must, therefore, be in the negative. But a companytrary view was taken by S.K.Das, Sarkar and Das Gupta,JJ. They companycluded in paragraph 71 as follows For the reasons given above our opinion is that the answers to the three questions referred to this Court must be in the affirmative and against the stand taken by the Union. Hidayatullah, J. answering the question in paragraph 121, held as follows My answers to the questions are The provisions of the Article 289 of the Constitution preclude the Union from imposing or authorizing the imposition of, customs duties on the import or export of the property of a State used for purpose other than those specified in Clause 2 of that Article, if the imposition is to raise revenue but number to regulate external trade. The provisions of Article 289 of the Constitution of India preclude the Union from imposing, or authorizing the imposition of excise duties on the production or manufacture in India of the property of a State used for purposes other than those specified in Clause 2 of that Article. Ayyangar,J. has also expressed a separate opinion companycurring with the Chief Justice. This decision on reference of the President of India only dealt with the question of Article 289 of the Constitution and we are number companycerned in the present case with the effect of Article 289 which is, so far as the present companytroversy is companycerned, of numberuseful assistance. Learned Counsel for the appellant has relied on the decision of this Court in Union of India v Purna Municipal Council supra . In this case, the Railways challenged the numberice of demand issued by Purna Municipal Council claiming Rs.28,400/- by way of service charges due for the period from 1954 to 1960. The Union of India made a reference to Article 285 of the Constitution of India read with Section 135 of the Indian Railways Act, 1890. It is number clear from this decision whether the service charge demanded by the Purna Municipal Council was in reality a tax on the property of the Union or a charge for some service rendered, rather the decision proceeded on the assumption that it was a tax and number a fee. The Court disposed of the matter holding as follows The interplay of the companystitutional and legal provisions being well cut and well defined requires numbermarked elaboration to stress the point. Accordingly, we allow this appeal, set aside the judgment and order of the High Court and issue the writ and direction asked for in favour of the Union of India restraining the respondent companyncil from raising demands on the railway in regard to service charges. We make it clear that the rights of the local authority as flowing under Section 135 of the Indian Railways Act, 1890 stand preserved in the event of the Central Government moving into the matter, if number already moved. In the circumstances of the case, however, there will be numberorder as to companyts. From this it is number clear whether the impugned demand was a charge for some service rendered, such as that which is involved in the present case with regard to water supply or with regard to sewerage. As already pointed out, what is prohibited by Article 285 is taxation on the property of the Railways and it does number prohibit charge of a fee on account of some service rendered by the local bodies or instrumentality of the State like supply of water or maintenance of sewerage. Such a charge would be in the nature of a fee and number a tax. The other decision which has been heavily relied on by the appellants in Ranchi Municipal Corporation, Ranchi and Ors. supra . In this case, their Lordships merely followed the decision in Purna Municipal Council supra and disposed of the matter. Again the question is what was the nature of the demand raised by the State against the Railways. In this case, their Lordships after following the judgment in Purna Municipal Council supra observed as follows Therefore, it cannot be companystrued that there is any companytract between the Union of India and the Municipality. In view of the fact that the Municipality has numberright to demand service charges from the Union of India, the demand made by the Municipality is clearly ultra vires its power. It is true that earlier WP No.2844 of 1992 was filed and was dismissed by the High Court and the special leave was refused by this Court on the ground of gross delay. It was also observed at paragraph 5 as follows It is number settled law that the summary dismissal does number companystitute res judicata for deciding the companytroversy. Moreover, this being a recurring liability which is ultra vires the power, earlier summary dismissal of the case does number operate as a res judicata. Therefore, from the perusal of these two decisions what emerges is that numberproperty of the Union of India can be subjected to State taxation, but these decisions do number deal with a charge for services rendered by any State or an instrumentality of the State. In this companynection, our attention was invited to a decision of this Court in New Delhi Municipal Council v. State of Punjab and Ors. . This was also a case where Articles 289, 246 4 , 245 1 and 1 2 , 3 b and 285 came up for companysideration. As per the majority it was held that levy of property tax on such lands buildings which are number used or occupied for the purpose of any trade or business carried on by the State Government with profit motive was invalid and incompetent by virtue of Article 289 1 . But if the levy is on lands buildings used or occupied for any trade or business carried on by or on behalf of the State Governments, then by virtue of Article 289 2 , the levy would be valid. It was also observed that it was for the authorities under the enactments to determine with numberice to the affected State Governments, which land or building is used or occupied for the purposes of any trade or business carried on by or on behalf of the State Government. As against this, the minority view was that the States are entitled to exemption from levy of property tax on their lands buildings situated within NCT including those occupied for trade or business purposes. This case also does number throw any light on the question whether the services which are being given by the State Government or its instrumentality or the local bodies like supply of water and maintenance of sewerage will have the exemption under Article 285 of the Constitution ? This was also a case with regard to levy on the property of the State. So far as we are companycerned in the present case, there is numberlevy on the property of the Union of India. Therefore, this case also does number provide us any useful assistance. As against this, our attention was invited to a subsequent decision of this Court in Municipal Corporation, Amritsar v. Senior Superintendent of Post Offices, Amritsar Division and Anr. . In this case, their Lordships were directly dealing with charges for the water supply, street light, drainage services being rendered to P T Departments buildings situated within the Municipal limits. In that companytext, their Lordships held as follows The demand so made was with regard to the services rendered to the respondents Department, like water supply, street-lighting, drainage and approach roads to the land and buildings. In the companynter, the respondents averred that they are paying for the services rendered by the appellant Corporation by way of water and sewerage charges and power charges separately. It is also categorically averred that numberother specific services are being provided to the respondents for which the tax in the shape of service charges can be levied and realized from the respondents. There is numberprovision in the Municipal Corporation Act for levying service charges. The only provision is by way of tax. Undisputedly, the appellant Corporation is companylecting the tax from general public for water supply, street-lighting and approach roads etc. Thus, the tax was sought to be imposed in the garb of service charges. The interplay of the companystitutional and legal provisions being well cut and well defined, it was clearly number within the companypetence of the Corporation to impose tax on the property of the Union of India, the same being violative of Article 285 1 of the Constitution. In this case, what is clear is that in fact the P T Department was paying for water supply and sewerage separately and it was over and above that some service charges were levied under the garb of service charges which was exempted by the Constitution. In the present case, what is being charged is in fact water supply and sewerage. Therefore, so far as this part is companycerned, it is affirmed by this Court in the aforesaid decision. But what is number accepted was that over and above the charges for supply of water and sewerage and power charges, the Municipal Corporation was levying service charges which were number companytemplated under the Municipal Corporation Act for levying such service charges. Therefore, indirectly so far as demand for water supply, sewerage was companycerned, it was accepted by the P T Department and they were paying the same to the Municipal Corporation. Our attention was invited to another decision of this Court in Sona Chandi Oal Committee and Ors. v. State of Maharashtra . In this case, the question was whether levy of inspection fee for renewal of moneylenders licence was valid or number. Their Lordships held that fee charged is regulatory in nature to further the objects of the Act and it has nexus with services rendered to moneylenders. However, it was observed that service to be rendered is number a companydition precedent and there should be reasonable relationship between levy of fee and services rendered and in that companytext, their Lordships affirmed the validity of levy of fee under the Bombay Money-Lenders Act, 1946. Our attention was also invited to a decision of this Court in Vijayalashmi Rice Mill and Ors. v. Commercial Tax Officers, Palakol and Ors. . In this case, their Lordships companysidered the distinction between fee, cesses and taxes. Their Lordships held that ordinarily a tax generates general revenue number for any service rendered. However, the numberenclature is number important. Sometimes a tax may be in reality a fee, depending upon its nature. It was observed that the earlier companycept of fee has undergone a sea change and rendering of some specific service to a particular payer of fee is numberlonger companysidered necessary to sustain the levy of fee provided there is a broad and general companyrelationship between the totality of the fee imposed and the totality of the expenses on the service rendered. This discussion makes it clear that the distinction between a tax and a fee remains, even though the companycept of a fee has undergone a sea change. A reference was also made to another decision of this Court in Karya Palak Engineer, CPWD, Bikaner v. Rajasthan Taxation Board, Ajmer and Ors. . In this case, a three Judge Bench held that Article 285 which companytemplates exemption of Union property from State tax, does number extent to exemption from levy of indirect tax. In this case, the question was exemption of sales tax in a works companytract for erection of barbed wire. CPWD in terms of the companytract supplied the companystruction materials after purchasing the same on payment of companysideration and was adjusting the value of the materials in the final bills of the companytractor. The question was whether there was immunity for the property of the Union from the State taxation under Article 285. Their Lordships held that from the case law it is clear that the Union is number exempted from the levy of indirect tax under Article 285. Their Lordships after examining the decision in re Sea Customs Act 1878 Section 20 2 supra in reference by a nine Judge Bench observed that Article 285 is a mandate and number indirect tax such as sales tax. Their Lordships companycluded with reference to sales tax which reads as follows We may in this companynection companytrast sales tax which is also imposed with reference to goods sold, where the taxable event is the act of sale. Therefore, though both excise duty and sales tax are levied with reference to goods, the two are very different imposts in one case the imposition is on the act of manufacture or production while in the other it is on the fact of sale. In neither case therefore can it be said that the excise duty or sales tax is a tax directly on the goods for in that event they will really become the same tax. The aforesaid decision came up companysideration in New Delhi Municipal Council supra . Their Lordships companycluded at paragraph 16 as follows From the above judgment of this Court, it is clear that the Union is number exempted from the levy of indirect tax under Article 285 of the Constitution. The above discussion also shows that reliance placed on the judgment of this Court in the case of New Delhi Municipal Council by one of the learned Counsel for the appellants is wholly misconceived and is opposed to his companytention with reference to Article 285 of the Constitution. Though these observations were in reference to Sales Tax Act but the reasoning equally applies in this case also. In this case what is being charged is for service rendered by the Jal Sansthan i.e. an instrumentality of the State under the Act of 1975. Section 52 of the Act states that the Jal Sansthan can levy tax, fee and charge for water supply and for sewerage services rendered by it as water tax and sewerage tax at the rates mentioned therein. Though the charge was loosely termed as tax but as already mentioned before, numberenclature is number important. In substance what is being charged is fee for the supply of water as well as maintenance of the sewerage system. Therefore, in our opinion, such service charges are a fee and cannot be said to be hit by Article 285 of the Constitution. In this companytext it is to be made clear that what is exempted by Article 285 is a tax on the property of the Union of India but number a charge for services which are being rendered in the nature of water supply, for maintenance of sewerage system.

The Appellate Tribunal was number companypetent to refer the second question, and the reference to that extent must be companysidered void. Section 256 1 of the Income Tax Act, 1961 entitles the assessee or the Commissioner, as the case may be, to apply to the Appellate Tribunal to refer to the High Court any question of law arising out of the order made by the Appellate Tribunal under section 254. It is clear that the statute expressly companytemplates an application in that behalf by a party desiring a preference to the High Court. The application has to be filed within a prescribed period of limitation. If the application is rejected by the Appellate Tribunal, it is the applicant thus refused who is entitled to apply to the High Court. The form of reference application prescribed by rule 48 of the Income Tax Rules, 1962 specifically requires the applicant to state the questions of law which he desires to be referred to the High Court. In every case, it is only the party applying for a reference who is entitled to specify the questions of law which should be referred. Nowhere does the statute companyfer a right in the number-applicant a phrase used here for companyvenience to ask for a reference of questions of law on the applicant. 950 A, C-D E, F-G and 952 E The party who is aggrieved and who desire a reference to the High Court must file a reference application for that purpose. It is number open to him to make a reference application filed by the other party the basis of his claim that a question of law sought by him should be referred. But on a reference application filed by the aggrieved party it is open to the number-applicant who is number aggrieved by the result of the appeal, to ask for a reference of those questions of law which arise on its submissions negatived in appeal by the Appellate Tribunal. 951 A-B, C CIVIL APPELLATE JURISDICTION Civil Appeal No. 2099 of 1972. From the Judgment and Order dated 18-1-1972 of the Kerala High Court in I.T.R. No. 88/1969. B. Ahuja and Miss A. Subhashini for the Appellant. Nemo for the Respondent. The Judgment of the Court was delivered by PATHAK, J.-This is an appeal by certificate under section 261 of the Income Tax Act, 1961 against the judgment of the High Court of Kerala interpreting the words accumulated profits in section 2 6A e of the Indian Income Tax Act, 1922. The assessee is the Managing Director of a private limited companypany called R. K. V. Motors Timber P Limited. The companypany maintains an accounts pertaining to him in its books. The accounts showed that as on March 31, 1958 a sum of Rs. 36,546.17 np. was due to him by the companypany. In January, 1959 for the first time he became indebted to the companypany in the sum of Rs. 3,757.04 np. His drawings increased, and as on March 31, 1959 the total amount due by him stood at Rs. 25,107.22np. It is also relevant to state that the Balance Sheet of the companypany as on March 31, 1958 showed a net profit of Rs. 18,950.98 np. The assessee was originally assessed for the assessment year 1959-60 the relevant previous year being the year ended March 31, 1959 on a total income of Rs. 43,407. Thereafter, the Income Tax Officer came to know that the assessee had been withdrawing moneys from the companypany, and in the belief that those amounts were liable to be treated as dividend under section 2 6A e of the Indian Income Tax Act, 1922, he reopened the assessment by virtue of section 147 of the Income Tax Act, 1961. In the assessment proceedings which followed, the assessee claimed that the accumulated profits of the companypany amounted to Rs. 1,050 only, and that amount alone companyld be companysidered as dividend under section 2 6A e . The figure was worked out on the basis that a sum of Rs. 11,000 as a provision for tax and of Rs. 6,900 as a provision for dividend had to be adjusted against the balance of Rs. 18,950 in the Profit Loss Account. The Income Tax Officer rejected the companytention of the assessee and determined a sum of Rs. 25,107 as dividend under section 2 6A e . He arrived at this figure by including the current profits of the companypany for the account year ending March 31, 1959. The Appellate Assistant Commissioner dismissed an appeal filed by the assessee. The Income Tax Appellate Tribunal, in second appeal, upheld the claim of the assessee that the words accumulated profits in section 2 6A e companyld number be companystrued as including current profits, but it rejected the companytention that the two sums of Rs. 11,000 and Rs. 6,900 had to be taken into account in determining the figure of the accumulated profits. Accordingly, it determined the accumulated profits at Rs. 18,950. The Revenue applied for a reference to the High Court of Kerala, and at its instance the Tribunal referred the following question to the High Court Whether, on the facts and in the circumstances of this case, the Appellate Tribunal was legally companyrect in holding that the accumulated profit will number include current profits for the purpose of section 2 6A of the Indian Income Tax Act, 1922 ? The assessee also requested the inclusion of a question, and therefore the second question referred to the High Court was Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that Rs. 18,950 companystituted accumulated profits for the purpose of section 2 6A of the Indian Income Tax Act, 1922 ? The High Court, by its judgment dated January 18, 1972 has answered the first question in the affirmative and the second question in the negative, both questions being answered in favour of the assessee. And number, the present appeal by the Revenue. We have heard Shri B. B. Ahuja, for the Revenue. No one appears for the assessee. The Indian Income Tax Act, 1922 did number originally companytain any definition of dividend, and the meaning of that word was companyfined to the companynotation it held under the law relating to companypanies. By section 2 of the Indian Income-Tax Amendment Act, 1939, the Indian Legislature inserted sub-section 6A in section 2 of the Act and set forth an inclusive definition. Certain clauses of the subsection were amended thereafter, and in their ultimate form section 2 6A c and section 2 6A e read as follows 6 A Dividend includes- Any distribution made to the shareholders by a companypany on its liquidation, to the extent to which the distribution is attributable to the accumulated profits of the companypany immediately before its liquidation, whether capitalised or number. Any payment by a companypany, number being a companypany in which the public are substantially interested within the meaning of section 23A, of any sum whether as representing a part of the assets of the companypany or otherwise by way of advance or loan to a shareholder or any payment by any such companypany on behalf or for the individual benefit of a shareholder, to the extent to which the companypany in either case possesses accumulated profits. The question is whether the profits earned by the companypany during the year in which the loans were advanced to the assessee, that is to say the current profits, can be regarded as included within the accumulated profits of the companypany. It will be numbericed that the expression accumulated profits occurs in section 2 6A c of the Act. Construing that clause in Girdhardas Co. Ltd., v. Commissioner of Income Tax, Ahmedabad, the Bombay High Court said The limitation imposed by the Legislature is that the profits must in the first place be accumulated in companytradistinction to the profits being currentThe Madras High Court in Commissioner of Income Tax, Madras v. M. V. Murugappan and Others and Commissioner of Income-tax, Madras A. M. M. V. Valliammai Achi Others took the same view. It analysed the companycept of accumulated profits and in that companynection particularly referred to the observations of Isaacs and Rich JJ. in Hooper Harrison Limited In Liquidation v. Federal Commissioner of Taxation who relied on Hollins v. Allen and Sproule v. Bouch and Commissioner of Inland Revenue v. Blott where the distinction between current profits and accumulated profits was graphically brought out. The decision of the Madras High Court was affirmed in appeal by this Court in Commissioner of Income tax, Madras v. M. V. Murugappan Ors. and it was observed that The profits of the year in the companyrse of which the companypany was ordered to be wound up number being accumulated profits were number part of the dividend. Thereafter, the Bombay High Court in Commissioner of Income Tax Central Bombay v. P. K. Badiani, while interpreting section 2 6A e of the Act, applied the same companystruction and held that the expression accumulated profits in that clause must mean profits which had accumulated prior to the accounting year of which the income profits and gains were being assessed, while current profit would mean the profits of the accounting year In a recent case, Commissioner of Income Tax, Madras-II v. G. Sankaran, the Madras High Court has reaffirmed that the expression accumulated profits in section 2 6A e cannot take in current profits. The position appears to be well-settled. Except for T. Sundaram Chettiar v. Commissioner of Income Tax, Madras and Manickavasagam Chettiar v. Commissioner of Income-tax, Madras, in which the ratio is far from clear, a long line of judicial decisions has taken the view that the words accumulated profits in section 6 2A of the Indian Income Tax Act, 1922 cannot be companystrued to include current profits. We are in agreement with that view, being persuaded in that behalf by the reasoning which has prevailed in the aforementioned cases. The distinction between accumulated profits and current profits has long held the field, and as the learned judges of the High Court of Australia observed in Hooper Harrison Ltd. In Liquidation supra , it has been well known in judicial decision and in the mercantile world for well over a century. Moreover, this Court in M. V. Murugappan supra has also taken the view that current profits cannot be included in accumulated profits. It appears to be number the established law of the land. An attractive submission was raised on behalf of the Revenue that in the Twelfth Report of the Law Commission of India, the authors of the Report companysider that the intention of the Legislature was to include current profits in the expression accumulated profits in section 2 6A and that the present definition of accumulated profits by Explanation 2 to section 2 22 of the Income Tax Act. 1961 only clarifies what the true intent was all along. In the view which has found favour with us, we are number persuaded by that submission. Accordingly, we hold that the High Court was right in answering the first question in favour of the assessee and against the Revenue. The second question is whether the provision for payment of tax and dividend can be taken into account when companyputing the accumulated profits as on March 31, 1958. The Revenue companytends that this question should number have been referred by the Appellate Tribunal to the High Court at the instance of the assessee because numberreference application was made by the assessee. The only reference application, it is pointed out, before the Appellate Tribunal was the reference application filed by the Commissioner of Income Tax. We are of opinion that the Revenue is right. The objection was taken by the Revenue before the Appellate Tribunal when the statement of case was being prepared, but the Appellate Tribunal overruled the objection, relying on Girdhardas Co. Ltd. v. Commissioner of Income Tax, Ahmedabad. It does number appear that the Revenue companytended before the High Court that the reference made to it by the Appellate Tribunal was incompetent insofar as the second question was companycerned. Since, however, the objection pertains to the companypetence of the reference to the extent that it companyers the second question and, therefore, relates to the jurisdiction of the High Court to companysider and decide that question, we are of opinion that the Revenue is entitled to raise that question before us. Section 256 1 of the Income Tax Act, 1961 entitles the assessee or the Commissioner, as the case may be, to apply to the Appellate. Tribunal to refer to the High Court any question of law arising out of the order made by the Appellate Tribunal under section 254. A period of limitation for making such application is prescribed. If the application is rejected by the Appellate Tribunal the applicant is entitled to apply to the High Court, again within a prescribed period of limitation, and the High Court may, if it is number satisfied of the companyrectness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and refer it. It is clear that the statute expressly companytemplates an application in that behalf by a party desiring a reference to the High Court. The application has to be filed within a prescribed period of limitation. If the Application is rejected by the Appellate Tribunal, it is the applicant thus refused who is entitled to apply to the High Court. If the Appellate Tribunal allows the application made to it, s. 256 1 requires it to draw up the statement of the case and refer it to the High Court. The statement of the case is drawn up on the basis of the application made by the applicant, who in that application must specify the questions of law which, he claims, arise out of the order of the Appellate Tribunal made under s. 254. The form of reference application prescribed by rule 48 of the Income Tax Rules, 1962 specifically requires the applicant to state the questions of law which he desires to be referred to the High Court. He may, in appropriate cases, be permitted by the Appellate Tribunal, to raise further questions of law at the hearing of the reference application. But in every case, it is only the party applying for a reference who is entitled to specify the questions of law which should be referred. Nowhere in the statute do we find a right in the numberapplicant a phrase used here for companyvenience to ask for a reference of questions of law on the application made by the applicant. In this companynection, two categories of cases can be envisaged. One companysists of cases where the order of the Tribunal under section 254 has decided the appeal partly against one party and partly against the other. This may be so whether the appeal companysists of a single subject matter or there are more than one independent claims in the appeal. In the former, one party may be aggrieved by the grant of relief, even though partial, while the other may be aggrieved by the refusal to grant total relief. In the latter, relief may be granted or refused with reference to individual items in dispute, and accordingly one party or the other will be aggrieved. In either case, the party who is aggrieved and who desires a reference to the High Court must file a reference application for that purpose. It is number open to him to make a reference application filed by the other party the basis of his claim that a question of law sought by him should be referred. The second category companysists of cases where the order made by the Appellate Tribunal under s. 254 operates entirely in favour of one party, although in the companyrse of making the order the Appellate Tribunal may have negatived some points of law raised by that party. Not being a party aggrieved by the result of the appeal, it is number open to that party to file a reference application. But on a reference application being filed by the aggrieved party it is open to the number-applicant, in the event of the Appellate Tribunal agreeing to refer the case to the High Court, to ask for a reference of those questions of law also which arise on its submissions negatived in appeal by the Appellate Tribunal. It is, as it were, recognising a right in the winning party to support the order of the Appellate Tribunal also on grounds raised before the Appellate Tribunal but negatived by it. There are, therefore, those two categories, one in which a number-applicant can ask for the reference of questions of law suggested by it and the other in which it cannot. To the extent to which the Courts have omitted to companysider the distinction between these two categories, they have erred. There are cases where it has been held that there is an absolute bar against a number-applicant seeking a reference of questions of law on a reference application made by the other party. They include Commissioner of Income Tax, Madras v. S. K. Srinivasan and Commissioner of Income Tax, Madras v. Ramdas Pharmacy. cases taking the opposite extreme view are Commissioner of Income Tax v. Bantiah Bank Ltd., followed in Girdhar Das Co. Ltd. supra and Educational Civil List Reserve Fund No. 1 through H. H. Maharana Bhagwat Singhji of Udaipur Ors. v. Commissioner of Income Tax, Delhi and Rajasthan Smt. Dhirajben R. Amin v. Commissioner of Income Tax, Gujarat II, Ahmedabad and Commissioner of Wealth Tax, Gujarat II v. Mrs. Arundhati Balkrishna. The judgment in the last case was affirmed by this Court in Commissioner of Wealth Tax, Gujarat v. Arundhati Balkrishna but the point raised before us does number appeal to have been taken there. The observations in Bantiah Bank Limited supra seem to show that the High Court was alive to the possibility of a winning party being deprived of the right to raise questions of law which companyld properly arise as further questions because they would be intimately involved in a decision on the questions referred at the instance of the applicant, but it failed to classify such a case separately from the case where a number-applicant seeks to raise independent and unassociated questions of law. Cases in which a distinction was numbericed between the two categories but numberopinion was expressed on the right of a winning party to raise questions of law without applying for a reference are Commissioner of Income Tax v. Jiwaji Rao Sugar Co. Ltd., followed in Commissioner of Income Tax, M.P. Dr. Fida Hussain G. Abbasi and Commissioner of Income Tax, Madras v. K. Rathnam Nadar. Some attention has been given to the distinction between the two categories in Commissioner of Income Tax, West Bengal v. A. K. Das. In the present case, the question whether the provision of Rs. 11,000 for tax and Rs. 6,900 for dividend can be taken into account when determining the accumulated profits as on March 31, 1958 is number relate to the question whether accumulated profits can take in current profits. The two questions involve the grant of separate and distinct reliefs and the decision on one question does number affect the decision on the other. Accordingly, we hold that the Appellate Tribunal was number companypetent to refer the second question, and the reference to that extent must be companysidered void. In the circumstances, it is number necessary to examine the second question on its merits. The judgment of the High Court must be set aside so far as it incorporates its opinion on the second question. Accordingly, the appeal is allowed to the extent that the judgment of the High Court on the second question is set aside while the appeal is dismissed in respect of the judgment on the first question. There will be numberorder as to companyts.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 11417 of 1983 From the Judgment and Order dated 14. 9. 1983 of the High Court of Madras in W. P. N. 4615 of 1983. Ram Kumar for the Appellant. V. Rangam for the Respondents The Judgment of the Court was delivered by SEN, J. This appeal by special leave directed against the judgment and order of the Madras High Court dated September 14, 1983 raises a question of some companyplexity. The question is as to whether cl. 3 IA of the Tamil Nadu Paddy Restriction on Movement Order, 1982 issued by the State Government under s 3 of the Essential Commodities Act, 1955 read with the Government of India, Ministry of Agriculture Department of Food Order, a. s. R, 800 dated June 9, 1978, with the prior companycurrence of the Government of India, was ultra vires the State Government being in excess of its delegated powers. That depends on whether the delegation of a specific power under cl. d of sub-s. 2 of s. 3 of the Act by the aforesaid numberification issued by the Central Government under s. 5 to regulate the storage, transport, distribution, disposal, acquisition, use or companysumption of an essential companymodity, in relation to foodstuffs, carries with it the general powers of the Central Government under sub-s. 1 of s. 3 of the Act to regulate or prohibit the production, supply and distribution of essential companymodities and trade and companymerce therein. There is a companyflict OF opinion on this question between different High Courts. Hence we thought it fit to grant special leave and heard the appeal on merits. After hearing the parties, we dismissed the appeal by an order dated December 5, 1983 for reasons to follow. The reasons therefore are set out below . Briefly stated, the facts are these. In the State of Tamil Nadu, there has been a system of imposing levy on purchase of paddy by traders in vogue since the year 1970. This was imposed by cl. 3 5 i of the Tamil Nadu Paddy and Rice Licensing, Regulation Disposal of Stock Order, 1968 issued by the State Government under s. 3 of the Act with the prior companycurrence of the Government 1033 Of India. Cl. 3 5 i empowered the State Government to impose A and companylect upto 50 of the stocks by way of levy on purchases of paddy by traders on payment of price specified from time to time. The said Order was replaced by the Tamil Nadu Paddy and Rice Regulation of Trade Order, 1974 issued under s. 3 of the Act with the prior companycurrence of the Government of India. Cl. 5 1 of this Order empowers the State Government to impose and companylect levy upto 50 of the purchase of paddy and rice by the dealers other than retail dealers and they are paid prices numberified by the Government. This clause was subsequently amended in 1976. The power to impose and companylect levy on the purchase of paddy and rice was exercised by the State Government under s. 3 of the Act with a view to procure the stock for distribution of rice to about 118 lakhs family card-holders throughout the State through nearly 17, 800 fair price shops. A review of the food situation in the latter half of 1980 and the beginning of 1981 revealed that the stock of paddy and rice with the Government was number adequate to meet the requirements under the public distribution system. The State Government in the Food Cooperation Department accordingly, decided to enforce the levy on traders by G. O. Ms. No. 33 dated January 1, 1981 and to companylect 40 levy on the purchases of paddy and rice by dealers even though it had the power to impose levy upto 50 at prices fixed by it from time to time. Thereafter, the Government in the Food Cooperation Department by G. O. MS. No. 765 dated October 1, 1981 increased the levy from 40 to 50 from kuruvai season 1981. There was a failure of monsoon in the State in the years 1981-82 and the off take of rice in the fair price shops had increased from 34,000 tonnes in April to 85,000 tonnes in December 1982. Due to failure of south-west monsoon in the year 1982 and companysequent poor rainfall, the storage level in the Mettur reservoir fell. As a result of this there was a steep fall in kuruvai cultivation of paddy. In Thanjavur district alone, the acreage of paddy cultivation was reduced from 4. 5 lakhs acres to 2.97 lakhs acres. Added to this, the numberth-east monsoon in the State also failed causing a serious fall in the production of paddy. In the circumstances, the State Government in the Food Cooperation Department had numberother alternative but to introduce a monopoly procurement scheme of paddy with a view to procure the maximum stock of paddy by banning the purchases by traders. 1034 In exercise of the powers companyferred under s. 3 of the Essential Commodities Act, 1955 read with the Government of India, Ministry of Agriculture Department of Food Order, S. R. 800 dated June 9, 1978, with the prior companycurrence of the Government of India, the State Government promulgated the Tamil Nadu Paddy Restriction on Movement Order, 1982 on October 22, 1982. Cl. 3 1 of the Order provides No person shall transport, move or otherwise carry or prepare or attempt to transport, move or otherwise carry, or aid or abet in the transport, movement or otherwise carrying of paddy outside the State by road rail or otherwise except under and in accordance with the companyditions of a permit issued by an authorized officer. On January 22, 1983, the State Government Department issued G. O. MS. No. 42 for purchase of the entire marketable surplus of paddy in Thanjavur District by the Government through the Tamil Nadu Civil Supplies Corporation as an agent of the Government. On February , 1982, the State Government in the Food Co-operation Department issued another G. O. Ms. No. 84 extending the provision made with regard to Thanjavur district of Chidambaram and Kattumannarkoil taluks in South Arcot district and Musiri, Kulithalai, Lalgudi and 7 Tiruchirapalli taluks in Tiruchirapalli district. On May 11, 1983, the State Government in the Food Co-operation Department issued G. O. Ms. No. 293 introducing sub-cl. 1A to cl. 3 of the Order. The newly inserted cl. IA is as follows No person shall transport, move or otherwise carry or prepare or attempt to transport, move or otherwise carry, or aid or abet in the transport, movement or otherwise carrying of paddy outside the places numberified under Clause 3 of the Tamil Nadu Paddy Rice Restriction of Rates Order, 1974 by road rail or otherwise. Thereafter, on June 20, 1983, the State Government in the Food Cooperation Department by G. O. Ms. No 413 made a further amendment to the newly introduced sub-cl. 1A of cl. 3. The amended cl. IA of cl. 3 is follows 1035 No person shall transport, move or otherwise carry or prepare or attempt to transport, move or otherwise carry, or aid or abet in the transport, movement or other wise carrying of paddy outside the Thanjavur District, Chidambaram and Kattumannarkoil Taluks in South Arcot District and Musiri, Kulithalai, Lalgudi and Tiruchirapalli Taluks in Tiruchirapalli District. These various orders were issued by the state Government in exercise of the powers companyferred by s. 3 of the Act read with the Government of India, Ministry of Agriculture Department of Food Order, G. S. R. 800 dated June 9, 1978 which is set out below C MINISTRY OF AGRICULTURAL AND IRRIGATION DEPARTMENT OF FOOD ORDER New Delhi, the 9th June, 1978. S. R. 800-In exercise of the powers companyferred by s. 5 of the Essential Commodities Act, 1955 10 of 1955 , and in supersession of the Order of the Government of India in the late Ministry of Agriculture Department of Food No. G. R. 316 E dated the 20th June, 1972, the Central Government hereby directs that the powers companyferred on it by sub-s. 1 of s. 3 of the said Act to make orders to provide for the matters specified in cls. a , b , c , d , e , f , h , i , ii and j of sub-s. 2 thereof shall, in relation to foodstuffs be exercisable also by a State Government subject to the companyditions- 1 that such powers shall be exercised by a State Government subject to such directions, if any, as may be issued by the Central Government in this behalf 2 that before making an order relating to any matter specified in the said cls. a , c or f or in regard to distribution or disposal of foodstuffs to places outside the State or in regard to regulations or transport of any foodstuffs, under the said cl d , the State Government shall also obtain the prior companycurrence of the Central Government and 1036 3 that in making an order relating to any of the matter specified in the said cl. i the State Government shall authorize only an officer of Government. Sd -K. Balakrishnan, Dy. Secretary to the Government of India No. 3 Genl 1 /78-DR 1 59 . The appellant and various other agriculturists of Thanjavur district and the aforesaid traditionally rice growing areas of South Arcot and Thiruchirapalli districts challenge the companystitutional validity of cl. 3 1A of the Order placing a companyplete ban on the transport, movement or otherwise carrying of paddy outside Thanjavur district and the aforementioned taluks of South Arcot and Thiruchirapalli districts by petitions under Art. 226 of the Constitution in the High Court. There were as many as 300 writ petitions in the High Cort which were disposed of by the judgment under appeal. The validity of cl 3 IA of the Order was assailed on three main grounds 1 Cl. 3 1A was wholly arbitrary and irrational and thus violative of Art. 14 of the Constitution. 2 Cl. 3 IA was in excess of the delegated powers companyferred on the State Government under s. 3 of the Act by the aforesaid G. S. R 800 dated June 9, 1978 issued by the Central Government under s. 5 of the Act. And 3 The total ban on movement of paddy from out of Thanjavur district and the aforesaid taluks of South Arcot and Thiruchirapalli districts by cl. 3 1A of the Order was an unreasonable restriction on the freedom of trade and companymerce guaranteed under Art. 19 l g and also infringes the freedom of inter-State trade, companymerce and intercourse under Art. 301 of the Constitution. The High Court repelled all these companytentions. Shri P. Govindan Nair, learned companynsel appearing for the appellant argued the case with much learning and resource. Learned companynsel with his usual fairness did number advance some of the companytentions raised before the High Court as they were apparently misconceived. He has companyfined his submissions to only two grounds, namely l Cl. 3 IA of the impugned Order issued by the State Government under s. 3 of the Act read with G. S. R. 800 dated June 9, 1978 issued by the Central Government under s. 5 of the Act with the prior companycurrence of the Government of India placing a ban on the transport, movement or otherwise carrying of 1037 paddy from out of Thanjavur district, the two taluks of South Arcot district and the four taluks of Thiruchirapalli district, was ultra vires the State Government being in excess of the delegated powers. It is urged that the delegation of a specific power under cl. d of subs. 2 of s. 3 of the Act by the aforesaid numberification issued by the Central Government under s. 5 of the Act to regulate the storage, transport, distribution, disposal etc. Of an essential companymodity, in relaston to foodstuffs, does number carry with it the general power of the Central Government under sub-s. l of s. 3 to regulate or prohibit the production, supply and distribution thereof and trade and companymerce therein. And 2 The word regulating in cl. d of subs. 2 of s. 3 of the Act does number take in prohibiting for the words regulating and prohibiting denote two distinct and separate attributes of power and they are mutually exclusive Otherwise according to learned companynsel, there was numberpoint in the Legislature using both the words regulating and prohibiting in sub-s. 1 of s. 3 of the Act and the words regulating and prohibiting differently in various clauses of sub-s. 2 thereof. It is urged that there cannot be a total prohibition on transport, movement or otherwise carrying of paddy out of the areas in question under cl. d of subs. 2 of s 3 but only regulation of such activities in the companyrse of trade and companymerce by grant of licences or permits The learned companynsel is fortified in his submissions by the decisions of the Punjab, Allahabad and Orissa High Courts in Sujan Singh v State of Haryana, 1 State of Uttar Pradesh v. Suraj Bhan 2 and Bejoy Kumar Routrai v. State of Orissa 3 and he questions the companyrectness of the decision of the Gujarat High Court in Nanalal Navalnathji Yogi Collestor of Bulsar Ors. 4 taking a view to the companytrary. We are afraid, we are unable to accept any of the companytentions advanced by him. In order to appreciate the companytentions advanced, it would be companyvenient to set out the relevant statutory provisions. Sub-s. 1 of s. 3 of the Act is in these terms 3 1 . Power to companytrol production, supply, distribution etc. Of essential companymodities- 1 . AIR 1968 Pun. 363 2 . AIR .972 Al. 401 3 . AIR 1976 Orr. 138 4 . 1981 . 87 1038 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 prohibiting the production, supply and distribution thereof and trade and companymerce therein. Sub-s. 2 of s. 3 of the Act, insofar as material, lays down 3. 2 Without prejudice to the generality of the powers companyferred by sub-s. 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 or companysumption of any essential companymodity. S of the Act provides Delegation of powers-The Central Government may, by numberified order, direct that the power to make orders or issue numberifications under s. 3 shall in relation to such matters, and subject to such companyditions, if any, as may be specified in the direction, be exercisable also by- a such officer or authority subordinate to the Central Government, or b such State Government or such officer or authority subordinate to a State Government. as may be specified in the direction. 1039 The infirmity in the argument lies in the erroneous assumption A that the source of power on authority to promulgate the impugned Order was derived by the State Government under cl. d of sub-s 2 of s. 3 of the Act by virtue of the delegation of powers by the Central Governmnent by the numberification No G. S. R. 800 dated June 9, 1978 under s 5 of the Act. The source of power to promulgate an order of this description is derived from subs. 1 of s. 3 of the Act, According to its plain language, the aforesaid numberification No. G. S. R. 800 provides that in exercise of the powers companyferred by s. 5 of the Act, and in supersession of the earlier order of the Government of India in the Ministry of Agriculture, Department of Food, No. G. S R 316 dated June 20, 1972, the Central Government directs that the powers companyferred on it by sub-s. 1 of s. 3 of the Act to make orders to provide for matters specified in clauses a , b , c , d , e , f , h , i , ii and j of sub-s. 2 thereof shall, in relation to foodstuffs, be exercisable also by a State Government subject to the companyditions set out therein. There must be some meaningful effect given to the words the Central Government hereby directs that the powers companyferred on it by sub-s. 1 of s. 3 of the Act to make orders etc shall be exercisable also by a State Government subject to the companyditions set out therein. On a plain companystruction, the first part of the aforesaid numberification in specific terms provides for the delegation by the Central Government under s. 5 of the Act of the powers companyferred on it by sub-s. 1 of s. 3 of the Act. That power is general in its terms and authorises inter alia the promulgation of any order providing for regulating or prohibiting the production, supply and distribution of, and trade and companymerce in, any essential companymodity, insofar as it is necessary or expedient so to do for maintaining or increasing supplies or for securing their equitable distribution and availability at fair prices. The second part of the numberification directs that the power to make orders thereunder i.e. the power under sub-s. 1 of s. 3 of the Act shall be exercisable also by a State Government, in relation to foodstuffs, with respect to such matters viz. for the matters specified in clauses a , b , c , d , e , f , h , i , ii and j of sub-s. 2 thereof and subject to such companyditions set out therein. The aforesaid numberification G. S. R. 800 dated June 9, 1978 issued by the Central Government was strictly in companyformity with s. 5 of the Act. Of the three companyditions, the one that is material for our purpose is companydition 2 It provides that before making an order under cl. d of sub-s. 2 of s. 3 of the Act in regard to 1040 distribution or disposal of foodstuffs to places outside the State or in regard to regulations or transport of any foodstuffs, the State Government shall also obtain the prior companycurrence of the Central Government. It is manifest on a plain reading that the aforesaid numberification No. G. S. R. 800 dated June 9, 1978 was strictly in companyformity with the requirements of s. 5 of the Act. Learned companynsel for the appellant however strenuously company tends that the delegation of powers by the Central Government under s. 5 of the Act must necessarily be in relation to such matters and subject to such companyditions as may be specified in the numberification. The whole attempt on the part of the learned companynsel is to companyfine the scope and ambit of the impugned order to cl. d of sub-s . of g. 3 of the Act which uses the word regulating and take it out of the purview of sub-s. 1 of s. 3 which uses the words regulating or prohibiting. That is number a proper way of companystruction of sub-ss l and 2 of s. 3 of the Act in their numbermal setting. The restricted companystruction of s. 3 companytended for by learned companynsel for the appellant would render the scheme of the Act wholly unworkable. As already indicated, the source of power to make an order of this description is sub-s. l of s 3 of the Act and sub-s. 2 merely provides illustration for the general powers companyferred by sub-s. l . Sub-s. 2 of s. 3 of the Act companymences with the words Without prejudice to the generality of the powers companyferred by sub-s. 1 . It is manifest that sub-s. 2 of s 3 of the Act companyfers numberfresh powers but is merely illustrative of the general powers companyferred by sub-s. 1 of s. 3 without exhausting the subjects in relation to which such powers can be exercised. The matter is numberlonger res integra. The question directly arose for companysideration by this Court in Santosh Kumar Jain v. The State 1 . There, the Court was companysidering the validity of the Sugar and sugar Products Control Order, 1947 issued by the then Provincial Government of Bihar in exercise of the powers companyferred on it by s. 3 of the Essential Supplies Temporary Powers Act, 1946 by virtue of the delegation of powers by the Central Government to make orders in relation to foodstuffs under cl. j of sub-s. 2 of s. 3 of that Act. Patanjali Shastri, J., speaking for the Court explaining the relevant functions of sub-ss. 1 and 2 of s. 3 of the Act, said 1 1951 S.C.R. 303. 1041 It is manifest that sub-s. 2 of s. 3 companyfers numberfur. A the or other powers on the Central Government than what are companyferred under sub-s. 1 , for it is an order made thereunder that may provide for one or two other of the matter specifically enumerated in sub-s. 2 which are only illustrative, as such enumeration is without prejudice to the generality of the powers companyferred by sub-s. 1 . Seizure of an article being thus shown to fall within the purview of sub-s. l , it must be companypetent for the Central Government or its delegate, the Provincial Government, to make an order for seizure under that sub-section apart from and irrespective of the anticipated companytravention of any other order as companytemplated in cl. j of sub-s. 2 . The Court drew support for this view from the decision of the Privy Council in Emperor v. Sibnath Banerjee. The Federal Court in that case held r. 26 of the Defence of India Rules made under cl j of sub-s 2 of s. 3 of the Defence of India Act, 1939 to be ultra vires, which decision was reversed by the Privy Council, The Court quoted with approval the following observations of Lord Thankerton, J. delivering the judgment of Privy Council In the opinion of their Lordships, the function of sub s. 2 is merely an illustrative one the rule-making power is companyferred by sub-s. 1 , and the rules which are referred to in the opening sentence of sub-s. 2 are the rules which are authorized by, and made under, sub-s. 1 the provisions of sub-s 2 are number restrictive of sub-s. 1 , as, indeed is expressly stated by the words without prejudice to the generality of the powers companyferred by sub-s 1 . This accords with our view of the purport and effect of sub-ss. 1 and 2 of s. 3 of the Act. In Atulya Kumar v. Director of Procurement Supply a , the challenge was to the validity of West Bengal Foodgrains Intensive Procurement Order, 1952 issued under s. 3 1 of the Essential Supplies Temporary Powers Act, 1946 by virtue of delegation of powers by the Central Government under s. 5 of the Act which was LR 1945 72 IA 241. 2 . AIR 1953 Cal. 548. 1042 almost in identical terms with s. 5 of the Act. Sinha, J. as he then was held that the powers to promulgate the levy order was derived from sub-s. 1 of s 3 of the Act and that the power was general in terms and authorized inter alia the promulgation of any order providing for regulating or prohibiting the production, supply and distribution of, and trade and companymerce in, any essential companymodity, insofar as it appears necessary or expedient to the State Government for maintaining or increasing supplies or for securing their equitable distribution and availability at fair prices. The learned Judge after referring to the Privy Council decision in Sibnath Banerjees case and that of this Court in Santosh Kumar Jains case, observed Sub-s. 2 of s. 3, companymences with the words without prejudice to the generality of the powers companyferred by sub-s. 1 etc. This shows that sub-s. 2 companyfers numberfresh powers but provides illustrations of the general powers companyferred by sub-s. 1 The learned Judge went on to observe This is undoubtedly very incompetent drafting. But I think that the meaning is reasonably clear. The Matters Specified in sub-s. 2 , being without prejudice to the generality of the powers companyferred by sub-s 1 must be held to include such powers. Thus it cannot be said that the general powers have number been companyferred upon the State, but only those specified in cls. a to j of sub-s. 2 . The only limitation is with regard to the kind of essential companymodity companycerned. The State has been given powers limited to foodstuffs only. Quite recently, the Calcutta High Court in Tarakdas Mukherjee v. State of West Bengal 1 and Lila Biswas v. State of West Bengal 12 following the dictum of Sinha, J. in Atulya Kumars case, supra, have held that the delegation of specific powers to issue an impugned order of this nature is derived from sub-s. 1 of s. 3 and that the provisions of sub-s. 2 thereof are merely illustrative. It has further held that the various clauses of sub-s. 2 of s. 3 of the Act cannot be made operative independently by any numberification 1 1978 2 Cal. LJ 383 2 1978-9 83 CWN 539 1043 under s. 5 of the Act without deriving the general powers under sub-s. 1 of s. 3 of the Act. We are of the companysidered opinion that the view of the Calcutta High Court accords both with reason and principle. The view to the companytrary taken by the Punjab, Allahabad and Orissa High Courts in Sujan Singhs. Suraj Bans and Bejoy Kumar Routrais cases, supra, dose number lay down good law. It must accordingly be held that although cl. d of sub-s. 2 of s. 3 of the Act deals only with a specific power, the general power to issue the impugned order flows from the provisions of sub-h. 1 of s. 3 which stands delegated to the State Government by virtue of the numberification issued under s. S of the Act. Upon that view, the question as to the companystruction of the word regulating occurring in cl. d of sub-s. 2 of 8.3 of the Act does number really arise. However, since the question has been raised at the Bar we think it proper to deal with it. As a matter of companystruction, Shri P- Govindan Nair, learned companynsel for the appellant companytends that the words regulating and prohibiting companynote two distinct and separate attributes of power which are mutually exclusive and therefore the word regulating used in cl. d cannot be given the same meaning as prohibiting. He urges that is A sound rule of companystruction to give the same meaning to the same word occurring in different parts of an Act of Parliament. For the purpose of ascertaining the true meaning of the word regulating in the companytext of cl. d of sub-s. 2 of s. 3, he has referred to us the different clauses of that sub-section. A perusal of the various clauses a to j indicates that while cls. a , d and g speak of the power to prohibit, and the remaining cls. b , c , f , h , i , ii and j though they do number mention that they are illustrative of the power to regulate impliedly partake of the character of that power. If the companytention of the learned companynsel were to be accepted, it would imply that the Central Government derives its power under sub-s. 1 of s. 3 of the Act as the power to promulgate any order providing for regulating or prohibiting the production, supply and distribution of, and trade and companymerce in, any essential companymodity insofar as it appears necessary or expedient so to do, for maintaining or increasing supplies or for securing their equitable distribution and availability at fair prices. If the Central Government were to make an order under sub-s. 1 in respect of the matters specified in cl. d , it may number only regulate or companytrol the storage, transport, distribution etc. Of an essential companymodity including the 1044 movement of such foodstuffs by grant of licenses, permits or otherwise, but also place a ban on the movement of wheat from one place to another but the State Government under cl. d has only a regulatory power in relation thereto i.e. to make an order only for regulating the movement of wheat from one place to another by issue of the permits, licenses or otherwise as provided for by cl. 3 of the impugned Order but companyld number have issued cl. 3 IA placing a ban on movement of wheat from one place to another. Although by force of logic one may be driven to that companyclusion that the State Government has power to promulgate cl 3 of the impugned Order but number cl. 3 IA , there is numberreason for us to give such a restrictive meaning to the word regulating appearing in cl. d of sub-s. 2 of s. 3 of the Act. it would seem that the rule of companystruction is clearly y-well recognized that a word may be used in two different senses in the same section of an Act. The world regulation has number that rigidity of moaning as never to take in prohibition. I must depend on the companytext in which it is used in the statute and the object sought to be achieved by the legislation. For a time different views were expressed on the question whether the word regulation in Art. 19 2 to 19 6 includes prohibition till the Court in Narendra Kumar v. Union of India 1 answered it in the affirmative. Shri P. Govindan Nair, learned companynsel for the appellant however companytends that the word regulation should number be companyfused with the expression reasonable restrictions occurring in Art. 19 2 to 6 of the Constitution and therefore the view t-taken in Narendra Kumars case is number applicable. According to him, the word regulation in cl. d of sub-. 2 of s. 3 of the Act does number take in prohibition. He seeks to draw a distinction between prohibition or prevention o-certain activities and their regulation or governance. It is said that a power to regulate or govern would imply companytinued existence of that which is to be regulated or governed and to be inconsistent with absolute prohibition. He therefore submits that cl. 3 IA of the Order was ultra vires because the State Government had only power under cl. d of sub-s, 2 of s. 3 of the Act to regulate production, supply and distribution of, and trade and companymerce in, essential companymodities like foodstuffs by 1 1960 2 SCR 361. 1045 grant of permits, licenses or otherwise, in companytradistinction to the A power of the Central Government under sub-s. 1 of s. 3 to regulate or prohibit such production, supply and distribution of, and trade and companymerce in, essential companymodities. Learned companynsel for the appellant placed reliance on the decision of the Allahabad High Court in Suraj Bhans case which proceeds Upon a decision of this Court in State of Mysore v. Sanjeeviah 1 holding that power to regulate does number include power to prohibit or restrict. In Sanjeeviahs case, the question arose whether two provisos framed by the State Government under s. 37 of the Mysore Forest Act, 1900 which empowered the making of rules to regulate the transit of forest produce which placed absolute prohibition against transportation of forest produce between sunset and sunrise and a qualified prohibition in certain circumstances, was beyond the rule-making power of the State Government. The companytention on behalf of the State was. that the two provisos were regulatory and prohibitory- In repelling the companytention, the Court observed The power which the State Government may exercise is the power to regulate transport of forest produce, and number the power to prohibit or restrict transport. Prima facie, a rule which totally prohibits movement of forest produce during the period between sunset and sunrise is prohibitory or restrictive of the right to transport forest produce. These observations do number lay down any rule of universal application. The word regulation cannot have any rigid or inflexible meaning as to exclude prohibition. The word regulate is difficult to define as having any precise meaning. It is a word of broad import, having a broad meaning, and is very companyprehensive in scope. There is a diversity of opinion as to its meaning and its application to a particular state of facts, some Courts giving to the term a somewhat restricted, and others giving to it a liberal, companystruction. The different shades of meaning are brought out in Corpus Juris Secundum, vol. 76 at p. 611 1 1967 2 S.C.R. 361, 1046 Regulate is variously defined as meaning to adjust to adjust order, or govern by rule, method, or established mode to adjust or companytrol by rule, method, or established mode, or governing principles or laws to govern to govern by rule to govern by, or subject to, certain rules or restrictions to govern or direct according to rule to companytrol, govern, or direct by rule or regulations. Regulate is also defined as meaning to direct to direct by rule or restriction to direct or manage according to certain standards, laws, or rules to rule to companyduct to fix or establish to restrain to restrict. See also Websters Third New International Dictionary, vol. II, p. 1913 and Shorter Oxford Dictionary, Vol. II, 3rd edn., p. 1784. It has often been said that the power to regulate does number necessarily include the power to prohibit, and ordinarily the word regulate is number synonymous with the word prohibit. This is true in a general sense and in the sense that mere regulation is number the same as absolute prohibition. At the same time, the power to regulate carries with it full power over the thing subject to regulation and in absence of restrictive words, the power must be regarded as plenary over the entire subject It implies the power to rule, direct and companytrol, and involves the adoption of a rule or guiding principle to be followed, or the making of a rule with respect to the subject to be regulated. the power to regulate implies the power to check and may imply the power to prohibit under certain circumstances, as where the best or only efficacious regulation companysists of suppression It would therefore appear that the word regulation cannot have any inflexible meaning as to exclude prohibition. let has different shades of meaning and must take its companyour from the companytext in which it is used having regard to the purpose and object of the legislation, and the Court must necessarily keep in view the mischief which the legislature seeks to remedy. The question essentially is one of degree and it is impossible to fix any definite point at which regulation ends and prohibition begins. We may illustrate how different minds have differently reacted as to the meaning of the word regulate depending on the companytext in which it is used and the purpose and object of the legislation 1047 In Slattery v. Naylor, l the question arose before the Judicial Committee of the Privy Council whether a bye-law by reason of its prohibition internment altogether in a particular cemetry, was ultra vires because the Municipal Council had only power of regulating internments whereas the bye-law totally prohibited them in the cemetry in question, and it was said by Lord Hobhouse, delivering the judgment of the Privy Council A rule or bye-law cannot be held as ultra vires merely because it prohibits where empowered to regulate, as regulation often involved prohibition. In companytrast in Municipal Corporation of the City of Toronto v. Virgo, 2 where the question for decision was whether a section or a bye-law prohibiting hawkers from plying their trade, was companypetently and validity made, Lord Davey delivering the judgment of the Privy Council while laying down that a power to make a bye law to regulate and govern a trade does number authorize the prohibition of such trade, and added There is a marked distinction between the prohibition or prevention of a trade and the regulation or governance of it, and, indeed, a power to regulate and govern seems to imply the companytinued existence of that which is to be regulated or governed. The predominant object of the Act, as reflected in the preamble is to provide, in the interests of the general public, for the companytrol of the production, supply and distribution of, and trade and companymerce in, certain essential companymodities. It is a piece of socioeconomic legislation enacted in the national interest to secure companytrol over the production, supply and distribution of, and trade and companymerce in, essential companymodities. The various Control Orders issued by the Central Government under sub-s 1 of s. 3 of the Act or by the State Government under s 3 read with s. 5 have introduced a system of checks and balances to achieve the object of the legislation i.e. to ensure equitable distribution and availability of essential companymodities at fair prices. Special public interest in an industry e.g. that it is engaged in the production of a companymodity, LR 1888 AC 446 LR 1896 AC 88 1048 vitally essential to the companymunity, may justify the regulation of its production, supply and distribution and its trade and companymerce, provided such regulation is number arbitrary and has a rational nexus with the object sought to be achieved. the power to regulate or prohibit the production, supply and distribution of, and trade and companymerce in, essential companymodities may be exercised in innumerable ways. One of the ways in which such regulation or companytrol over the production, supply and distribution of, and trade and companymerce in, an essential companymodity like foodstuffs may be exercised by placing a ban on inter Slate or inter-State movement of foodstuffs to ensure that the excess stock of foodstuffs held by a wholesale dealer, companymission agent or retailer is number transported to places outside the State or from one district to another with a view to maximize the procurement of such foodstuffs from the growers in the surplus areas for their equitable distribution at fair prices in the deficit areas. The placing of such ban on export of foodstuffs across the State or from one part of the State to another with a view to prevent outflow of foodstuffs from a State which is a surplus State prevents the spiral in prices of such foodstuffs by artificial creation of shortage by unscrupulous traders. But such companytrol can be exercised in a variety of ways otherwise than by placing companypulsory levy on the producers, for example, by fixing a companytrolled price for foodstuffs, by placing a limit on the stock of foodstuffs to be held by a wholesale dealer, companymission agent, or retailer, by prohibiting sales except in certain specified manner, etc. These are numberhing but regulatory measures. We find numberlawful justification for giving a restricted meaning to the word regulating in cl. d of sub s. 2 of s. 3 of the Act as number to take in prohibiting. In State of Tamil Nadu v. M S Hind Stone and Ors. Chinnappa Reddy, J. referred with approval the observations of Mathew, J. in G.K. Krishnan v. State of Tamil Nadu 2 laying down that the word regulation has numberfixed companynotation and that its meaning differs according to the nature of that, thing to which it is applied. The learned Judge also observed In modern statutes companycerned as they are with economic and social activities, regulation must, of necessity, 1 l981 2 SCC 205 2 1975 2 SCR 715 1049 receive so wide an inter-pretation that in certain situations, A 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 1949 2 All. ER 755 PC -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. In Krishan Lal Praveen Kumar Orsv. State of Rajasthan Ors., l Suraj Mal kailash Chand ors. v. Union of India Ors., a and Bishamber Dayal Chandra Mohan Ors. State of U.P. Ors. 3 the Court has held that a restriction placed on movement of wheat from one State to another and on movement of wheat from one district to another under cl. d of sub-s. 2 of s. 3 of the Act, to be regulatory in character. Surely when a part of the companyntry is verging on companyditions of acute shortage or even famine, it is expected of the government to procure foodstuffs from surplus areas and transport the same for distribution in deficit areas. D the State of Tamil Nadu like some other States, the two things most essential for the sustenance of human life are rice and paddy. It is amply borne out from the material on record that due to the failure of the southwest and numbertheast monsoons in successive years, and the companysequent poor rainfall, there was a steep fall in production of paddy. In the circumstances, the State Government had numberother alternative number only to reimpose companypulsory levy on the producers of paddy to the extent of 50, but also to introduce a scheme for a monopoly purchase of paddy by the Government with a view to build up its buffer stock for distribution through the public distribution 1 11981 4 SCC 550 2 1981 4 SCC 554 3 1982 I SCR 137 1050 system throughout the State. If one part of the State is faced with a famine or even acute shortage of foodstuffs, it is number unreasonable for the Government to acquire foodstuffs from the surplus areas and distribute the same in areas where they are most needed. The source of power to issue an order under cl d of sub-s. 2 of s. 3 of the Act being relatable tot he general powers of the Central Government under sub-s. 1 of s. 3, there is numberreason for us to give a restricted meaning to the word regulating in cl. d of sub-s. 2 of s. 3 of the Act so as number to take in prohibiting.

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 507-508 of 1963. Appeal by special leave from the judgment and order dated November 4, 1950, of the Orissa High Court in Special Jurisdiction Cases Nos. 38 and 39 of 1958. Ganapathy Iyer and R. N. Sachthey, for the appellant in both the appeals . Sen and S. N. Mukherjee, for the respondents in both the appeals . April 21, 1964. The Judgment of the Court was delivered by SIKRI, J.-The respondent, hereinafter referred to as the the dealer, filed a return for the quarter ending June 30, 1951, under the Orirsa Sales Tax Act Orissa Act XIV of 1947 hereinafter referred to as the Act . He claimed a deduction of Rs. 2,40,000/- under s. 5 2 a ii in respect of the goods sold to a registered dealer, named M s. Lal Co. Ltd., BA 1335. Similarly, for the quarter ending September 30. 1951, he claimed a deduction of Rs. 15,677/1/3. By two assessment orders passed under s. 12 2 of the Act, the Sales Tax Officer, Cuttack III circle, Jaipur, Orissa, determined the tax payable allowing the deduction of Rs. 2,40,000/- and Rs. 15,677/l/3, under s. 5 2 a ii . The dealer filed appeals to the Assistant Collector, Sales Tax, challenging the assesment on grounds which are number relevant. The dealer later filed revisions against the decision of the Assistant Collector. While the revisions were pending, the legislature amended the Orissa Sales Tax Act, in 1957, by Orissa Sales Tax Amendment Act Orissa Act XX of 1957 . The effect of this amendment was that revisions were treated as appeals to Sales Tax Tribunal, and it enabled the Government to file cross-objections. The State of Orissa, in pursuance of this amendment, filed memorandum of cross-objections challenging the deduction of Rs. 2,40,000/- and Rs. 15,677/l/3, on the ground that the dealer had number produced any declaration, as required under r. 27 2 of the Orissa Sales Tax Rules, 1947, as evidenced from the Check Sheet kept on record. The Tribunal upheld this objection and directed that fresh assessments be made. Certain other questions were raised before the Tribunal by the dealer, but as numberhing turns on them as far as these appeals are companycerned, they are number being mentioned. The Tribunal stated a case to the High Court and one of the questions referred to was whether the assessing officer was number wrong in allowing deduction of Rs. 2,40,000/- for the quarter ending on 30-6-51 and Rs. 15,677/1/3 for the quarter ending on 30-9-51 from the respective gross turnover of the applicant. The High Court, following its earlier decision in Member, Sales-tax Tribunal, Orissa v. Messrs S. Lal Co. Limited 1 answered the question in the affirmative. The State of Orissa having obtained special leave from this Court, these appeals are number before us for disposal. Mr. Ganapathy lyer, on behalf of the State of Orissa, has companytended before us that it is clear that r. 27 2 was number companyplied with, and, therefore, the Sales Tax Officer was wrong 1 1961 12 S.T.C. 25. in allowing the said deduction. The answer to the question referred depends on the companyrect interpretation of s. 5 2 a ii , Co. and r. 27 2 . They read thus - s. 5 2 a ii -sales to a registered dealer of goods specified in the purchasing dealers certificate of registration as being intended for resale by him in Orissa and on sales to a registered dealer of companytainers or other materials for the packing of such goods. Provided that when such goods are used by the registered dealer for purposes other than those specified in his certificate of registration, the price of goods so utilised shall be included in his taxable turnover. Rule 27 2 . Claims for deduction of turnover under sub-clause ii of clause a of subsection 2 of section 5- A dealer who wishes to deduct from his gross turnover on sales which have taken place in Orissa the amount of a sale on the ground that he is entitled to make such deduction under sub-clause ii of clause a of sub-section 2 of section 5 of the Act, shall produce a companyy of the relevant cash receipt ,or bill according as the sale is a cash sale or a sale .on credit in respect of such sale and a true declaration in writing by the purchasing dealer or by such responsible person as may be authorised in writing in this behalf by such dealer that the goods in question are specified in the purchasing dealers certificate of registration as being required for resale by him or in the execution of any companytract Provided that numberdealer whose certificate of registration has number been renewed for the year during which the purchase is made shall make such a declaration and that the selling dealer shall number be entitled to claim any deduction of sales to such a dealer. It is, plain from the terms of s. 5 2 a ii that a selling ,dealer is entitled to a deduction in respect of sales to a registered dealer of goods, if the goods are specified in the purchasing dealers certificate of registration as being intended for re-sale by him in Orissa. No other companydition is imposed by the above section. The proviso deals with companysequences that follow if the purchasing dealer uses them for purposes other than those specified in his certificate of registration, and ,directs that, in that event, the price of goods so utilised shall be included in his turnover. Therefore, there is numberhing in the section itself that disentitles a selling dealer to a deduction, but if the companytingency provided in the proviso occurs, them the price of goods is included in the taxable turnover of the buying dealer. But Mr. Ganapathy lyer says, be it so, but the rule making authority is entitled to make ruler, for carrying out the purposes of the Act, and r. 27 2 is designed to ensure that a buying dealers certificate of registration does, in fact, mention that the goods are intended for resale by him, and for that purpose it has chosen one exclusive method of proving the fact before a Sales Tax Officer. He further urges that numberother method of proving that fact is permissible. Rule 27 2 is mandatory and if there is breach of it the selling dealer is number entitled to deduction. The learned companynsel for the respondent, on the other hand, companytends that r. 27 2 is directory. He points out that the word shall should be read as may, in the companytext. He further says that supposing the selling dealer brought the original certificate of registration of a buying dealer and produced it before the Sales Tax Officer, according to the appellant, this would number be enough, but this companyld never have been intended. In our opinion, r. 27 2 must be reconciled with the section and the rule can be reconciled by treating it as directory. But the rule must be substantially companyplied with in every case. It is for the Sales Tax Officer to be satisfied that, in fact, the certificate of registration of the buying dealer companytains the requisite Statement, and if he has any doubts about it, the selling dealer must satisfy his doubts. But if he is satisfied from other facts on the record, it is number necessary that the selling dealer should produce a declaration in the form required in r. 27 2 , before being entitled to a deduction. We are, therefore, of the opinion that the High Court came to a companyrect companyclusion. The High Court is companyrect in holding that the production of a declaration under r. 27 2 is number always obligatory on the part of a selling dealer when claiming the exemption. It is open to him to claim exemption by adducing other evidence so as to bring the transaction within the scope of s. 5 2 a ii of the Act. In this case, the Sales Tax Officer was satisfied by a mere statement of the dealer and it has number been shown that in fact the registration certificate of the buying dealer, M / s S. Lal Co., did number companytain the statement that the goods were intended for resale by him in Orissa. The appeals accordingly fail and are dismissed with companyts.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.185 of 1966. Appeal by special leave from the judgment and order dated June 3, 1966 of the Allahabad High Court, LuCknow Bench inCriminal Revision Applications No. 410 and 413 of 1964. K. Garg, S.C. Agarwala, S. Chakravarti and S. S.Shukla, for the appellants. P. Rana and Ravindra Bana, for the respondent. The Judgment of the Court was delivered by Ramaswami, L This appeal is brought, by special leave, from the judgment of the Allahabad High Court dated June 3, 1966 dismissing the Criminal Revision Applications Nos. 410 and 413. of 1964. The appellant, Lalta filed a money suit number 54 of 1955 in the Court of Civil Judge, Gonda against Swami Nath on the basis of a pronote and receipt dated July 1, 1952 on the allegation that Swami Nath had taken a loan of Rs. 250 from him and executed a promisory numbere and a receipt in lieu thereof. Swami Nath filed a written statement in that suit denying to have taken any loan or to have executed any pronote and receipt in favour of Lalta. It appears that prior to the institution of this suit Swami Nath had filed a companyplaint on January 24, 1955 against Lalta and others alleging that they had forcibly taken his thumb. impressions on a number of blank forms of pronotes and receipts The case arising out of the Criminal companyplaint came to be heard by a Magistrate Second Class who by his judgment dated May 31, 1956 acquitted Lalta and the other persons companyplained against. The Criminal case against Swami Nath proceeded on the. charges framed under ss. 342 and 384, Indian Penal Code. In the Civil Suit which was filed by Lalta, the defendant Swami Nath moved an application for a report being called from the Superintendent, Security Press, Nasik regarding the year of the revenue. stamps affixed on the pronote and the receipt. The matter was accordingly referred to the Superintendent, Security Press, Nasik and the report received was that the stamps in question had been printed on December 21, 1953 and were issued for the first time on January 16, 1954 to the Treasury. Subsequent to the receipt of the report Lalta did number put in appearance and the suit was dismissed for default on June 1, 1956. The Civil Judge was moved for filing a companyplaint against the appellants for companymitting forgery. The Civil Judge Gonda actually filed a companyplaint on, November 9, 1956 against Lalta for offences under ss. 193, 194, 209, 465, 467 and 471, Indian Penal Code and against Tribeni and Ram Bharosey foran offence under s. 193, Indian Penal Code. The companyplaint was enquired into by a First Class Magistrate who companymitted the appellants to the Court of Sessions. By his judgment dated November 27, 1963, the Assistant Sessions Judge, Gonda companyvicted Tribeni and Ram Bharosey under s. 467 read with s. 109, Indian Penal Code and sentenced them to 3 years rigorous imprisonment. He found Lalta guility under s. 467, Indian Penal Code and sentenced him to 3 years rigorous imprisonment. Lalta was also companyvicted under s. 471, Indian Penal Code and sentenced to 2 years rigorous imprisonment. He was also found guilty under s. 193, Indian Penal Code and sentenced to rigorous imprisonment for two years. The appellants took the matter in appeal to the Sessions Judge, Gonda who by his order dated October 17, 1964 set aside the companyvietion of Lalta under s. 193, Indian Penal Code but maintained the companyviction of the appellants under the other sections. Tribeni, Lalta and Ram Bharosey filed Revision Applications before the Allahabad High Court which by its order dated June 3, 1966 affirmed the order of the Sessions Judge, Gonda and dismissed the Revision Applications. In support of this appeal Mr. Garg put forward the argument that in view of the fact that Swami Naths companyplaint had been ,dismissed by the Second Class Magistrate on May 31, 1956, the prosecution case with regard to the act of forgery must fail and the companyviction of Lalta under s. 467 and s. 471, Indian Penal ,.Code was number sustainable. It was also pointed out that the ,charge of abetment against Ram Bharosey and Tribeni under s. 467 read with s. 109, Indian Penal Code and s. 471 read with s. 109, Indian Penal Code must fail for the same reason. In our opinion, the argument put forward on behalf of the appellants is wellfounded and must be accepted as companyrect. In Pritam Singh v. The State of Punjab 1 , it was pointed out by this Court that the effect of a verdict of acquittal passed by a companypetent companyrt on a lawful charge and after a lawful trial is number companypletely stated by saying that the person acquitted cannot be tried again for the same offence, but to that it must be added that the verdict is binding and companyclusive in all subsequent proceedings between the partiesto. the adjudication. In that case the appellant had been acquitted of the charge under s. 19 f , Arms Act for possession of a revolver. There was a subsequent prosecution of the appellant for ,an offence under s. 302, Indian Penal Code and the possession of the revolver was a fact in issue in the later case which had to be established by the prosecution. It was held that the finding in the former trial on the issue of prossession of revolver will companystitute an estoppel against the prosecution, number as a bar to the trial and companyviction of the appellant for a different offence but as precluding the reception of ,evidence to disturb the finding of fact. Section 403, Criminal Procedure Code embodies in statutory form the accepted English rule of autrefois acquit. The section reads as follows 403. 1 A person who has once been tried by a Court of companypetent jurisdiction for an offence and companyvicted or acquitted of such offence shall, while such companyviction or acquittal remains in force number be liable to be tried again for the same offence, number on the same facts for any other offence for which a different charge from the one made against him might have been made A.I.R. 1956 S.C. 415. under section 236, or for which he might have been companyvicted under section 237. A person acquitted or companyvicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have. been made against him on the former trial under section 235, sub-section 1 . A person companyvicted of any offence companystituted by any act causing companysequences which, together with such act, companystituted a different offence from that of which he was companyvicted, may be after wards tried for such last-mentioned offence, if the companysequences had number happened, or were number known to the Court to have happened, at the time when he was companyvicted. A person acquitted or companyvicted of any offence companystituted by any acts may, numberwithstanding such acquittal or companyviction, be subsequently charged with, and tried for, any other offence companystituted by the same acts which he may have companymitted if the Court by which he was first tried was number companypetent to try the offence with which he is subsequently charged. Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897, or of section 18 8 of this Code. Explanation. The dismissal of a companyplaint, the stopping of proceedings under section 249, the discharge of the accused or any entry made upon a charge under section 273, is number an acquittal for the purposes of this section. Section 26 of the General Clauses Act which is referred to in s. 403, Criminal Procedure Code enacts as follows Where an act or omission companystitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall number be liable to be punished twice for the same offence. It is manifest in the present case that. the appellants cannot plead the bar enacted in s. 403 1 of the Criminal Procedure Code. It is equally manifest that the prosecution of the appellants would be permitted under sub-s. 2 of s. 403, Criminal Procedure Code. The question presented for determination in this appeal is, however, different. The question is whether where an issue of fact has been tried by a companypetent companyrt on a former occasion and a finding has been reached in favour of an accused, such a finding would companystitute an estoppel or res judicata against the prosecution, number as a bar to the trial and companyviction of the accused for a different offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of s. 403 2 , Criminal Procedure Code. The distinction between the principle of autrefois acquit and the rule as to issueestoppel in other words, the objection to the reception of evidence to prove an identical fact which has been the subject-matter of an earlier finding between the same parties clearly brought out in the following passage from the judgment Wright,. J. in The Queen v. OIlis 1 The real question is whether this relevant evidence of the false pretence on July 5 or 6 ought to have been excluded on the ground that it was part of the evidence given for the prosecution at the former trial, at which the prisoner was charged with having obtained money from Ramsey on that false pretence, and was acquitted of that charge. Speaking of this type of estoppel, Dixon, J. stated in The King v. Wilkes 2 Whilst there is number a great deal of authority upon the subject, it appears to me that there is numberhing wrong in the view that there is an issue estoppel, if it appears by record of itself or as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner. That seems to be implied in the language used by Wright, J. in R.v. Oilis which in effect I have adoptde in the foregoing statement There must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner. The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding. But if such a companydition of affairs arises I see numberreason why the ordinary rules of issueestoppel should number apply. Such rules are number to be companyfused with those of res judicata, which in criminal proceedings are expressed in the pleas of autrefois acquit and autrafois companyvict. They are pleas which are companycerned with the judicial determination of an alleged criminal liability and in the case of 1 1900 2 Q.B. 758, 768-769. 2 77 C.L.R. 511,518. companyviction with the substitution of a new liability. issue estoppel is companycerned with the judicial establishment of a proposition of law or fact between parties. It depends upon well-known doctrines which companytrol the relitigation of issues which are settled by prior litigation. The same question was the subject-matter of companysideration by the High Court of Australia in a later case Marz v. The Queen 1 . The question at issue was the validity of a companyviction for rape after the accused had been acquitted on the charge of murdering the woman during the companymission of the act. In a unanimous judgment by which the appeal of the accused was allowed, the High Court stated as follows -- It is a negation in the alternative upon which, so long as the verdict stood in its entirety, the applicant was entitled to rely as creating an issue estoppel against the Crown. He was entitled to rely upon it because when he pleaded number guilty to the indictment of murder the issues which were thereby joined between him and the Crown necessarily raised for determination the existence of the three elements we have mentioned and the verdict upon those issues must, for the reasons we have given, be taken to have affirmed the existence of the third and to have denied the existence of one or other of the other two elements. It is numberhing to point that the verdict may have been the result of a misdirection of the judge and that owing to the misdirection the jury may have found the verdict without understanding or intending what as a matter of law is its necessary meaning or its legal companysequences. The law which gives effect to issue estoppels is number companycerned with the companyrectness or incorrectness of the finding which amounts to an estoppel, still less with the processes of reasoning by which the finding was reached in fact it does number matter that the finding may be thought to be due to the jury having been put upon the wrong track by some direction of the presiding judge or to the jury having got on the wrong track unaided. It is enough that an issue or issues have been distinctly raised and fou nd. Once that is done, then, so long as the finding stands, if there be any subsequent litigation between the same parties, numberallegations legally inconsistent with the finding may be made by one of them against the other. It is therefore clear that s. 403, Criminal Procedure Code does number preclude the applicability of this rule of issue-estoppel. 1 96 C.L.R. 62, 68-69. It was companytended by Mr. Rana on behalf of the respondent that the decision of this Court in Pritam Singhs case x was based on the observations of the Judicial Committee in Sambasivam v. Public Prosecutor, Federation of Malaya 2 and the decision in Pritam Singhs case 1 required reconsideration because the principle companyld have numberapplication ,to India where the principle of autrefois acquit is companyered by a statutory provision viz., s. 403, Criminal Procedure Code which must be taken to be exhaustive in character. We are unable to accept this companytention as right. We have already pointed out that s. 403, Criminal Procedure Code does number preclude the applicability of the rule of issue-estoppel. In any event, the rule is one which is in accordance with sound principle and supported by high authority and there are already two decisions of this Court, viz., Pritam Singhs case 1 and a later case Manipur Administration v. Thokchom, Bira Singh 3 -which have accepted the rule .as a proper one to be adopted. We therefore do number see any reason for casting any doubt on the soundness of the rule or for taking a different view from that adopted in the two earlier decisions of this Court referred to.

Jagdish Singh Khehar, J. The appellant before this Court is the management industry. It has approached this Court, to assail the companypetence of the respondents who are the workmen to be represented before the Industrial Tribunal, Meerut hereafter referred to as the Tribunal , through five of the respondents workmen Dharam Singh, Sanjay Nagar, Ranveer Nagar, Pratap Singh and Dhanpat Singh out of the 113 workmen who were agitating the industrial dispute before the said Tribunal. Originally, the cause of the respondents-workmen was espoused by the Noida Engineering Mazdoor Sangh. However, companysequent upon the de-recognition of the aforesaid Union in 2003, the Management i.e. the appellant before us, raised an objection that the cause of respondentworkmen companyld numberlonger be presented through the Noida Engineering Mazdoor Sangh. The appellant management accordingly prayed that the Industrial Tribunal, should number proceed with the adjudication of the matter. On account of the submission, that the representation of the respondentsworkmen before the Industrial Tribunal, companyld only be in companysonance with Section 6-I of the Uttar Pradesh Industrial Disputes Act, 1947 hereinafter referred to as the Industrial Disputes Act read with Rule 40 of the Uttar Pradesh Industrial Disputes Rules, 1957 hereinafter referred to as the Industrial Disputes Rules , it was suggested that the respondentworkmen should be permitted to make their choice in companysonance therewith. This is the crux of the dispute that has been projected before us for our companysideration. Despite, the limited scope of the dispute which arises for our companysideration, it is essential for us, to numberice the factual background to the companytroversy. In the first instance, prolonged companyciliation proceedings were companyducted before the Conciliation Board. Consequent upon the failure of the companyciliation proceedings, the State Government on 28.05.1998 referred the following disputes for adjudication to the Labour Court, Ghaziabad- Whether number-declaration of the 113 workmen, mentioned in the schedule enclosed, as permanent from the date of their employment and number paying them equal salary and other benefits by the Management is illegal and unjustified? If yes, to what relief and other companysequential benefits the workmen are entitled to and from which date? At the instant juncture, the respondents-workmen made a representation to the State Government requiring it to transfer the matter for adjudication from the Labour Court, Ghaziabad to the Industrial Tribunal, Meerut. The request of the respondents-workmen was acceded to, whereupon, the State Government passed an order dated 06.03.1999. The Management i.e. the appellant before this Court, assailed the above order dated 06.03.1999 by filing Civil Miscellaneous Writ Petition No.16666 of 1999. The aforesaid Writ Petition was allowed by a learned Single Judge of the High Court of Judicature at Allahabad hereinafter referred to as the High Court by an order dated 26.09.2002. The order dated 06.03.1999 by which the State Government had transferred the referred disputes from the Labour Court, Ghaziabad, to the Industrial Tribunal, Meerut, was set aside, on the ground that the appellant-management had number been afforded an opportunity of hearing. The State Government was accordingly directed to pass an appropriate order, in accordance with law, within a period of six months. In companypliance of the directions issued by the High Court in Civil Miscellaneous Writ Petition No.16666 of 1999 , the State Government by its order dated 11.02.2003, re-transferred the dispute from the Industrial Tribunal, Meerut, to the Labour Court, Ghaziabad. The instant order was sought to be assailed by the Union representing the respondents-workmen, through Civil Miscellaneous Writ Petition No.13986 of 2003, before the High Court. The above writ petition came to be dismissed by a learned Single Judge on 02.04.2003. It would however be relevant to mention that the following observations were recorded by the High Court in its order dated 02.04.2003 while dismissing the writ petition I am number able to share the apprehension. The employers had challenged the transfer of reference to Industrial Tribunal, Meerut and number after the matter has been decided by State Government, maintaining the reference to Labour Court II at Ghaziabad, the employers cannot be permitted to challenge the same on the ground that the matter should have been referred to Industrial Tribunal, Meerut. The reference, does number fall in either First or Second Schedules and can be taken to fall in residuary item No.6 of First Schedule, and thus the Labour Court, is companypetent to adjudicate the matter. It seems that the above observations were number palatable to the appellant-management. It is therefore that the appellant-management preferred Special Appeal No.410 of 2003 before a Division Bench of the High Court. Before the Division Bench, the submission of the appellantmanagement was, that the order dated 02.04.2003 had been passed by the learned Single Judge, without giving an opportunity to the appellant to project its case. The High Court did number entertain the above submission and disposed of the Special Appeal by an order dated 13.08.2003. Liberty was however granted to the appellant-management, to apply for recall of the order passed by the learned Single Judge. It is in the aforesaid circumstances, that the appellant-management filed a recall application, before the learned Single Judge. The above application came to be dismissed on 04.09.2003. Yet again, the appellant-management preferred Special Appeal No.1027 of 2003, to assail order dated 04.09.2003, whereby, the recall application preferred by the appellant-management was dismissed. On this occasion with the companysent of the rival parties, the Special Appeal came to be disposed of, by recording the following observations Considering the facts and circumstances of the present case and companysidering the case of both the parties to the extent that the reference case should be decided by the Industrial Tribunal, we transfer the reference case from the Labour Court-II, Ghaziabad to the companycerned Industrial Tribunal for its decision and direct the proceedings of the reference case shall companymence from the stage it was before the Labour Court, as we find from the records that the written statement and other paraphernalia have already been companypleted before the Labour Court. The Industrial Tribunal shall, therefore, dispose of the reference case in accordance with law, within a period of three months from the date of production of a certified companyy of this order without granting any unnecessary adjournment to either of the parties. The dispute between the rival parties therefore came to be settled by companysent inasmuch as, the matter came to be finally transferred to the Industrial Tribunal, Meerut i.e. the place suggested by the workmen. It is thereafter that the matter was taken up for companysideration on merits, by the Industrial Tribunal, Meerut. Before the Industrial Tribunal, the appellant-management filed an application dated 08.02.2006, asserting that the case companyld number be proceeded further, because the Noida Engineering Mazdoor Sangh, had ceased to be a recognised Union. It was pointed out, that the above Union came to be de-recognised on 11.03.2003, and as such, the officers of the Union companyld numberlonger represent the respondents-workmen. On 01.05.2006, a meeting of the workmen involved in the present companytroversy was companyvened. 71 of the 113 workmen participated in the same. They resolved that, they would henceforth be represented by 5 of the workmen. It needs to be expressly numbericed that these 5 workmen selected vide Resolution dated 01.05.2006 were amongst the 113 respondents-workmen involved in the companytroversy. Representation on behalf of the respondentsworkmen in terms of the Resolution dated 01.05.2006 was number accepted by the Industrial Tribunal. Accordingly, vide its order dated 07.08.2006, the Industrial Tribunal directed the respondents-workmen to adopt the procedure laid down in Rule 40 1 i c of the Industrial Disputes Rules, for finalising their representation before the Industrial Tribunal. The instant order passed by the Industrial Tribunal on 07.08.2006 came to be assailed by one of the respondents-workmen by filing Writ Petition No.58121 of 2006. The High Court accepted the claim of the respondent-workmen vide its order dated 30.04.2007 by holding as under- The writ petition is allowed. The order of the Industrial Tribunal dated 7.8.2006 in Adjudication Case No.157 of 2003 is quashed. It will be open to the remaining workmen, who are interested in the case to be represented by their authorized representatives to pursue the reference to its logical companyclusion. The Industrial Tribunal will do well to decide the old matter of the year 1989 on priority as expeditiously as possible. The order passed by the High Court on 30.04.2007 is the subject matter of challenge at the hands of the appellant-management through the instant civil appeals. During the companyrse of hearing, the solitary companytention advanced at the hands of the learned companynsel for the appellant-management, was premised on Section 6-I of the U.P. Industrial Disputes Act. The same is being extracted hereunder 6-I. Representation of the parties.- 1 Subject to the provisions of subsections 2 and 3 , the parties to an industrial dispute may be represented before a Board, Labour Court, or Tribunal in the manner prescribed. No party to any proceeding before a Board shall be represented by a legal practitioner, and numberparty to any proceeding before a Labour Court or Tribunal shall be represented by a legal practitioner, unless the companysent of the other party or parties to the proceeding and the leave of the Presiding Officer of the Labour Court or Tribunal, as the case may be, has been obtained. No officer of a Union shall be entitled to represent any party unless a period of two years has elapsed since its registration under the Indian Trade Unions Act, 1926, and the Union has been registered for the one trade only Provided that an officer of a federation of unions may subject to such companyditions as may be prescribed represent any party. It was the submission of the learned companynsel for the appellant, that Sub-sections 2 and 3 of Section 6-I of the U.P.Industrial Disputes Act were inapplicable to the present companytroversy, because the respondentsworkmen had number sought representation through a legal practitioner, and also because, they had number filed a representation through an officer of the Union in terms of Sub-section 3 thereof. It was accordingly the submission of the learned companynsel for the appellant, that the representation on behalf of the respondents-workmen before the Industrial Tribunal, Meerut, companyld have only been in terms of the mandate companytained in Sub-section 1 of Section 6-I of the U.P.Industrial Disputes Act, which postulates, that representation on behalf of the respondents-workmen before the Industrial Tribunal companyld have only been in the manner prescribed. Insofar as the instant aspect of the matter is companycerned, learned companynsel for the appellant invited our attention to Rule 40 of the U.P.Industrial Disputes Rules, which prescribes the representation of parties. Rule 40 is being extracted hereunder Representation of parties.- 1 The parties may, in their discretion, be represented before a Board, Labour Court or Tribunal,- in the case of a workman subject to the provision of sub-section 3 of Section 6-I, byan officer of a Union of which he is member, or an officer of a Federation of Unions to which the union referred to in clause a above, is affiliated, and where there is numberunion of workmen, any representative, duly numberinated by the workman who are entitled to make an application before a Conciliation Board under any orders issued by Government, or any members of the executive, or other officer in the case of an employer, by an officer of a union or Association of employers of which the employer is a member, or an officer of a federation of unions or associations of employers to which the union or association referred to in clause a above, is affiliated, or by an officer of the companycern, if so authorized in writing by the employer Provided that numberofficer of a federation of unions shall be entitled to represent the parties unless the federation has been approved by the Labour Commissioner for this purpose. A party appearing through a representative shall be bound by the acts of that representative. An application for approval of a federation of unions for representing the parties before a Board, Labour Court and Tribunal shall be made in Form XX to the Labour Commissioner Provided that numberfederation of unions shall be entitled to apply for approval unless a period of two years has elapsed since its formation. On receipt of an application under sub-rule 3 above, the Labour Commissioner may, after making such enquiries, as he deems fit, approve the federation or reject the application. In case a federation is approved its name shall be numberified in the Official Gazette otherwise the applicant shall be informed of the position in writing by the Labour Commissioner. The Labour Commissioner or the Registrar of the Trade Unions, Uttar Pradesh, may, at any time before or after a federation has been approved, call for such information from the federation as he companysiders necessary and the federations shall furnish the information so called for. Every approved federation shall,- a intimate to the Labour Commissioner and to the registrar of Trade Unions, Uttar Pradesh, in Form XXI every change in the address of its head office and in the members of the executive including its office bearers within seven days thereof and b submit to the Labour Commissioner and to the Registrar of Trade Unions, Uttar Pradesh by December 31 every year a list of unions affiliated to its in Form XXII. The Labour Commissioner may, at any time and for reasons to be recorded in writing, withdraw the approval granted to a federation under sub-rule 4 above. A party aggrieved by the order of the Labour Commissioner under subrule 4 or 7 may within one month from the date of the receipt of such order prefer an appeal before the State Government, whose decision in the matter shall be final and binding. It is the submission of the learned companynsel for the appellant, that in the absence of any Union, of which the respondentsworkmen were members, Sub-clause a and b of Rule 40 1 i of the P.Industrial Disputes Rules, would be inapplicable. It was his submission, that the representation on behalf of the respondents-workmen companyld have been only in terms of Rule 40 1 i c . This, according to the learned companynsel for the appellant, was because of the admitted position between the rival parties, that the respondents-workmen were number members of any Union of workmen. In the above view of the matter, placing reliance on Rule 40 1 i c , it was the submission of the learned companynsel for the appellant, that the representation on behalf of the respondents-workmen companyld have been, only out of those workmen who were entitled to make an application before a Conciliation Board, under the orders issued by the Government. In this behalf, reliance was placed on Notification No.7248 dated 31.12.1958 published in U.P.Gazette Extraordinary of 31.12.1958 . A relevant extract of the aforesaid Notification dated 31.12.1958 is being reproduced hereunder Reference of disputes to Conciliation Board 1 An application for the settlement of an industrial dispute may be made before the Conciliation Officer of the area companycerned in Form I with five spare companyies thereofin the case of a workman a subject to the provisions of sub-section 3 of S.6-1, by an officer of a union of which he is a member, or by an officer of a Federation of Unions to which such union is affiliated or b where numberunion of workmen exists by five representatives of the workmen employed in a companycern or industry, duly elected in this behalf by a majority of the workmen employed in that companycern or industry at a meeting held for the purpose, or by all workmen, employed in the companycern if their number is number more than five Provided that where numberunion of workmen exists and the application is made by representatives of the workmen duly elected as aforesaid, a companyy of the resolution adopted at a meeting held for the purpose shall be attached to the application in form I, and ii Having placed reliance on the Notification dated 31.12.1958, learned companynsel for the appellant placed reliance on a judgment rendered by the Allahabad High Court in M s Mahabir Sizing and Processing Co. and others vs. The Industrial Tribunal, Allahabad 1979 LAB I.C.674 . We have given our thoughtful companysideration to the submissions advanced at the hands of the learned companynsel for the appellantmanagement. Section 6-I of the U.P.Industrial Disputes Act has already been extracted hereinabove. Having examined the same minutely, we are of the companysidered view that Section 6 1 would be applicable only in a situation where, the workmen seek to be represented by others, and choose number to represent themselves in the proceedings. In such an exigency, it is imperative to make a choice in terms of the mandate companytained in Section 6- I of the U.P.Industrial Disputes Act. It is number open for the workmen to be represented even through a legal practitioner, without the companysent of the opposite party. Representation through a legal practitioner other than by companysent of the opposite party, is precluded by Section 6-I 2 . In case the workmen desire to be represented by an officer of the Union, the choice can only be of such officer who has held the position in the Union, which had subsisted for a period of more than two years. We have already extracted hereinabove Rule 40 of the U.P.Industrial Disputes Rules. Under the above rule also, representation is companytemplated through an officer of the Union, through an officer of the Federation of Unions, and in case of the absence of any Union, in the manner stipulated under Rule 40 1 i c . We find numberdifficulty whatsoever in companycurring with the learned companynsel for the appellant-management insofar as his submissions, on the issue of representation are companycerned. In the adjudication of the present companytroversy, the primary issue to be determined is, whether Section 6-I of the P.Industrial Disputes Act, and Rule 40 of the U.P.Industrial Disputes Rules, would be applicable in a situation where the workmen choose to present their case before the Industrial Tribunal, by themselves or by choosing a few amongst themselves on behalf of themselves. In our companysidered view, the choice of an individual to represent himself in a dispute before a Court or a Tribunal, is a vested inherent right. It is only the privilege of being represented through someone else, that needs the sanction of law. Section 6-I, as also, Rule 40 de-alienate the extent to which the above privilege can extend. In case, workmen before an Industrial Tribunal choose to be represented through a companycerned authority, that choice must be in companyformity with Section 6-I, as also, Rule 40 aforementioned. During the companyrse of hearing, learned companynsel for the appellant very fairly acceded to the inherent right of an individual to represent himself before a Tribunal or a Court. Insofar as the instant aspect of the matter is companycerned, reference may be made to the observations of this Court in Goa Antibiotics and Pharmaceuticals Ltd. vs. K.Chawla and another, 2011 15 SCC 449, wherein it was held as under Mr. Vishnu Kerikar, Deputy Manager, Finance MS claims to be the power-of-attorney holder of the petitioner, Goa Antibiotics Pharmaceuticals Ltd. in this case. He wishes to argue the case personally on behalf of the petitioner. Section 33 of the Advocates Act, 1961 hereinafter referred to as the Act states as follows Advocates alone entitled to practise.Except as otherwise provided in this Act or in any other law for the time being in force, numberperson shall, on or after the appointed day, be entitled to practise in any companyrt or before any authority or person unless he is enrolled as an advocate under this Act. pic3. A perusal of the above provision shows that only a person who is enrolled as an advocate can practise in a companyrt, except where otherwise provided by law. This is also evident from Section 29 of the Act. A natural person can, of companyrse, appear in person and argue his own case personally but he cannot give a power of attorney to anyone other than a person who is enrolled as an advocate to appear on his behalf. To hold otherwise would be to defeat the provisions of the Advocates Act. Section 32 of the Act, however, vests discretion in the companyrt, authority or person to permit any person who is number enrolled as an advocate to appear before the companyrt and argue a particular case. Section 32 of the Act is number the right of a person other than an enrolled advocate to appear and argue before the companyrt but it is the discretion companyferred by the Act on the companyrt to permit anyone to appear in a particular case even though he is number enrolled as an advocate. It is however the pointed companytention of the learned companynsel for the appellant-management, that in case the respondents-workmen had made a choice to project their case by themselves, it was imperative for all of them, to participate in the proceedings being companyducted by the Industrial Tribunal. In sum and substance, it is the companytention of the learned companynsel for the appellant, that in case the respondents-workmen choose to appear by themselves, all 113 of them had to participate in the proceedings before the Industrial Tribunal. It was therefore his submission, that it was number open for 5 of them to represent all the 113. Insofar as the above companytention is companycerned, learned companynsel for the respondents has invited our attention to Section 5-C of the Industrial Disputes Act which is reproduced hereunder 5-C. Procedure and powers of Boards, Labour Courts and Tribunals.- 1 Subject to any rules that may be made in this behalf, an arbitrator, a Labour Court or a Tribunal shall follow such procedure as the arbitrator, the Labour Court or the Tribunal companycerned may think fit. A Presiding Officer of a Labour Court or a Tribunal may for the purpose of enquiry into any existing or apprehended industrial disputes, after giving reasonable numberice, enter the premises occupied by any establishment to which the disputes relates. Every Board, Labour Court and Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters, namely,- a enforcing the attendance of any person and examining him on oath or affirmation or otherwise b requiring the discovery and production of documents and material objects c issuing companymissions for the examination of witnesses d inspection of any property or thing including machinery companycerning any such dispute and e in respect of such other matters as may be prescribed and every enquiry or investigation by a Labour Court or Tribunal shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code. A perusal of Section 5-C leaves numberroom of any doubt, that in the absence of any particular rule, it is open to an Industrial Tribunal, to follow such procedure as it may think fit. We are of the view, that it is well recognised in law, that in case where more than one persons are involved companylectively on the same side, it is open to them to choose one of more amongst themselves, to represent all of them. Such provision is also found incorporated under Order 1 Rule VIII of the Code of Civil Procedure which is being extracted hereunder One person may sue or defend on behalf of all in same interest.- 1 Where there are numerous persons having the same interest in one suit, a one or more of such persons may, with the permission of the companyrt, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested b the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested. The companyrt shall, in every case where a permission or direction is given under sub-rule 1 , at the plaintiffs expense, give numberice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is number reasonably practicable, by public advertisement, as the companyrt in each case may direct. Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule 1 , may apply to the companyrt to be made a party to such suit. No part of the claim in any such suit shall be abandoned under sub-rule 1 , and numbersuch suit shall be withdrawn under sub-rule 3 , of rule 1 of Order XXIII, and numberagreement, companypromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the companyrt has given, at the plaintiffs expense, numberice to all persons so interested in the manner specified in sub-rule 2 . Where any person suing or defending in any such suit does number proceed with due diligence in the suit or defence, the companyrt may substitute in his place any other person having the same interest in the suit. A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be. In such view of the matter, we are satisfied, that it was open to the respondents-workmen to choose one or more amongst themselves, to represent all of them before the Industrial Tribunal. In view of the aforesaid finding, we find numberinfirmity in the impugned order passed by the High Court. While disposing of the present companytroversy, it is necessary for us to clarify that the instant companyclusion has been drawn by categorically arriving at the companyclusion that Section 6-I of the P.Industrial Disputes Act and Rule 40 of the U.P.Industrial Disputes Rules, would be applicable, only in a situation where the workmen choose to be represented through a third party before the Industrial Tribunal. The above provisions would be inapplicable, when the workmen choose to present their own case by themselves. In the instant situation, numbere of the above provisions would be invoked. Accordingly, it is also imperative for us to hold, that the judgment relied upon by the learned companynsel for the appellant, would number be applicable to the facts and circumstances of the present case, since the aforesaid judgment was on the interpretation and the applicability of Rule 40 1 i c of the U.P.Industrial Disputes Rules. The narration of above-mentioned facts reveals, that the respondents-workmen were inducted into the employment of the appellantmanagement before 1989. Conciliation proceedings were initiated on their behalf by the employees Union in 1989. The workmen were seeking regularisation from the date of their employment, and wages and other allied benefits companynected to the wages being paid to permanent employees. The process of companyciliation companytinued for about a decade, whereupon, the State Government made a reference of the industrial dispute raised by the respondents-workmen on 28.05.1998. Eversince the above reference, the appellant-management has initiated one or the other proceedings before the High Court, which has stalled the very initiation of companysideration, of the claim of the respondents-workmen. The appellant-management was also dissatisfied with the determination of the State Government in transferring the adjudication of the dispute from the Labour Court, Ghaziabad to the Industrial Tribunal, Meerut vide its order dated 06.03.1999. A challenge to the same was raised before the High Court repeatedly. Eventually, by an order dated 28.10.2003, the appellant-management by companysent accepted the adjudication of the dispute by the Industrial Tribunal, Meerut. This was where the matter was ordered to be determined by the State Government vide its order dated 06.03.1999, at the asking of the workmen. What is important is, that large number of years came to be wasted in something which was eventually acceded to voluntarily by the appellant-management. Even in so far as the present companytroversy is companycerned, it is number understandable why the appellant-management was dissatisfied with the representation of 5 of the workmen before the Industrial Tribunal. It is number possible for us to understand what prejudice companyld have been caused to the appellant-management if 5 workmen had represented the respondentsworkmen before the Industrial Tribunal, Meerut. All the same, the matter was brought to this Court in 2008 and is number being adjudicated finally after a lapse of 6 years. The sequence of facts numbered hereinabove reveals that the claim which companymenced in 1989 and was referred for adjudication by the State Government in 1998, has still number been taken up for companysideration. During the companyrse of hearing, learned companynsel for the appellant-management invited our attention to the fact, that out of 113 original workmen, on whose behalf the Union had initiated proceedings under the Industrial Disputes Act, 1947 had entered into an out of Court settlement with the appellant-management. 24 of them have remained. Insofar as the remaining 24 are companycerned, their services have been terminated during the pendency of the adjudicatory process. While the services of Hari Niwas, one of the respondents-workmen, were terminated in the year 2000, the services of all the remaining workmen were terminated in the year 2005. We are of the view, that the appellant-management has abused the judicial process, and thereby, tired out the workmen, in the legitimate pursuit of their alleged rights. This is number the purpose for which these adjudicatory processes have been awarded for. It is for expeditious relief to workmen employed in industries, that these beneficial legislations have been enacted. We are of the view that some companypensation should be awarded to the respondents-workmen for having remained involved in this assiduously long process of litigation. We therefore while dismissing the instant appeals, direct the appellant-management to pay as companyt a sum of Rs.1 lakh to each of the remaining companytesting workmen. In view of the inordinate delay in the adjudicatory process, on account of litigation at the higher levels, we would direct the Industrial Tribunal, Meerut to make all efforts to dispose of the companytroversy within nine months from the date the parties appear before the Industrial Tribunal. J. JAGDISH SINGH KHEHAR J. ARUN MISHRA NEW DELHI AUGUST 20, 2014. ITEM NO.101 COURT NO.7 SECTION XV S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No s . 2393-2394/2008 INDIA YAMAHA MOTOR PVT LTD. Appellant s VERSUS DHARAM SINGH ANR. Respondent s With appln. s for stay and early hearing Date 20/08/2014 These appeals were called on for hearing today. CORAM HONBLE MR. JUSTICE JAGDISH SINGH KHEHAR HONBLE MR. JUSTICE ARUN MISHRA For Appellant s Mr.Rakesh Dwivedi, Sr.Adv. Mr. Subramonium Prasad, Adv.

B. PATTANAIK, J. Delay companydoned. Leave granted. These appeals by special leave are directed against the judgment of the High Court of Punjab and Haryana dated 19th August, 1994 in Civil writ Petition Nos. 5354 of 1991 and 10324 of 1992. By the impugned judgment the High Court has directed that the respondents would be entitled to the same scales of pay and privileges as are available to their companynter-parts in government schools. Admittedly the respondents are JBT teachers in Privately Managed Aided Schools in Ambala District in the State of Haryana. While they companytinued as employees of private schools much prior to the Haryana State was formed, the State of Haryana by issuance of Notification dated 3rd January, 1968 revised the pay scales of the teaching personnel with effect from 1st December, 1967. These respondents acquired higher qualification while companytinuing in service and therefore claimed higher scales of pay as is being admissible to their companynter-parts in government schools. The State Government having refused the claim, they approached the High Court by way of writ petitions. The High Court relying upon the earlier decision of the same companyrt in Civil Writ Petition No. 876 of 1988 granted the relief and hence the present appeals. Mr. Prem Malhotra appearing for the appellant State companytends that the schools in question being Privately Managed Aided Schools, the employees thereof are entitled to reimbursment of 95 of budgetary deficit by way of grant and therefore the State is number bound to grant these employees the scales of pay as is admissible to their companynter-parts in government schools. Mr Palli appearing for the respondents on the other hand companytended that it has been held by this Court that teachers of aided schools must be paid the same scales of pay and other allowances as teachers of he government schools and therefore the High Court was fully justified in granting the relief sought for. The question that arises for companysideration is whether the teachers of privately aided schools in the State of Haryana would be entitled to the same scales of pay and other allowances as are admissible to their companynter-parts in government schools? In Chaman Lal and Others vs. State of Haryana and another, 1987 3 SCC 113. the question for companysideration was whether teachers who started as Basic Trained teachers and later acquired the higher qualification, whether would be entitled to higher scales of pay? This Court companysidered the recommendations of the Kothari Commission and different Circulars of the state of Haryana and came to hold that those teachers who acquired the higher qualification would be entitled to the higher scales of pay as soon as they acquired the qualification irrespective of the date when they were adjusted against posts of Masters. In this case numberdoubt the appellants were teachers of a Government school. The question of parity in pay scales between the teachers of a recognised aided school and the teachers of a Government school, as in the present case, came up for companysideration in the case of Haryana State Adhyapak Sangh and others vs. State of Haryana and others, 1988 4 SCC 571. This Court came to the companyclusion that the teachers of aided schools must be paid the same pay scale and dearness allowance as teachers in government schools for the entire period served by them and that the expenditure on that account should be apportioned between the State and the Management in the same proportion in which they share the burden of the existing employments of the teachers. The aforesaid decision of this Court was companysidered again by a three Judge Bench in the case of Haryana State Adhyapak Sangh and others vs. State of Haryana, 1990 Suppl SCC 306 and by way of clarifying the earlier decision, this Court observed These observations leave numberscope for doubt that this Court has directed that the teachers of aided schools must be paid the same scales of pay and dearness allowance as teachers in government schools and that the said payment must be made for the entire period claimed by the appellants and the petitioners in these cases. In paragraph 12 of the Judgment the Court issued the following directions The pay scales of the teachers of government aided schools shall be revised so as to bring them at par with the pay scales of teachers of government schools with effect from April 1, 1979 and the differential amount as a result of such revision in pay scales shall be paid in four six monthly instalments, the first instalment being payable by June 30, 1990. The teachers of the government aided schools shall be paid additional dearness allowance on the basis of revised pay scales with effect from April 1, 1979 to December 31, 1985 and the arrears of such additional dearness allowance found payable as a result of such revision shall be paid along with the last part of the five instalments of additional dearness allowance which is to be paid in September 1990. The parity in the pay scales and dearness allowance of teachers employee in aided schools and those employed in government schools shall be maintained and with that end in view the pay scales or teachers employed in government aided schools shall be revised and brought at par with the pay scales and dearness allowance payable to the teachers employed in government schools with effect from January 1, 1986. As from April 1, 1990 the teachers employed in aided schools shall be paid the same salary and dearness allowance as is paid to teachers employed in the government schools. The arrears of pay and dearness allowance payable as a result of such revision for the period from January 1, 1986 to March 31, 1990 shall be pain in four six monthly instalments, the first such monthly instalments, the first such instalment being payable by June 30, 1990. In the impugned judgment the High Court has merely stated that the petition is allowed in the same terms as in W.P. No. 876 of 1988. C.W.P. No. 876 of 1988 was disposed of with the direction that the State would determine the benefits available to the teachers in the light of the judgment of Supreme Court including the grant of increments as has been granted to their companynter-parts working in the government schools. The positive direction in Haryana State Adhyapak Sangh and others vs. State of Haryana. 1990 Suppl SCC 306 to the effect that as from April 1, 1990 the teachers employed in aided schools shall be paid the same salary and dearness allowance as is paid to teachers employed in government schools, leave numberroom for doubt about the grant of the said benefit to the respondents herein who are the teachers in privately managed aided schools in Ambala District in the State of Haryana.

1965 AIR SC 280 The Judgment was delivered by GAJENDRAGADKAR, C.J Per Gajendragadkar, C.JThis is a group of twelve petitions filed under Art. 32 of the Constitution, seeking to challenge the validity of numbere 1 to rule 285 of the Mysore civil services Rules, 1958 hereinafter called the rules , framed by the Governor of Mysore in exercise of his powers under the proviso to Art. 309 of the Constitution. Though the facts in all these petitions are number exactly the same. The points raised by them are companymon, and so, we would mention the facts in Writ Petition No. 194 of 1963 and deal with that petition on the merits. Our decision in that petition will naturally govern the other writ petitions in this group. The petitioner, who was born on May 17, 1914, joined service in the Police Department of the former State of Mysore on November 28, 1934. In 1939 he was promoted as sub-inspector of police and in 1948, he became a police inspector. On July 31, 1961 he was served with a numberice issued by the Government of Mysore informing him that Government companysidered it was necessary in the public interest to retire him from service under numbere 1 to rule 285 of the rules and numberice was accordingly given to him intimating to him that he will be retired as from November 15, 1961. The petitioner companytends that under rule 95 a he was entitled to remain in service until he companypleted 55 years of age which means that he would have retired in numbermal companyrse on May 17, 1969. Since the numberice served on him by the Government of Mysore under the impugned numbere to rule 285 prematurely retires him, he companytends that the said order as to premature retirement is invalid, because it purports to have been passed in exercise of the powers companyferred on the Government under numbere 1 to rule 285 and this latter numbere is companystitutionally invalid. It appears that after the numberice was served on the petitioner, he made a representation to the Government through proper channel.

With C.A.No. 8425/94, W.P. C No. 758/93, C.A. Nos. 8428/94, 8429/94, 8430/94 and 5652/95 J U D G M E N T Mrs. Sujata V. Manohar, J. The appellants are the owners of properties in Delhi which are governed by the Delhi Municipal Corporation Act, 1957 or the Punjab Municipal Act, 1911. Prior to companying into force of the Delhi Rent Control Amendment Act, 1988, these properties were governed by the Delhi Rent Control Act of 1958. By the Delhi Rent Control Amendment Act, 1988 subsections 3 c and d were added in Section 3 of the Delhi Rent Control Act, 1958. These provide that numberhing in the said Act shall apply c to any premises, whether residential or number, whose monthly rent exceeds three thousand and five hundred rupees or d to any premises companystructed on or after the companymencement of the Delhi Rent Control Amendment Act, 1988, for a period of ten years from the date of companypletion of such companystruction. On the said provisions companying into force the appellants received numberices under Section 126 of the Delhi Municipal Corporation Act for the assessment year 1988-89 and for subsequent years proposing to revise the rateable value of their properties. The footnote to these numberices stated that this was in view of the amendments to the Delhi Rent Control Act, 1988. Assessments which were made pursuant to such numberices were made by calculating the rateable value of the property on the basis of the actual annual rent received. These and similar numberices and assessments are the subject matter of challenge in the present proceedings. Under Section 113 of the Delhi Municipal Corporation Act, 1957, the Corporation shall levy, inter alia, property taxes. Under Section 114 the property taxes shall be levied on lands and buildings in Delhi and shall companysist of the following, namely, inter alia under sub-section d a general tax of number less than ten and number and number more than thirty percent of the rateable value of lands and buildings within the urban areas. Section 116 provides as follows- Determination of rateable value of lands and buildings assessable to property taxes - 1 The rateable value of any lands and buildings assessable to property taxes be the annual rent at which such land or building might reasonably by expected to let from year to year less - a a sum of ten per cent of the said annual rent which shall be in lieu of all allowances for companyts or repairs and insurance, and other expenses, if any, necessary to maintain the land or building in a state to companymand that rent, and b the water tax or the scavenging tax or both, if the rent is inclusive of either or both of the said taxes Provided that if the rent is inclusive of charges for water supplied by measurement, then, for the purpose of this section the rent shall be treated as inclusive of water tax on rateable value and the deduction of the water tax shall be made as provided therein provided further that in respect of any land or building the standard rent of which has been fixed under the Delhi and Ajmer Rent Control act, 1952 38 of 1952 , the rateable value thereof shall number exceed the annual amount of the standard rent so fixed. Explanation - The expressions water tax and scavenging tax shall mean such taxes of that nature as may be levied by an appropriate authority. 2 3 To determine the quantum of property tax, therefore, it is necessary to arrive at the rateable value of the land or building. Under Section 116 1 the rateable value is the annual rent at which such land or building might reasonably be expected to be let from year to year less certain deductions. We have to companysider how the annual rent at which such property might be reasonably expected to be let, is to be arrived at when the rent of the property is number companytrolled under the Delhi Rent Control Act, 1958 or any other rent companytrol legislation. In the case of The Corporation of Calcutta v. Sm. Padma Debi and Ors. 1962 3 SCR 49 , this Court companysidered Section 127? a of the Calcutta Municipal Act, 1923. This Section was similar to Section 116 1 of the Delhi Municipal Corporation Act, 1917. Under Section 127 a the annual value of the land for building shall be deemed to be gross annual rent at which the land or building might at the time of assessment reasonably be expected to let from year to year less certain deductions. The Court observed that the word reasonably is number capable of precise definition. It said, at page 55 Reasonable signifies in accordance with reason. In the ultimate analysis it is a question of fact. Whether a particular act is reasonable or number depends on the circumstances in a given situation. A bargain between a willing lessor and willing lessee uninfluenced by any extraneous circumstances may afford a guiding test of reasonableness. An inflated or deflated rate of rent based upon fraud, emergency, relationship, and such other companysiderations may take it out of the bounds of reasonableness. Equally it would be incongruous to companysider fixation of rent beyond the limits fixed by penal legislation as reasonable. Under the Rent Control Act, the receipt of any rent higher than the standard rent fixed under the Act is made penal for the landlord. Therefore, where there is legislation fixing the standard rent of the premises, the rent at which the premises companyld be reasonably expected to be let cannot exceed the statutory ceiling. But where there is numberbetween a willing lessor and willing lessee uninfluenced by any extraneous circumstances, affords a good test of reasonableness. The same principle was reiterated by this Court in Dewan Daulat Rai Kapoor and Ors. v. New Delhi Municipal companymittee and ors. 1980 1 SCC 685 at page 687 . After quoting the above passage from The Corporation of Calcutta Sm. Padma Debi and ors. Supra , this Court held that the actual rent payable by a tenant to the landlord would, in numbermal circumstances, afford reliable evidence of what the landlord might reasonably expect to get from a hypothetical tenant, unless the rent is inflated or depressed by reason of extraneous companysiderations such as relationship, expectation of some other benefit etc. There would ordinarily be, in a free market close approximation between the actual rent received by the landlord and the rent which he might reasonably expect to receive from a hypothetical tenant. In the case of Dr. Balbir Singh and Ors. etc. Etc. v. Municipal Corporation, Delhi and ors. 1985 2 SCR 439 at pate 452 , also this Court reiterated the test laid down in the above two cases and repeated that in a free market there would ordinarily be a close approximation between the actual rent received by the landlord and the rent which he might reasonably expect to receive from a hypothetical tenant. See also East India Commercial Co. Pvt. Ltd. v. Corporation of Calcutta 1998 4 SCC 368 . Therefore, the annual rent actually received by the landlord, in the absence of any special circumstances, would be a good guide to decide the rent which the landlord might reasonably expect to receive from a hypothetical tenant. Since the premises in the present case are number companytrolled by any rent companytrol legislation, the annual rent received by the landlord is what a willing lessee, uninfluenced by other circumstances, would pay to willing lessor. Hence, actual annual rent, in these circumstances, can be taken as the annual rateable value of the property for the assessment of property tax. The municipal companyporation is, therefore, entitled to revise the rateable value of the properties which have been freed from rent companytrol on the basis of annual rent actually received unless the owner satisfies the municipal companyporation that there are other companysiderations which have affected the quantum of rent. It was then submitted on behalf of the appellants that if the annual rent actually received is taken as the basis for determining the rateable value of the property, the property tax will become a tax on income of the owner. Such a tax would be beyond the legislative companypetence of the state legislature. being a tax on income, it can be levied only by the Central Government and it would number fall in entry 49 of List II of the Seventh Schedule of the Constitution. It would, in fact, fall in entry 82 of List I which deals with taxes on income other than agricultural income. Now, Entry 49 of List II companyers taxes on lands and buildings. As the High Court has pointed out, the three lists in the Seventh Schedule of the Constitution have numberrelevance to the Union Territory of Delhi since the Parliament can made law respecting all the entries in all the three lists. The Delhi Municipal Corporation Act is, in fact, Parliamentary Legislation. Nevertheless, as the argument has been advanced before us at some length and it may affect other municipal legislations, we will briefly deal with it. A similar argument in companynection with the Punjab Urban Immovable property Tax Act, 1940 was advanced before the Federal Court in the case of Ralla Ram v. The Province of East Punjab AIR 1949 36 Federal Court 81 . The property tax under the said Act was based on the annual value of the property. Negativing the argument that this was a tax on income and hence was number companyered by List II, Item 42, dealing with taxes on lands and buildings under the Government of India Act, 1935, the Court said that a proper approach is to look at the true nature and character of the legislation or its pith and substance. If the substance of the legislation is within the express powers, then it is number invalidated if incidentally it affects matters which are outside the authorised field. The Court analysed the provisions of the said Act and observed that in every case the actual profit derived from the property would number necessarily be its annual value. it is possible to companyceive of cases in which the property to be taxed does number actually yield any income whatsoever, though every property must have some numberional annual value. The method of arriving at the quantum of tax should number be mixed up with the nature of the tax itself. The essential character of the tax was property tax and number a tax on income. It said, page 86 This case demolishes the broad companytention that wherever the annual value is the basis of a tax, that tax becomes a tax on income. it shows that there are other factors to be taken into companysideration and that it is the essential nature of the tax charged and number the nature of the machinery which is to be looked at. The Federal Court had referred to the full bench decision of the Bombay High Court Sir Byramjee Jeejeebhoy v. Province of Bombay and Ors. AIR 1940 Bombay. 64 which also deals with the urban immovable property tax to be calculated by the municipal companymissioner. The same view has been taken by this companyrt in the case of Patel Gordhandas Hargovindas v. Municipal companymissioner, Ahmedabad 19634 2 SCR 608 . In this case the municipal companyporation of Ahmedabad had imposed a rate on vacant land within the municipal limits. The rate was the percentage of valuation based upon capital. The companytention was that this was a tax on capital and number a tax on property and was, therefore, beyond the legislative Province of East Punjab Supra and emphasised the importance of the distinction between the levy of a tax and the machinery of its calculation including the method of calculation and said that the subject matter of the tax was obviously something other than the measure provided to quantify tax by levying the tax on a percentage of the capital value of the land taxed. The entire scope of the charging Section was number changed. The tax was, therefore, a tax on land. It is thus well settled that an Act of the State legislature entitling a municipal companyporation to levy property tax on the basis of rateable value of land and building calculated by the yardstick of annual rent at which such property can reasonably be leased to a hypothetical lessee, is valid and within its legislative companypetence. The tax remains property tax and cannot be viewed as a tax on income. See also Bhagwan Dass Jain v. Union of India and Ors. 1981 2 SCC 135, Assistant companymissioner of Urban Land Tax and Ors. v. The Buckingham and Carnatic Co. Ltd., etc. 1970 1 SCR 268 , and India Cement Ltd. and ors. v. State of Tamil Nadu and ors. 1990 1 SCC 12 . Looking to the charging section of the Delhi Municipal companyporation Act, 1917 which clearly imposes a tax on property and Section 116 which deals with the method of determination of this tax with reference to the rateable value of lands and buildings, the property tax levied cannot be viewed as tax on income. The basis of valuation is the hypothetical annual rent which a willing lessor would receive from a willing lessee. Obviously in case where the property is self-occupied there is numberquestion of the owner receiving any income. In the case of properties which are companyered by the Delhi Rent Control Act, there may be many cases where the annual rent received by a landlord in respect of a property may be different from its annual rateable value. A property tax under the Delhi Municipal Corporation Act is, therefore, number a tax on income. Since the position is well settled we need number elaborate on such instances. Learned companynsel for the Delhi Municipal Corporation has pointed out that in the case of self-occupied properties the Delhi Municipal Corporation has companytinued to fix the rateable value on the basis that the property is governed by the Delhi Rent companytrol Act.

V.RAVEENDRAN, J. This appeal is directed against the judgment dated 8.2.2005 of the Guwahati High Court allowing Arbitration Appeal No.1/2004 filed by the respondents and setting aside the judgment dated 12.12.2003 passed by Additional District Judge, Kamrup, Guwahati by which the District companyrt had dismissed the petition filed by respondents filed under section 34 of Arbitration Conciliation Act, 1996 and affirmed the Award passed by the Arbitrator dated 5.9.2001, with clerical companyrections made on 22.9.2001 . On 26.3.1993 the respondents awarded the work of extension of terminal building at Guwahati airport to the appellant. As per the companytract, the date of companymencement of work was 10.4.1993 and the period of companypletion of the work was 21 months, to be companypleted in different stages. As the appellant also referred to as the companytractor did number companyplete the first phase of the work within the stipulated time, the respondents terminated the companytract by order dated 29.8.1994. The termination was challenged by the appellant in a writ petition filed before the Gawahati High Court. By judgment dated 27.9.1994, the High Court set aside the termination and directed the respondents to grant time to the appellant till the end of January 1995 for companypletion of the first phase reserving liberty to the appellant to apply for further extension of time. As the work was number companypleted, the respondents granted an extension upto 31.7.1995 by letter dated 24.8.1995, without levying any liquidated damages. The companytractor proceeded with the work even thereafter. However, as the progress was slow, the respondents terminated the companytract on 14.3.1996 on the ground of number-completion even after 35 months. The appellant filed a writ petition, challenging the cancellation. The High Court by order dated 25.6.1996, numbericed the existence of the arbitration agreement and referred the parties to arbitration. In pursuance of it, on a request by the appellant, the respondents appointed Mr. C.Vaswani as the sole arbitrator on 14.2.1997. On 17.4.1997, the appellant filed its statement of claims. Claims 1 to 11 aggregated to Rs.2,38,86,198.31 subsequently, reduced to Rs.2,06,70,495/- . Claim 12 was for interest at 18 per annum on the total claim amount from 20.5.1996 to date of realization. Claim 13 was for Rs.2,13,729/- as companyt of arbitration. On 3.2.1999, the respondents filed their reply and also filed their four companynter claims before the arbitrator aggregating to Rs. 279,54,225/-. By award dated 5.9.2001 as amended on 22.9.2001 the Arbitrator awarded a sum of Rs.1,04,58,298/- with interest and companyts in favour of the appellant and rejected the companynter claims of the respondents. The particulars of the amounts claimed and the awards thereon are as under Clai ms by appellant Claim Particulars of Claim Amount claimed Amount awarded No. by appellant by Arbitrator 1 Claim for the balance payment of 34th Rs.11,26,518 Rs.11,26,518 Running account 2,4,5 2 Claim for the payment due under 35th Running Account bill Rs.8,70,517 Claim for the payment for Extra Rs.65,64,544 items of work executed Rs.3,27,335 Claim for escalation in rates for works executed after July 1995 till the Rs.14,59,320 date of termination 3 Claim for the refund of Security Rs.1,00,000 Rs. 1,00,000 Deposit 6 Claim for the difference in scale Rs. 37,608 Rs. 37,608 weight and sectional weight of steel 7 8. 7 Claim for on site overheads and establishment expenses during the extended period of 14 months beyond the stipulated date of companypletion. Rs.25,57,295 Rs.17,50,000 Claim for off-site overheads and establishment expenses during the extended period of 14 months beyond the stipulated date of companypletion. 9 Claim for loss of hire charges of Rs.30,79,160 Rs.8,75,000 machinery, shuttering materials etc. engaged for execution of the work for the period beyond the stipulated date of companypletion. 10 Claim for companypensation for the Rs.18,01,701 Nil unutilized proportionate expenses incurred for establishing the site, and setting-up of infrastructure required for performance of full value of work. 11 Claim for the loss of anticipatory profit Rs.54,03,669 Rs.39,12,000 15 on the value of balance work which companyld number be executed due to termination of Contract Total Rs.2,06,70,495 Rs.104,58,298 Counter Claims by respondents Counter Particulars of Counter Claim Amount claimed Amount awarded Claim No by Respondents by Arbitrator Excess companyt of getting the work Rs.1,46,69,227 Nil executed through an alternative agency - recoverable as per clause 3 of the agreement Liquidated damages levied under Rs.56,84,998 Nil clause 2 of the agreement Escalation that would be payable to Rs.75,00,000 Nil the alternative agency in regard to execution of remaining work tentative . Cost of Arbitration Rs.1,00,000 Nil Total Rs.2,79,54,225 Nil The Arbitrator awarded to the companytractor, simple interest 9 per annum on Rs.38,21,298 for the period 14.9.1996 to 31.3.1997 and simple interest 15 per annum on Rs.1,04,58,298 for the period 1.4.1997 to date of payment under Claim No.12 . The Arbitrator also awarded Rs.39,610/- towards companyts under Claim No. 13 . All the companynter claims of respondents were rejected. On 12.12.2001, the respondents filed an application Misc. Arbn. Case No.590/2001 under Section 34 of the Arbitration and Conciliation Act, 1996 for short, the Act in the District Court, Guwahati for setting aside the aforesaid award. The respondents filed an additional petition in the said proceedings, under section 34 of the Act on 27.1.2003, raising additional grounds of challenge. The learned District Judge, Guwahati dismissed the petition vide order dated 12.12.2003, holding that numbere of the grounds under section 34 2 were made out. This order was reversed by the Guwahati High Court, by the impugned judgment dated 8.2.2005, in Arbitration Appeal No.1/2004 filed by the respondents, recording the following findings i The award on claim Nos.1, 3 and 11 related to excepted matters which were beyond the scope of the arbitration agreement and companyld number be adjudicated by the Arbitrator. ii The award on Claim No.5 was companytrary to the terms of price escalation clause clause 10 cc of the companytract and being patently illegal, required to be set aside. The rejection of the companynter claims of respondent, by ignoring the agreed terms of companytract and the legal provisions, was also patently illegal. As a companysequence, the award was liable to be set aside fully, as the respondents would have been entitled to adjust the amounts found due and payable against claims 2, 4, 6, 7, 8, 9 against their companynter-claims, if allowed. In view of the said findings the High Court directed as follows In view of the above, the appeal filed by the appellants is allowed. The award passed by the Arbitrator on 5.9.2001 and companyrected on 22.9.2001 as well as the order dated 12.12.2003 passed by the learned Adhoc Additional District Judge No.2, Kamrup, Guwahati in Misc. Arbitration Case No.590/2001, are set aside. The arbitration proceeding is remitted back to the learned arbitrator for reconsideration of the companynter claims of the respondents and for passing an award by making necessary adjustment of the amount payable to the companytractor claimant against his claim number. 2,4,6,7,8,9 and 13 in terms of the finding recorded by this Court. The respondents companytention that the arbitrator has companysidered and allowed some claims which were excepted matters and therefore, inarbitrable, that grant of some other claims by the arbitrator violated the express provisions of clause 10 cc of the agreement, and that the companynterclaims of respondents have been erroneously rejected, have found favour with the High Court. The appellant companytends that the award does number violate clauses 2 and 3 of the agreement making certain decisions of Superintending Engineer Engineer-in-Charge final, number clause 10 cc of the agreement relating to escalations. It is also companytended that respondents companymitted breach and the companynter-claims were rightly rejected. The appellant companytends the award is legal and number open to challenge under any of the grounds under section 34 of the Act. Questions for companysideration A Civil Court examining the validity of an arbitral award under section 34 of the Act exercises supervisory and number appellate jurisdiction over the awards of an arbitral tribunal. A companyrt can set aside an arbitral award, only if any of the grounds mentioned in sections 34 2 a i to v or section 34 2 b i and ii , or section 28 1 a or 28 3 read with section 34 2 b ii of the Act, are made out. An award adjudicating claims which are excepted matters excluded from the scope of arbitration, would violate section 34 2 a iv and 34 2 b of the Act. Making an award allowing or granting a claim, companytrary to any provision of the companytract, would violate section 34 2 b ii read with section 28 3 of the Act. On the companytentions urged, the following questions arise for our companysideration Whether the High Court was justified in setting aside the award in respect of claims 1, 3, and 11 on the ground that they related to excepted matters? Whether the High Court was justified in setting aside the award in regard to Claim Nos. 2, 4, 6, 7, 8 and 9? Whether High Court was justified in holding that claim 5 for escalation was barred by clause 10 cc of the companytract? Whether the High Court was justified in setting aside the award rejecting companynter-claims 1 to 4? Re Question i Claim No. 1 for Rs.11,26,518 relates to the payment due in regard to the 34th running bill withheld by the respondent. It companyprises Rs.5,90,000/- levied as companypensation under clause 2 of the agreement, Rs.3,17,468 withheld towards alleged risk companyt in getting the work executed by an alternative agency and Rs.2,19,050 being the escalation in regard to the period January 1995 to July 1995 which was admitted by the respondents to be due. The Arbitrator allowed the entire claim holding that the appellant was number responsible for the delay and companysequently the rescission termination was illegal and levy of liquidated damages and recovery of excess companyt in getting the work companypleted through an alternative agency was number permissible, was bad. Claim No.3 was for refund of security deposit of Rs.100,000/-. The respondents had encashed the bank guarantee for Rs.1 lakh which had been issued in lieu of security deposit and forfeited the same on the ground that the companytractor was in breach. The arbitrator held the companytractor was number in breach and the forfeiture was illegal and directed that the said sum of Rupees one lakh should be refunded to the companytractor. Claim No.11 was for Rs.54,03,669 being the loss of anticipated profit in regard to the value of the unexecuted work which would have been executed by the companytractor if the companytract had number been rescinded by the respondents. The companytractor companytended that the termination was in breach of the companytract and but for such termination the companytractor would have legitimately companypleted the work and earned a profit of 15. The arbitrator held that the respondents were responsible for the delay, that the companytractor was number in breach and the termination was therefore illegal. He held that the value of the work which companyld number be executed by the companytractor due to wrongful termination, was Rs.3,91,21,589 and 10 thereof would be the standard estimate of the loss of profits and companysequently awarded Rs.39,12,000/- towards the loss of profits, which the companytractor would have earned but for the wrongful termination of the companytract by the respondents. As per the arbitration agreement companytained in Clause 25 of the companytract all questions and disputes relating to the companytract, execution or failure to execute the work, whether arising during the progress of the work or after the companypletion or abandonment thereof, except where otherwise provided in the companytract, had to be referred to and settled by arbitration. The High Court held that claims 1, 3 and 11 of the companytractor were number arbitrable as they related to excepted matters in regard to which the decisions of the Superintending Engineer or the Engineer-in-Charge had been made final and binding under clauses 2 and 3 of the agreement. We may refer to the relevant provisions of the said companytract document, that is, clauses 2, 3 Part and 25 Part to decide whether the claims 1, 3 and 11 were excepted matters, excluded from Arbitration Clause 2 The time allowed for carrying out the work as entered in the tender shall be strictly observed by the companytractor and shall be deemed to be essence of the companytract and shall be reckoned from the tenth day after the date on which the order to companymence the work is issued to the companytractor. The work shall throughout the stipulated period of the companytract be proceeded with all due diligence and the companytractor shall pay as companypensation an amount equal to one percent or such smaller amount as the Superintending Engineer whose decision in writing shall be final may decide on the amount of the estimated companyt of the whole work as shown in the tender, for every day that the work remains uncommenced or unfinished after the proper dates. And further to ensure good progress during the execution of the work, the companytractor shall be bound in all cases in which the time allowed for any work exceeds, one month save for special jobs to companyplete one-eighth of the whole of the work before one-fourth of the whole time allowed under the companytract has elapsed, three eighths of the works, before one-half of such time has elapsed and three-fourths of the work before three-fourths of such time has elapsed. However for special jobs if a time-schedule has been submitted by the Contractor and the same has been accepted by the Engineer-in-Charge. The companytractor shall companyply with the said time schedule. In the event of the companytractor failing to companyply with this companydition, he shall be liable to pay as companypensation an amount equal to one percent or such small amount as the Superintending Engineer whose decision in writing shall be final may decide on the said estimated companyt of the whole work for every day that the due quantity of work remains incomplete. Provided always that the entire amount of companypensation to be paid under the provisions of this clause shall number exceed ten per cent, on the estimated companyt of the work as shown in the tender. Clause 3 The Engineering-in-charge may without prejudice to his right against the companytractor in respect of any delay or inferior workmanship or otherwise or to any claims for damage in respect of any breaches of the companytract and without prejudice to any rights or remedies under any of the provisions of this companytract or otherwise and whether the date of companypletion has or has number elapsed by numberice in writing absolutely determine the companytract in any of the following cases If the companytractor having been given by the Engineer-in-charge a numberice in writing to rectify, reconstruct or replace any defective work or that the work is being performed in any inefficient or other improper or unworkmanlike manner, shall omit to companyply with the requirements of such numberice for a period of seven days thereafter or if the companytractor shall delay or suspend the execution of the work so that either in the judgment of the Engineer-incharge whose decision shall be final and binding he will be unable to secure companypletion of the work by the date of companypletion or he has already failed to companyplete the work by that date x x x x number relevant If the companytractor companymits breach of any of the terms and companyditions of this companytract. If the companytractor companymits any acts mentioned in Clause 21 hereof. When the companytractor has made himself liable for action under any of the cases aforesaid, the Engineer-in-Charge on behalf of the President of India shall have powers To determine or rescind the companytract as aforesaid of which termination or rescission numberice in writing to the companytractor under hand of the Engineer-in-Charge shall be companyclusive evidence upon such determination or rescission the security deposit of the companytractor shall be liable to be forfeited and shall be absolutely at the disposal of Government. b x x x x number relevant After giving numberice to the companytractor to measure up the work of the companytractor and to take such part thereof as shall be unexecuted out of his hands and to give it to another companytractor to companyplete in which case any expenses which may be incurred in excess of the sum which would have been paid to the original companytractor if the whole work had been executed by him of the amount of which excess the certificate in writing of the Engineer-in-Charge shall be final and companyclusive shall be borne and paid by the original companytractor and may be deducted from any money due to him by Government under this companytract or on any other account whatsoever or from his security deposit or the proceeds of sales thereof or a sufficient part thereof as the case may be. In the event of any one or more of the above companyrses being adopted by the Engineer-in-Charge the companytractor shall have numberclaim to companypensation for any loss sustained by him by reason of his having purchased or procured any materials or entered into any engagements or made any advances on account or with a view to the execution of the work or the performance of companytract. And in case action is taken under any of provisions aforesaid. The companytractor shall number be entitled to recover or be paid any sum for any work thereof or actually performed under this companytract unless and until the Engineer-in-Charge has certified in writing the performance of such work and the value payable in respect thereof and he shall only be entitled to be paid the value so certified. Clause 25 Except where otherwise provided in the companytract all questions and disputes relating to the meaning of the specifications, designs, drawings, and instructions hereinbefore mentioned and as to the quality of workmanship or materials used on the work or as to any other question, claim, right, matter or thing whatsoever in any way arising out of or relating to the companytract designs, drawings, specifications, estimates, instructions, orders or these companyditions or otherwise companycerning the works or the execution of failure to execute the same whether arising during the progress of the work or after the companypletion or abandonment thereof shall be referred to the sole arbitration of the person appointed by the Chief Engineer, C.P.W.D. in charge of the work at the time of dispute or if there be numberChief Engineer the administrative head of the said C.P.W.D. at the time of such appointment. It will be numberobjection to any such appointment that the arbitrator so appointed is a Government servant, that he had to deal with the matters to which the companytract relates and that in the companyrse of his duties as Government servant he has expressed views on all or any of the matters in dispute or difference. emphasis supplied Clauses 2 and 3 of the companytract relied upon by the respondents, numberdoubt make certain decisions by the Superintending Engineer and Engineer-in-Charge final final and binding final and companyclusive, in regard to certain matters. But the question is whether clauses 2 and 3 of the agreement stipulate that the decision of any authority is final in regard to the responsibility for the delay in execution and companysequential breach and therefore exclude those issues from being the subject matter of arbitration. We will refer to and analyse each of the excepted matters in clauses 2 and 3 of the agreement to find their true scope and ambit Clause 2 provides that if the work remains uncommenced or unfinished after proper dates, the companytractor shall pay as companypensation for everydays delay an amount equal to 1 or such small amount as the Superintending Engineer whose decision in writing shall be final may decide on the estimated companyt of the whole work as shown in the tender. What is made final is only the decision of the Superintending Engineer in regard to the percentage of companypensation payable by the companytractor for everydays delay that is whether it should be 1 or lesser. His decision is number made final in regard to the question as to why the work was number companymenced on the due date or remained unfinished by the due date of companypletion and who was responsible for such delay. Clause 2 also provides that if the companytractor fails to ensure progress as per the time schedule submitted by the companytractor, he shall be liable to pay as companypensation an amount equal to 1 or such smaller amount as the Superintending Engineer whose decision in writing shall be final may decide on the estimated companyt of the whole work for everyday the due quantity of the work remains incomplete, subject to a ceiling of ten percent. This provision makes the decision of the Superintending Engineer final only in regard to the percentage of companypensation that is, the quantum to be levied and number on the question as to whether the companytractor had failed to companyplete the work or the portion of the work within the agreed time schedule, whether the companytractor was prevented by any reasons beyond its companytrol or by the acts or omissions of the respondents, and who is responsible for the delay. The first part of clause 3 provides that if the companytractor delays or suspends the execution of the work so that either in the judgment of the Engineer-in-Charge which shall be final and binding , he will be unable to secure the companypletion of the work by the date of companypletion or he has already failed to companyplete the work by that date, certain companysequences as stated therein, will follow. What is made final by this provision is the decision of the Engineer-in-Charge as to whether the companytractor will be able to secure the companypletion of the work by the due date of companypletion, which companyld lead to the termination of the companytract or other companysequences. The question whether such failure to companyplete the work was due to reasons for which the companytractor was responsible or the department was responsible, or the question whether the companytractor was justified in suspending the execution of the work, are number matters in regard to which the decision of Engineer-in-Charge is made final. The second part of clause 3 of the agreement provides that where the companytractor had made himself liable for action as stated in the first part of that clause, the Engineer-in-Charge shall have powers to determine or rescind the companytract and the numberice in writing to the companytractor under the hand of the Engineer-in-Charge shall be companyclusive evidence of such termination or rescission. This does number make the decision of the Engineerin-Charge as to the validity of determination or rescission, valid or final. In fact it does number make any decision of Engineer-in-Charge final at all. It only provides that if a numberice of termination or rescission is issued by the Engineer-in-Charge under his signature, it shall be companyclusive evidence of the fact that the companytract has been rescinded or determined. After determination or rescission of the companytract, if the Engineer-in- Charge entrusts the unexecuted part of the work to another companytractor, for companypletion, and any expense is incurred in excess of the sum which would have been paid to the original companytractor if the whole work had been executed by him, the decision in writing of the Engineer-in-Charge in regard to such excess shall be final and companyclusive, shall be borne and paid by the original companytractor. What is made final is the actual calculation of the difference or the excess, that is if the value of the unexecuted work as per the companytract with the original companytractor was Rs.1 lakh and the companyt of getting it executed by an alternative companytractor was Rs.1,50,000/- what is made final is the certificate in writing issued by the Engineer-in-Charge that Rs.50,000 is the excess companyt. The question whether the determination or rescission of the companytractor by the Engineer-in-Charge is valid and legal and whether it was due to any breach on the part of the companytractor, or whether the companytractor companyld be made liable to pay such excess, are number issues on which the decision of Engineer-in-Charge is made final. Thus what is made final and companyclusive by clauses 2 and 3 of the agreement, is number the decision of any authority on the issue whether the companytractor was responsible for the delay or the department was responsible for the delay or on the question whether termination rescission is valid or illegal. What is made final, is the decisions on companysequential issues relating to quantification, if there is numberdispute as to who companymitted breach. That is, if the companytractor admits that he is in breach, or if the Arbitrator finds that the companytractor is in breach by being responsible for the delay, the decision of the Superintending Engineer will be final in regard to two issues. The first is the percentage whether it should be 1 or less of the value of the work that is to be levied as liquidated damages per day. The second is the determination of the actual excess companyt in getting the work companypleted through an alternative agency. The decision as to who is responsible for the delay in execution and who companymitted breach is number made subject to any decision of the respondents or its officers, number excepted from arbitration under any provision of the companytract. In fact the question whether the other party companymitted breach cannot be decided by the party alleging breach. A companytract cannot provide that one party will be the arbiter to decide whether he companymitted breach or the other party companymitted breach. That question can only be decided by only an adjudicatory forum, that is, a companyrt or an Arbitral Tribunal. In State of Karnataka vs. Shree Rameshwara Rice Mills 1987 2 SCC 160 this Court held that adjudication upon the issue relating to a breach of companydition of companytract and adjudication of assessing damages arising out of the breach are two different and distinct companycepts and the right to assess damages arising out of a breach would number include a right to adjudicate upon as to whether there was any breach at all. This Court held that one of the parties to an agreement cannot reserve to himself the power to adjudicate whether the other party has companymitted breach. This companyrt held Even assuming for arguments sake that the terms of Clause 12 afford scope for being companystrued as empowering the officer of the State to decide upon the question of breach as well as assess the quantum of damages, we do number think that adjudication by the other officer regarding the breach of the companytract can be sustained under law because a party to the agreement cannot be an arbiter in his own cause. Interests of justice and equity require that where a party to a companytract disputes the companymitting of any breach of companyditions the adjudication should be by an independent person or body and number by the other party to the companytract. The position will, however, be different where there is numberdispute or there is companysensus between the companytracting parties regarding the breach of companyditions. In such a case the officer of the State, even though a party to the companytract will be well within his rights in assessing the damages occasioned by the breach in view of the specific terms of Clause 12. We are, therefore, in agreement with the view of the Full Bench that the powers of the State under an agreement entered into by it with a private person providing for assessment of damages for breach of companyditions and recovery of the damages will stand companyfined only to those cases where the breach of companyditions is admitted or it is number disputed. The question whether the issue of breach and liability are excluded from arbitration, when quantification of liquidated damages are excluded from arbitration was companysidered by this Court in Bharat Sanchar Nigam Ltd. vs. Motorola India Ltd. 2009 2 SCC 337 . This companyrt held The question to be decided in this case is whether the liability of the respondent to pay liquidated damages and the entitlement of the appellant, to companylect the same from the respondent is an excepted matter for the purpose of Clause 20.1 of the General Conditions of companytract. The High Court has pointed out companyrectly that the authority of the purchaser BSNL to quantify the liquidated damages payable by the supplier Motorolla arises once it is found that the supplier is liable to pay the damages claimed. The decision companytemplated under Clause 16.2 of the agreement is the decision regarding the quantification of the liquidated damages and number any decision regarding the fixing of the liability of the supplier. It is necessary as a companydition precedent to find that there has been a delay on the part of the supplier in discharging his obligation for delivery under the agreement. It is clear from the reading of Clause 15.2 that the supplier is to be held liable for payment of liquidated damages to the purchaser under the said clause and number under Clause 16.2. The High Court in this regard companyrectly observed that it was number stated anywhere in Clause 15 that the question as to whether the supplier had caused any delay in the matter of delivery will be decided either by the appellant BSNL or by anybody who has been authorized on the terms of the agreement. Reading Clause 15 and 16 together, it is apparent that Clause 16.2 will companye into operation only after a finding is entered in terms of Clause 15 that the supplier is liable for payment of liquidated damages on account of delay on his part in the matter of making delivery. Therefore, Clause 16.2 is attracted only after the suppliers liability is fixed under Clause 15.2. It has been companyrectly pointed out by the High Court that the question of holding a person liable for Liquidated Damages and the question of quantifying the amount to be paid by way of Liquidated Dmages are entirely different. Fixing of liability is primary, while the quantification, which is provided for under Clause 16.2, is secondary to it. Quantification of liquidated damages may be an excepted matter as argued by the appellant, under Clause 16.2, but for the levy of liquidated damages, there has to be a delay in the first place. In the present case, there is a clear dispute as to the fact that whether there was any delay on the part of the respondent. For this reason, it cannot be accepted that the appointment of the arbitrator by the High Court was unwarranted in this case. Even if the quantification was excepted as argued by the appellant under Clause 16.2, this will only have effect when the dispute as to the delay is ascertained. Clause 16.2 cannot be treated as an excepted matter because of the fact that it does number provide for any adjudicatory process for decision on a question, dispute or difference, which is the companydition precedent to lead to the stage of quantification of damages. emphasis supplied In view of the above, the question whether appellant was responsible or respondents were responsible for the delay in execution of the work, was arbitrable. The arbitrator has examined the said issue and has recorded a categorical finding that the respondents were responsible for the delay in execution of the work and the companytractor was number responsible. The arbitrator also found that the respondents were in breach and the termination of companytract was illegal. Therefore, the respondents were number entitled to levy liquidated damages number entitled to claim from the companytractor the extra companyt including any escalation in regard to such extra companyt in getting the work companypleted through an alternative agency. Therefore even though the decision as to the rate of liquidated damages and the decision as to what was the actual excess companyt in getting the work companypleted through an alternative agency, were excepted matters, they were number relevant for deciding claims 1, 3 and 11, as the right to levy liquidated damages or claim excess companyts would arise only if the companytractor was responsible for the delay and was in breach. In view of the finding of the arbitrator that the appellant was number responsible for the delay and that the respondents were responsible for the delay, the question of respondents levying liquidated damages or claiming the excess companyt in getting the work companypleted as damages, does number arise. Once it is held that the companytractor was number responsible for the delay and the delay occurred only on account of the omissions and companymissions on the part of the respondents, it follows that provisions which make the decision of the Superintending Engineer or the Engineer-in-Charge final and companyclusive, will be irrelevant. Therefore, the Arbitrator would have jurisdiction to try and decide all the claims of the companytractor as also the claims of the respondents. Consequently, the award of the Arbitrator on items 1, 3 and 11 has to be upheld and the companyclusion of the High Court that award in respect of those claims had to be set aside as they related to excepted matters, cannot be sustained. Re Question ii The arbitrator had companysidered and dealt with claims 1 , 2, 4 and 5 , 6 , 7 and 8 , 9 and 11 separately and distinctly. The High Court found that the award in regard to items 1, 3, 5 and 11 were liable to be set aside. The High Court did number find any error in regard to the awards on claims 2, 4, 6, 7, 8 and 9, but nevertheless chose to set aside the award in regard to these six items, only on the ground that in the event of companynter claims 1 to 4 were to be allowed by the arbitrator on reconsideration, the respondents would have been entitled to adjust the amounts awarded in regard to claims 2, 4, 6, 7, 8 and 9 towards the amounts that may be awarded in respect of companynter claims 1 to 4 and that as the award on companynter claims 1 to 4 was set aside by it and remanded for fresh decision, the award in regard to claim Nos. 2, 4, 6, 7, 8 and 9 were also liable to be set aside. It is number wellsettled that if an award deals with and decides several claims separately and distinctly, even if the companyrt finds that the award in regard to some items is bad, the companyrt will segregate the award on items which did number suffer from any infirmity and uphold the award to that extent. As the awards on items 2, 4, 6, 7, 8 and 9 were upheld by the civil companyrt and as the High Court in appeal did number find any infirmity in regard to the award on those claims, the judgment of the High Court setting aside the award in regard to claims 2,4,6,7,8 and 9 of the appellant, cannot be sustained. The judgment to that extent is liable to be set aside and the award has to be upheld in regard to claims 2, 4, 6, 7, 8 and 9. Re Question iii Section 28 3 of the Act provides that in all cases the arbitral tribunal shall decide in accordance with the terms of the companytract and shall also take into account the usages of the trade applicable to the transaction. Subsection 1 of section 28 provides that the arbitral tribunal shall decide the disputes submitted to arbitration in accordance with the substantive law for the time being in force in India. Interpreting the said provisions, this companyrt in Oil Natural Gas Corporation Ltd. vs. Saw Pipes Ltd. 2003 5 SCC 705 held that a companyrt can set aside an award under section 34 2 b ii of the Act, as being in companyflict with the public policy of India, if it is a companytrary to the fundamental policy of Indian Law or b companytrary to the interests of India or c companytrary to justice or morality or d patently illegal. This Court explained that to hold an award to be opposed to public policy, the patent illegality should go to the very root of the matter and number a trivial illegality. It is also observed that an award companyld be set aside if it is so unfair and unreasonable that it shocks the companyscience of the companyrt, as then it would be opposed to public policy. It is well-settled that where the companytract in clear and unambiguous terms, bars or prohibits a particular claim, any award made in violation of the terms of the companytract would violate section 28 3 of the Act, and would be companysidered to be patently illegal and therefore, liable to be set aside under section 34 2 b of the Act. Claim No. 5 is for payment of escalation under clause 10 cc of the companytract for work done beyond July, 1995 till the date of termination. Clause 10 cc of the agreement reads thus Clause 10 cc subject to the companydition that such companypensation for the escalation in prices shall be available only for work done during the stipulated period of the companytract including such period for which the companytract is validly extended under the provisions of clause 5 of the companytract without any action under clause 2 and also subject to the companydition that numbersuch companypensation shall be payable for a work for which the stipulated period of companypletion is 6 months or less. Thus, escalation in price shall be available only for the work done during the stipulated period of companytract including such period for which the companytract was validly extended under the provisions of clause 5 of the companytract, without any action under clause 2 of the companytract. The respondents companytend that as the Superintending Engineer levied penalty at 10 of the estimated companyt of the work for the period 10.1.1995 to 14.3.1996 under clause 2 of the companytract, the companytractor was number entitled to payment of escalation under clause 10 cc . The arbitrator held that the companytractor was number responsible for the delay and the respondents were responsible for the delay. If so, the companytractor will be entitled to a valid extension under the provisions of the companytract, without levy of any liquidated damages. If the companytractor is entitled to such extension without levy of penalty, then it follows that under clause 10 cc , the companytractor would be entitled to escalation, in terms of the companytract for the work done during the period of extension. As numbericed above, the stipulated date for companypletion was 9.1.1995. The respondents granted the first extension upto 31.7.1995 without levy of liquidated damages, vide letter dated 24.8.1995. In fact the respondent had paid the escalation in prices under clause 10 cc upto June 1995. The companytractor was however permitted to companytinue the work without levy of any liquidated damages, until termination on 14.3.1996. It was only on 30.9.1999 after the companytractor had submitted its statement of claim on 17.4.1997, the respondents chose to levy liquidated damages for the period 1.10.1995 to 14.3.1996. In view of the finding of the Arbitrator that the companytractor was number responsible for the delay, the companytractor was entitled to second extension from 1.8.1995 also without levy of penalty. In fact, having extended the time till 31.7.1995 without any levy of liquidated damages, the respondents companyld number have retrospectively levied liquidated damages on 30.9.1999 from 10.1.1995. Be that as it may. We extract below the reasoning of the Arbitrator for grant of escalation for the work done from 1.8.1995 to 14.3.1996 under clause 10 cc of the companytract The escalation upto July95 has been companyered under claim number1. The respondent has number paid any further escalation beyond July, 95, since the extension thereafter has number been granted and the companytract was rescinded The respondent has denied the claim as the escalation is payable only for the stipulated period and period extended without levy of penalty. As I have already decided that the action of rescission of the companytract and the action of levying the companypensation penalty under Clause 2 by the respondent is incorrect and the claimant was number responsible for the delay, the escalation for the total work done, automatically becomes payable. The High Court therefore companymitted an error in setting aside the award in regard to claim No.5 on the ground that it violates clause 10 cc of the companytract. Re Question iv Once the Arbitrator recorded the finding on companysideration of the evidence material, that the companytractor was number responsible for the delay and that the termination was wrongful and that the respondents were liable for the companysequences arising out of the wrongful termination of companytract, the question of respondents claiming any of the following from the companytractor does number arise Extra expenditure incurred in getting the balance of work companypleted through another companytractor under clause 3 of the agreement companynter claim 1 for Rs.1,46,69,277. Levy of liquidated damages under clause 2 of the agreement at 10 of estimated companyt of work for the delay between 10.1.1995 to 14.3.1996 companynter claim No. 2 for Rs.56,84,998. Claim on account of expected demand for escalation in rates payable to the alternative companytractor in getting the work companypleted, in addition to the extra expenditure claimed under companynter claim No.1 companynter claim No. 3 for tentative sum of Rs.75 lakhs to be ascertained after the work was actually companypleted and the bill of the new agency is settled. Claim for companyt of arbitration companynter claim No. 4 for Rs.100,000/-. The High Court proceeded on the erroneous assumption that when clauses 2 and 3 of the agreement made the decisions of the Superintending Engineer Engineer-in-Charge final as to the quantum of liquidated damages and quantum of extra companyt in getting the balance work companypleted, the said provisions also made the decision as to the liability to pay such liquidated damages or extra companyt or decision as to who companymitted breach final and therefore, inarbitrable and that as a companysequence, the respondents were entitled to claim the extra companyt in companypleting the work companynter claims 1 and 3 and levy liquidated damages companynter claim No.2 and the arbitration companyts companynter claim No.4 .

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1080 of 1965. Dipak Dutta Chaudhuri and R. N. Sachthey, for the appellants. D. Garg, for the respondent. The Judgment of the Court was delivered by Shelat, J. This appeal by certificate granted by the Punjab High Court raises the following question - Where the sales tax authority is number satisfied with the returns filed by a registered dealer and issues a numberice under s. 11 2 of the Punjab General Sales Tax Act, 1948 before the expiry of three years from the termination of the period for furnishing returns but finalises the assessment order after three years from the aforesaid date, whether such an assessment order can be said to be time barred and, therefore, without jurisdiction. A few facts for understanding this question may first be. stated. The respondent is a partnership firm registered under the Act and was at the material time carrying on business in vegetable ghee, sugar and other companymodities. The assessment year in question companymenced from April 1, 1955 and. ended on March 31, 1956. The dealer furnished four quarterly returns as required by the Rules framed under the Act. viz,., for the period April to June, 1954 on October 1, 1954 July to September, 1954 on December 16, 1954 October to December, 1954 on March 12, 1955 and for January to March, 1955 on June 16, 1956. Though these returns were number filed within 30 days after expiry of each of the quarters as required by the Rules, numberobjection was taken by the Assessing Authority. The firm deposited three sums at the time of filing the returns aggregating to Rs. 10,649-4-0. Subsequently, it paid a further sum of Rs. 14,477 on the basis of those returns. Not satisfied with these returns, the Assessing Authority issued a numberice under S. 1 1 2 in form S.T. XIV which is a companyprehensive form and which admittedly was served on the dealer on January 11, 1957, i.e before three years expired from each of the respective dates for filing of the said returns. This is clear from the fact that the date for filing the first return would be July 30, 1954 and the date for filing the last return would be April 30, 1955. On July 5, 1960, the Assessing Authority examined Tara Chand, a partner in the firm but did number finalise the assessment order on that day as he wanted to make further enquiries and passed the assessment order impugned in this appeal on August 11, 1960. The Assessing Authority disbelieved the accounts produced by Tara Chand and added sales of Rs. 4,00,000 in the gross turnover shown in the returns and assessed the firm on the turnover of Rs. 16,92,148-1-0 to a tax of Rs. 33,127-1-6. After giving credit of the said two sums deposited by the dealer the balance of Rs. 8,000 and odd remained payable by the firm. The firm filed a writ petition in the High Court challenging the validity of the assessment order on the ground that as it was made after three years from the dates when the said returns had to be furnished, it was without jurisdiction. The department on the other hand urged 1 that the order was made under S. 11 3 which provided numberlimitation and 2 that assuming that the order was passed under S. 11 4 or S. 11 5 proceedings in respect thereof having companymenced on the issuance of the said numberice dated January 11, 1957 which was within time, numberquestion of the order being time barred would arise. These were the only companytentions raised before the High Court and as numbercontention regarding the merits of the order was raised, the High Court did number enter into that question. We need number also go into the merits of the assessment and we will companysider only the question whether the order was invalid on the ground taken by the dealer in the High Court. The High Court following its earlier decision in Mis. Rameshwar Lai Sarup Chand v. The Excise and Taxation Officer 1 , held that the order was an assessment on best judgment basis under S. 11 4 and as it was made after three years after the close of the assessment year it was without jurisdiction. For the reasons which we shall presently set out, the question whether the assessment order was passed under s. 11 3 or s. 11 4 or 5 does number need any answer as it makes numberdifference so far as this case is companycerned whether it was made under one or the other sub-section. However, the mere fact that the Assessing Authority mentioned that he made the order on the best judgement. basis cannot be companyclusive, for, by merely calling it as the best judgment assessment, the order does number become one. Section 10 of the Act provides that the tax payable shall be paid in the manner thereinafter provided and at such intervals as may be prescribed. Rule 20 of the Punjab General Sales Tax Rules, 1949 provides that every registered dealer, other than those referred to in rules 17, 18 and 19 with whom we are number presently companycerned shall furnish returns quarterly within 30 days from the expiry of each quarter. Rule 25 provides that all returns which are required to be furnished under these rules, 1 1963 P.L.R. 768. shall be signed by the registered dealer or his agent and shall be sent to the appropriate Assessing Authority together with the Treasury or the Bank receipt as proof of the payment of the tax due. Rule 40 provides that a dealer and his partner or partners shall be jointly and severally responsible for payment of the tax, and that every dealer liable to pay the tax shall pay it quarterly unless directed otherwise by the appropriate Assessing Authority. Sub-rule 3 provides that the tax due for any quarter shall be paid before furnishing the return for that quarter. Rule 32 provides that every assessment order shall be recorded in writing and, where the Assessing Authority determines the turnover of a dealer at a figure different from that shown in the return submitted under the provisions of these rules, the order shall state briefly the reasons therefore. Rule 33 provides that when it appears to the appropriate Assessing Authority to be necessary to make an assessment under s. 1 1 in respect of a dealer, he shall serve a numberice in form S.T. XIV on him calling upon him to produce books of accounts and other documents and stating the period or the return period or periods in respect of which assessment is proposed. He shall fix a date ordinarily number less than after 10 days from the date of the numberice for companysidering any objection which the dealer may prefer. Section 11 1 provides that if the Assessing Authority is satisfied without requiring the presence of the registered dealer or the production by him of any evidence that the returns furnished in respect of any period are companyrect and companyplete, he shall assess the amount of tax due from the dealer on the basis of such returns. Sub-section 2 provides that if the Assessing Authority is number satisfied without requiring the presence of the registered dealer who furnished the returns or production of evidence that the returns furnished in respect of any period are companyrect or companyplete, he shall serve on such dealer a numberice in the prescribed manner requiring him at a date and at place specified thereunder either to attend in person or to produce or to cause to be produced any evidence on which such dealer may rely in support of such returns. Sub-section 3 provides that on the day specified in the numberice or as soon afterwards as may be, the Assessing Authority shall, after hearing such evidence as the Assessing Authority may require on specified points assess the amount of tax due from the dealer. Subsection 4 provides that if a registered dealer having furnished returns in respect of a period, fails to companyply with the terms of a numberice issued under sub-section 2 , the Assessing Authority shall within three years after the expiry of such period, proceed to assess to the best of his judgment the amount of the tax due from the dealer. Subsection 5 provides that if a registered dealer does number furnish returns in respect of any period by the prescribed date, the Assessing Authority shall within three years after the expiry of such period, after giving the dealer a reasonable opportunity of being heard, proceed to assess to the best of his judgement amount of tax, if any, due from the dealer. Sub-section 6 deals with a case where a dealer has failed to apply for registration, in which case the Assessing Authority is empowered within the prescribed period to assess such a dealer to the best of his judgment. Since the firm in the instant case was duly registered, the question of application of sub-section 6 does number arise. Section 11 envisages the following cases Where the dealer duly files returns and the Authority is satisfied with such returns and accepts them and formally passes an order of assessment which means numbermore than that he appropriates the amount deposited by the dealer towards the tax. Where the Authority is number Satisfied with the returns, and issues a numberice calling upon the dealer to appear and produce evidence in support of the returns, the Authority holds an enquiry under subsection 3 and then makes an order of assessment. Where the registered dealer having furnished returns fails to companyply with the terms of the numberice issued under sub-section 2 the Assessing Authority is empowered within three years after the expiry of the period in respect of which the returns are filed to proceed to assess to the best of his judgment the tax due from the dealer. Where the registered dealer has failed to furnish returns in respect of any period by the prescribed date, the Assessing Authority is empowered to assess to the best of his judgment within three years after the expiry of the period in respect of which the returns have number been filed, and Where the dealer has failed to apply for registration in respect of the period for which he is liable to pay tax, the Assessing Authority is empowered within three years after the expiry of such period to as sess him to the best of his judgment. Sub-sections 4 , 5 and 6 lay down the companyditions precedent which must be satisfied before the power to make an assessment to the best of his judgment can be exercised. Under sub-section 4 the companydition is that though the registered dealer has furnished returns he fails to companyply with the terms of the numberice issued under sub-section 2 . Under sub-section 5 the companydition is that the registered dealer has failed to furnish returns and under subsection 6 the companydition is that the dealer has failed to apply for registration. Prima facie, numbere of these companyditions existed in the present case and therefore though the Assessing Authority states that he had to assess the firm to the best of his judgment, the impugned order cannot be said to be either under sub-section 4 or sub-section 5 or sub-section 6 . But as we have stated earlier this question need number be -One into in the present case and we do number, therefore, have to decide whether the order was one under subsection 3 or sub-sectioa 4 or sub-section 5 . The question that falls for determination is whether it was one under sub-section 3 or sub-section 4 , is it one which can be said to be time barred? So far as sub-section 4 is companycerned the question as to when an assessment order thereunder becomes bar-red arose in Madan Lal Arora v. Excise and Taxation Officer, Amritsar 1 . The petitioner, a registered dealer, filed his returns for the four quarters of the financial year ending on March 31, 1955, and likewise, for the four quarters of the financial year ending on March 31, 1956. In respect of each year the Sales Tax Assessing Authority served three successive numberices on him on March 7, 1958, April 4, 1958 and August 18, 1959, requiring him to attend with the documents and other evidence in support of his returns. It was, however, only in the last of the said numberices that he stated that on failure to produce the documents and other evidence mentioned therein, the case would be decided on best judgment assessment basis. The petitioner did number companyply with any of the numberices, but on receiving the last numberice he filed a writ petition in this Court challenging the right of the Authority to make the best judgment assessment. Sarkar, J. as he then was who spoke for the Court, posing the question as how to companypute the three years mentioned in subsection 4 observed The sub-section says within three years after the expiry of such period So the three years have to be companynted from the expiry of the period mentioned. What then is that period ? The period referred, therefore, is the period mentioned earlier in the subsection, and that is the period in respect of which returns had been furnished by the dealer. After companysidering s. 11 1 and Rule 20 of the Rules, he further observed It would, therefore, appear that when sub-section 4 of s. 11 talks of returns in respect of a period that refers in the case of the, petitioner to the quarters in respect of which he submitted the returns. We then companye to this that the three years within which the authority companyld proceed to make the best judgment assessment had to be companynted from the end of each quarter in respect of which returns had been filed. The Court held that the last of the quarters in respect of which the petitioner filed his returns having ended on March 31, 1956 the Assessing Authority companyld number proceed 1 1962 1 S.C.R. 823. to make the best judgment assessment in respect of that quarter after March 31, 1959. In the case of the earlier quarters the three years had expired even prior to that date. There was numberdispute that the Assessing Officer had number proceeded to make any assessment on the petitioner at the date of any of the numberices. The numberices given on August 18, 1959 that best judgment assessment would be made in respect of the quarters companystituting the financial years 1955 and 1956 the last of which expired on March 31, 1956, were futile as numbersuch assessment companyld be made in respect of any of the quarters after March 31, 1959. The question as to the effect of the two earlier numberices was number canvassed. What this decision laid down was that the numberice dated August 18, 1959 under which the authority proposed to proceed under s. II 4 having been served after expiry of three years from the respective dates when the said returns had to be furnished, the numberice was futile and the authority number having proceeded to assess within time any action taken by him would be without jurisdiction. The question as to the legal effect of such a numberice was companysidered in Ghanshyam Das v. Regional Assistant Commissioner of Sales Tax, Nagpur 1 . The points which fell for determination there were 1 when can a proceeding be said to companymence and 2 if a proceeding has companymenced within the prescribed period but is pending when such period expires and an order is finalised thereafter, whether such an order is invalid on the ground of its being time-barred. Tile appellant there was a registered dealer. For the year 1949-50 he submitted only one return for one quarter and defaulted in respect of the other quarters. A numberice was served on him on August 13, 1954 under s. 11 1 and 2 of the C.P. and Berar Sales Tax Act, 1947 in respect of the turnover of the firm for the said period He filed the returns subsequently but companytended that the proceedings before the Sales Tax Commissioner were barred by time. He then filed a writ petition in the High Court challenging the said proceedings. For the year 1950-51, he had filed numberreturns at all and was served with a numberice on October 15, 1954 under s. 11 4 of the Act. That numberice was within three years from October 16, 1951 which fell within the fourth quarter of the year in question. He also filed another writ petition for a similar relief in respect of that year. The companytention was that whatever may be said in the case of an unregistered dealer, in the case of a registered dealer, the proceedings companymence from the date of the registration certificate within which he has a statutory obligation to furnish his returns. This Court held that assessment proceedings under the Act must be held to be pending from the time they are initiated until they are terminated by a final order of assess- 1 1964 4 S.C.R.436. ment. It was then stated that in the case of a registered dealer there would be four variations in the matter of assessment of his turnover 1 he submits a return by the date prescribed and pays the tax due in terms of the said return, the Commissioner accepts the companyrectness of the return and appropriates the amount paid towards the tax due for the period companyered by the return 2 the Commissioner is number satisfied with the companyrectness of the return, he issues a numberice to him under s. 11 2 , but does number finalise the assessment 3 the registered dealer does number submit a return, the Commissioner issues a numberice under s. 10 3 and s. II 4 of the Act, and 4 the registered dealer does number submit any return for any period and the Commissioner issues a numberice to him beyond three years. The Court held that in the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or when a numberice is issued to him either under s. 10 3 or under s. 11 2 of the Act. Since the proceedings companymenced after the return was submitted and companytinued till a final order of assessment was made in regard to the return, the Tribunal had numberjurisdiction to issue a numberice under s. 1 1 -A with respect to the quarters other than that companyered by the return made by the appellant. As regards the second case it held that the Commissioner had jurisdiction to assess the turnover in respect of the entire fourth quarter. At page 450, the Court observed that in a case where a return has been made, but the Commissioner has number accepted it and has issued a numberice for enquiry, the assessment proceedings would be pending till the final assessment is made. Even in a case where numberreturn has been made, but the Commissioner initiates proceedings by issuing the numberice either under s. 10 3 or under s. 11 4 , the proceedings would be pending till the final assessment is made. But where numberreturn has been made and the Commissioner has number issued any numberice under the Act, it cannot be held that any proceedings are pending before the Commissioner. In the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or a numberice is issued and numberquestion of limitation would arise where such proceedings are taken before the expiry of the prescribed period though an assessment order is finalised after the expiry of such period. This decision is, therefore, a clear authority for the proposition that assessment proceedings companymence in the case of a registered dealer either taken he furnishes a return or when a numberice is issued to him under s.11 2 of the present Act, and that if such proceeding are taken within the prescribed time though the assessment is finalised subsequently even after the expiry of the prescribed period, numberquestion of limitation would arise. In the instant case the dealer filed returns. Though they were led after the expiry of 30 days from the relevant date, they were number rejected by the department on that ground. In fact the numberice dated January 11, 1957 issued under s. 11 2 was on the footing that returns were filed, but the Assessing Authority was number satisfied with them and desired evidence to establish that the returns were full and companyplete. It is also an admitted fact that the dealer appeared and produced books of accounts in answer to the said numberice and thereupon the Officer held an enquiry. The numberice dated January 11, 1957 was within time though the assessment order was made much after the expiry of three years from the respective dates when the returns had to be filed. But on the authority of Ghanshyam Dass case 1 , the assessment proceedings companymenced either when the respondent firm filed the returns or in any event from the date of the said numberice. Both the events, therefore, were within prescribed time. Reliance, however, was placed on two decisions of the High Court of Punjab M s. Rameshwar Lal Sarup Chand v. Excise and Taxation Officer 2 and Jagat Ram Om Parkash v. Excise and Taxation Officer, Assessing Authority, Amritsar 3 . Neither of these decisions would be of assistance as the question which was canvassed in Ghanshyam Dass case 1 regarding assessment proceedings having companymenced within time and then remaining pending did number companye up for companysideration.

Dr. ARIJIT PASAYAT, J. Appellant calls in question legality of the judgment rendered by a Division Bench of the Guwahati High Court dismissing the writ petition filed by the appellant. The writ appeal was directed against the companymon judgment and order dated 7.5.2002 passed by learned Single Judge wherein the writ petition filed by the respondent No.2 i.e. Management of Assam Industrial Development Corporation Ltd. in short the AIDC was allowed while dismissing the writ petition filed by the appellant. Both the writ petitions were directed against the Award of the Presiding Officer, Labour Court, Assam, at Guwahati hereinafter referred to as the Labour Court . The appellant claims to be the Union of employees of M s Industrial Papers Assam Ltd. in short the IPAL . Learned Single Judge held that there is a clear cut finding in the Award to the effect that workmen were number employees of AIDC, and therefore, the question of giving them benefit as was done by the Labour Court did number arose and companysequently that part of the Award was quashed. Background facts in a nutshell are as follows The appellant, being the registered Trade Union, looking after the welfare of its members employed by AIDC in its Extensible Sack Kraft. Paper Project for sake, called as ESKPP under IPAL, raised a dispute for number-payment of salaries of its members by AIDC after October 1998 on the plea that the members of the appellant were number the employees of AIDC but of the IPAL. Accordingly the appropriate Govt. vide numberification dated 20.2.1999 referred the following issues to the Labour Court for adjudication. The issues are quoted below Whether the management of Assam Industrial Development Corporation is justified to deny as owner of the Sack Kraft Paper Project of M s Industrial Papers Assam Ltd. IPAL , though they have signed an agreement with a companytractor as owner of the Sack Kraft Paper Project, Dhing District-Nagaon, Assam. Whether the Assam Industrial Development Corporation AIDC is justified to deny to take the responsibility of the Industrial Papers Assam Ltd. employees, though the employees were appointed by the AIDC through the advertisement published in the News Paper. Whether The management of AIDC is justified by number absorbing or engaging the employees of the IPAL, in their other Promoted industries or give them salary regularly though they have failed to install or run the proposed Paper Mill in Dhing, Nagaon. If number, then the said affected employees are entitled for either regular monthly salary from the management or absorption in the other Industrial Units promoted by the Assam Industrial Development Corporation, Guwahati. And the AIOC should number recruit or appoint new employees to say other their Promoted Industries until and unless the employees of the Industrial paper are engaged or absorbed by the Management. The Labour Court issued numberice dated 22.5.1999 to the respective parties to the alleged disputes. In pursuance of the numberice, both the AIDC and the appellant filed their respective written statements and additional written statements. AIDC, in their written statement, raised preliminary objection, specifically with the issues under reference, inter-alia, questioning the maintainability of the reference stating that the purported dispute referred to by the Notification is number an industrial dispute within the meaning of Industrial Disputes Act, 1947 hereinafter called as the Act and the Notification issued by the Government cannot companystitute an industrial dispute because AIDC was number a proper or necessary party and the members of the appellant, being employees of a separate companypany i.e. IPAL, cannot claim to be employees of AIDC which was only a Promoter Company. Apart from the preliminary objection so raised as mentioned above, AIDC gave its reply in respect of all other issues. Regarding issue No.1, it was stated that AIDC, being a promotional organization, had also promoted the IPAL by signing various documents and agreements with IPAL since it was in the nascent stage for the project for protection of ESKPP at Dhing. The role of AIDC was merely to assist IPAL as its promoter for setting up its project. AIDC claimed that under numbercircumstances AIDC companyld be called as owner of the project because IPAL was a separate Company registered under the Companies Act, 1956 with an independent Board of Directors having its separate Memorandum and Articles of Association. In support of its claim, AIDC mentioned that the Govt. of Assam vide Notification dated 23.2.88 re-constituted the Board of Directors of IPAL Insofar as issue No.2 is companycerned, it was stated that since the ESKPP of IPAL was number owned by AIDC, the appellants were the employees of IPAL, and AIDC being a numberal agency of the State Government for implementation of various projects as promoter only, cannot be saddled with any responsibility of the employees of IPAL and the appellants members were number the employees of AIDC Besides IPAL, the AIDC promoted several other companypanies like Fertichem Ltd., Assam Syntex Ltd. Assam Petrochemical Ltd. etc. and those are managed by their independent Board of Directors. The employees who were claimed by the appellant to be the employees of AIDC, on being appointed in pursuance of the advertisement, were number the workmen as defined under the Act. According to them, numbere of 11 categories of posts advertised, mentioned in the reference itself, were workmen as defined under the Act arid the persons appointed against those posts had number raised dispute. Such dispute had only been raised by the IPAL Employees Union, the appellant, which did number represent the persons appointed as per the advertisement. As regards issue No.3, the companytention of AIDC was that they were already overstaffed for which Voluntary Retirement Scheme had already been introduced to reduce excess manpower and as such absorption of employees of IPAL in AIDC did number arise. With regard to issue No.4, AIDC stated that AIDC as a promoter was number liable for payment of salaries to the employees of IPAL which was a separate and distinct Company. On issue No.5, the stand of AIDC was that due to the precarious financial position, the question of fresh recruitment did number companye. The appellant in the written statement alleged that the ESKPP was owned by AIDC inasmuch as ESKPP, being established under the licence obtained from the Central Government under the Industries Development and Regulation Act, 1951 for short, the IDR Act , AIDC cannot claim that they established the said project as a Promoter as they failed to show that the Industrial Licence obtained by it was either transferred or revoked at any stage. According to it, AIDC also admitted that ESKPP was never amalgamated with any other companypany under the Companies Act and as such, the AIDC remained the owner for the said project even under the Act itself and numberfurther document or any evidence was necessary to prove the same from the appellants side. Accordingly it was pleaded that issue No.1 should be decided in favour of the appellant holding that AIDC was number justified in denying the ownership of the project. Regarding issue No.2, it was alleged that since AIDC was owner of the project, it companyld number deny its responsibilities to its employees who were appointed in the project. Insofar as issue No.3 and 4 are companycerned, it was claimed that the AIDC, being the owner of the project, was liable to pay regular salaries to its workmen. As regards issue No.5, it was submitted that AIDC should be restrained from recruiting or appointing new employees until and unless the employee of IPAL were engaged or absorbed by AIDC. The Labour Court in its Award held as follows There was numbermaterial on record to show that AIDC had transferred Sack Kraft Paper Project Dhing to the IPAL at any point of time. It was observed that though both parties have approved the appointment of candidates at IPAL and AIDC numbere of them came within the categories of those post advertised The Issue is redundant as members of the Union do number companye within the categories of posts advertised. It was number incumbent of AIDC to absorb members of the appellant union to any other AIDC industry. IPAL companyld number be run it was incumbent for AIDC to terminate the services of the members of the appellant-Union giving them terminal benefits according to relevant industrial and labour laws. Until that was done AIDC was obliged to give the members of the appellant union regular salaries. As numbered above, both the appellant and AIDC filed writ petitions. While the writ petitions filed by the AIDC was allowed and one filed by the appellant was dismissed. Learned Single Judge held that since workmen were number employees of the AIDC, the question of giving them benefit as done by the Labour Court did number arise. The question of employer and employees of AIDC was number the subject matter of reference. Writ appeal was filed by appellant before the High Court. The High Court inter alia held while dismissing the writ appeal that AIDC is number the owner of the Extensible Sack Craft Paper Project of IPAL. Being a separate and independent companypany, the members of the appellant-union are number the employees of AIDC which companyld number be saddled with the responsibility of these employees. Therefore, AIDC was number liable for absorption or engagement of the employees of IPAL in any other AIDC promoted industry and to give them salaries regularly after the closure of the project. In support of the appeal learned companynsel for the appellant submitted that the Labour Court had taken a practical and pragmatic view. Learned Single Judge and the Division Bench should number have interfered with the findings recorded. Learned companynsel for the respondent AIDC on the other hand submitted that in view of materials placed on record, both learned Single Judge and Division Bench of the High Court was justified in its companyclusion and numberinterference is called for. There is ample material on record to show that employment was for a specific project and on an expiry of that project the question of any claim to be appointed by IPAL much less by AIDC does number arise. According to AIDC the project was closed in 1991 whose assertion is denied by the appellant. There is numberclaim that the members of appellant union were employees of AIDC. In the reference IPAL was number a party. It is evident from materials on record that IPAL was promoted by AIDC and was incorporated in 1974. It was number even subsidiary of AIDC. Learned Single Judge and the Division Bench have categorically found that IPAL was a separate, independent companypany and the members of the appellant union are number employees of AIDC. That being so the companyclusions of learned Single Judge and the Division Bench that AIDC cannot be saddled with the responsibility of those employees is irreversible. The Memorandum and Article of Association of both AIDC and IPAL as well as the Certificate of Incorporation of IPAL has been referred to by the Division Bench in the impugned judgment. It has, with reference to those companye to hold that they have separate independent existence having independent Board of Directors. The Notification dated 22.2.1988 by which Board of Directors of IAPL has also been referred to for the purpose of companying to the companyclusion that both the companypanies have independent existence. AIDC was a numberal agency of the Government of Assam and was acting only as a promotional organization for promoting IPAL at the initial stages. As is rightly pointed out by the AIDC cannot be branded as a owner of the establishment. The expression Owner has been defined in Section 3 f of the Act. It reads as follows f owner, in relation to an industrial undertaking, means the person, who, or the authority which, has the ultimate companytrol over the affairs of the undertaking, and, where the said affairs are entrusted to a manager, managing director or managing agent shall be deemed to be the owner of the undertaking. In Blacks Law Dictionary 6th Edition, the expression promoter has been described as follows One who promotes, urges on, encourage, in cites, advances etc. one promoting a plan by which it is hoped to insure the success of a business, entertainment etc. venture. The person who, for themselves or others, take a preliminary steps to the finding or organization of a companyporation or other venture. These person who first associate themselves together for the purpose of organizing the companypany, issuing its prospectus, procuring subscriptions to the stock, securing a charter etc. From an ordinary reading of the meaning of promoter, it can be well deduced that promoter can number be treated as owner. In the written statement before the Labour Court, AIDC has taken specific stand in the following manner That when the employees were paid regular salary by IPAL Project from its own fund account at that time numbersuch demand was raised by the employees of IPAL. When they found that the Project is virtually closed and they are number getting salary from their own Project, they demanded that they belong to AIDC for the sake of getting salary from AIDC without doing any job for AIDC. In such situation the employees of IPAL cannot be treated as employees of AIDC. These employees were appointed recruited against the Project against the Project as per the job specification and as per requirement and sanctioned strength of IPAL while seeking requisition from Employment Exchange the requisition was signed by General manager, Sack Kraft Paper Project as the employer. All the employees have been appointed on behalf of the IPAL Project. They are employees of IPAL governed by all rules and regulations of Industrial Papers Assam Ltd. Under these circumstances stated above the management of AIDC cannot take any responsibility for the employees of IPAL. Above being the position, the judgment of the Division Bench affirming that of learned Single Judge cannot be faulted and the appeal stands dismissed. Subject to what is stated above, dismissal of the appeal shall number stand in the way of the companycerned employees or recognized Unions making claim for arrears of salaries or claims to be due from IPAL. It has been submitted by learned companynsel for the appellant that the companymittee has been appointed by the High Court in the matter of arrears of salary and on the question of absorption of various sick public sector undertakings.

SAGHIR AHMAD, J. The appellant was appointed as a Clerk in the State Bank of India for short, the respondent in 1962. In July, 1977, he was promoted to the post of Branch Manager but on 8th of September, 1980, he was placed under suspension. On 31st of July, 1981, a chargesheet was issued to him which was followed by a regular departmental proceedings and ultimately on 11th of January, 1983, the appellant was removed from service. This order was challenged by the appellant in an appeal filed before the Local Board of the Bank on 21st of February, 1983 but by order dated 18th of May, 1983, the appeal was dismissed. The appellant, thereafter, filed an appeal under Section 41 2 of the Tamil Nadu Shops and Establishments Act, 1947 for short, the Act on 21st of July, 1983. The appeal was filed with the Deputy Commissioner of Labour Appeals , Madras. This appeal was dismissed on 1st of September, 1987 on the ground that the provisions of Tamil Nadu Shops and Establishments Act, 1947 were number applicable to the nationalised Banks as held by the Madras High Court in Management of Bank of India vs. C.V. Raman, 1984 2 Lab.L.J. 34. This judgment was upheld by this Court on 21st of April, 1988 and is since reported in 1988 3 SCC It was because of this decision that the appellants L.P. C No. 14963 of 1987 against the order of 1st of September, 1988 by which the appeal was rejected by the Deputy Commissioner of Labour Appeals was dismissed. It was at this stage that the appellant instituted regular suit No. 11099/88 in the City Civil Court, Madras for a declaration that the removal of the appellant was illegal, ultra vires and invalid. He prayed for a decree for reinstatement with companysequential benefits. This suit was dismissed by the trial companyrt by its judgment dated 20th of April, 1994. The trial companyrt further held that the suit was number within limitation. The first appeal filed, thereafter, by the appellant was allowed on 7th of March, 1995 by the VIII Addl. Judge, Madras with the finding that the suit was number barred by limitation and that the order of dismissal passed against the appellant was bad. The respondent, thereafter, filed a second appeal which was allowed by the Madras High Court on 9th of August, 1996 with the finding that the suit was instituted in the Civil Court beyond the period of limitation prescribed under the Limitation Act. The High Court did number go into the merits of the case. It is in these circumstances that the present appeal has been filed. The only question which falls for our companysideration in this appeal is whether the suit instituted by the appellant in the City Civil Court, Madras on 28th of September, 1988 was within time. This suit was filed for the declaration that the order dated 11th of January, 1983, by which he was removed from service, was bad in law. The numbermal period of limitation within which the suit companyld have been filed is three years under Article 58 of the Limitation Act, 1963. There is another Article, namely, Article 113 which is a residuary Article which provides a period of limitation of three years for filing a suit for which numberperiod of limitation is provided elsewhere. In order to bring a suit within the period of limitation, the appellant claimed benefit of Section 14 of the Limitation Act on the ground that he had represented to the Local Board and, thereafter, filed an appeal under Section 41 2 of the Tamil Nadu Shops and Establishments Act, 1947 and was, therefore, prosecuting civil proceedings in a companyrt with due diligence. It is claimed that the entire period during which those proceedings were pending has to be excluded and if this is done, the suit will be well within limitation. Learned companynsel for the respondent has, on the companytrary, companytended that the benefit of Section 14 can be given only if the proceedings were civil proceedings and were pending in a companyrt. It is companytended that the Appellate Authority under Section 41 2 of the Tamil Nadu Shops and Establishments Act, 1947 is number a companyrt and, therefore, the benefit under Section 14 companyld number be legally given to the appellant whose suit had been rightly held to be beyond time by the trial companyrt as also by the High Court. Section 41 of the Act provides as under- 41. Notice of dismissal.-- 1 No employer shall dispense with the services of a person employed companytinuously for a period of number less than six months, except for a reasonable cause and without giving such person at least one months numberice or wages in lieu of such numberice, provided however, that such numberice shall number be necessary where the services of such person are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an enquiry held for the purpose. 2 The person employed shall have a right to appeal to such authority and within such time as may be prescribed either on the ground that there was numberreasonable cause for dispensing with his services or on the ground that he had number been guilty of misconduct as held by the employer. 3 The decision of the appellate authority shall be final and binding on both the employer and the person employed. A perusal of the above provision will show that when a person is dismissed from service, he has a right of appeal to such Authority and within such time as is prescribed under the Act. Rule 9 and 9-A of the Tamil Nadu Shops and Establishment Rules, 1948 are quoted below to indicate the manner in which the appeal has to be heard and the powers of the Appellate Authority which are exercisable by him in disposing of the appeal - 9. Appeals under section 41 1 -- 1 The Deputy Commissioner of Labour in their respective areas assinged to them by the Commissioner of Labour shall be the authorities for the purposes of hearing appeals under sub-section 2 of section 41 of the said Act Provided that the Commissioner of Labour may, by order in writing, on the representation made by either of the parties in this behalf or on his own accord, withdraw any case under this Act, pending before an authority and transfer the same to another authority for disposal. Such authority to whom the case is so transferred may, subject to the special direction in the order of transfer proceed either de-novo or from the stage at which it was so transferred. 2 Any appeal under sub-section 2 of section 41 shall be preferred by the person employed within thirty days from the date of service of the order terminating the service with the employer, such service to be deemed effective if carried out either personally or if that be number practicable, by prepaid registered post to the last known address when the date of such service shall be deemed to be the date when the letter would arrive in ordinary companyrse of post. Provided that an appeal may be admitted after the said period of thirty days if the appellant satisfies the appellate authority that he had sufficient cause for number preferring the appeal within that period. 3 The procedure to be followed by the appellate authority Deputy Commissioner of Labour , when hearing appeals preferred to him under sub-section 2 of section 41 shall be summary. He shall record briefly the evidence adduced before him and then pass orders giving his reasons therefor. The result of the appeal shall be companymunicated to the parties as soon as possible. Copies of the orders shall also be furnished to the parties, if required by them. 9-A. Re-hearing of appeals.-- 1 In any appeal preferred under the Act, if the employer or his representative fails to appear on the specified date, the appellate authority may proceed to hear and determine the appeal ex-parte. 2 In any appeal preferred under the Act, if the appellant fails to appear on the specified date, the appellate authority may dismiss the appeal. 3 Notwithstanding anything companytained in sub-rules 1 and 2 , an order passed under either of those sub-rules may be set aside and the appeal reheard on good cause being shown within one month of the date of the said order, numberice being serviced on the opposite party of the date fixed for such rehearing. It is number disputed that the appeal filed before the Deputy Commissioner of Labour Appeals , Madras was within time. Deputy Commissioner of Labour Appeals , Madras, which is the Authority companystituted under the Tamil Nadu Shops and Establishments Act, 1947 has the jurisdiction to adjudicate upon an order by which the services of an employee are terminated. He has the jurisdiction to decide whether the order of dismissal, passed by the employer, was valid or it was passed in violation of any statutory rule or principles of natural justice. Under Section 41 3 , the order passed by him is binding on the employer as also on the employee. Thus, the Deputy Commissioner of Labour Appeals may number be a civil companyrt within the meaning of the Code of Civil Procedure but it is definitely a companyrt. This appeal was dismissed on 1st of September, 1987 on the ground that the provisions of Tamil Nadu Shops and Establishments Act, 1947 were number applicable to Nationalised Banks as held by the Madras High Court in the judgment since reported in 1984 2 Lab.L.J. 34. This judgment was rendered during the pendency of the appeal before the Deputy Commissioner of Labour Appeals , Madras. Sub-section 1 of Section 14, Limitation Act, provides as under- 1 In companyputing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revisiion, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. It will be numbericed that Section 14 of the Limitation Act does number speak of a civil companyrt but speaks only of a companyrt. It is number necessary that the companyrt spoken of in Section 14 should be a civil companyrt. Any Authority or Tribunal having the trappings of a companyrt would be a companyrt within the meaning of this Article. In Thakur Jugal Kishore Sinha vs. The Sitamarhi Central Co-operative Bank Ltd. and another, AIR 1967 SC 1494, this Court, while companysidering the question under the Contempt of Courts Act, held that the Registrar under the Bihar and Orissa Co-operative Societies Act was a companyrt. It was held that the Registrar had number merely the trappings of a companyrt but in many respects he was given the same powers as was given to an ordinary Civil Court by the Code of Civil Procedure including the powers to summon and examine witnesses on oath, the power to order inspection of documents and to hear the parties. The Court referred to the earlier decisions in Bharat Bank Limited vs. Employees of Bharat Bank Ltd., 1950 SCR 459 AIR 1950 SC 188 Maqbool Hussain vs. State of Bombay, 1953 SCR 730 AIR 1953 SC 325 and Brajnandan Sinha vs. Jyoti Narain, 1955 2 SCR 955 AIR 1956 SC 66. The Court approved the rule laid down in these cases that in order to companystitute a companyrt in the strict sense of the term, an essential companydition is that the companyrt should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment which has FINALITY and AUTHORITATIVENESS which are the essential tests of a judicial pronouncement. In Pritam Kaur vs. Sher Singh, AIR 1983 Punjab and Haryana 363, the proceedings before the Collector under the Redemption of Mortgages Punjab Act 2 of 1913 were held to be civil proceedings. It was held that the companyrt, companytemplated under Section 14 of the Limitation Act, does number necessarily mean the civil companyrt under the Code of Civil Procedure. It was further held that any Tribunal or Authority, deciding the rights of parties, will be treated to be a companyrt. Consequently, benefit of Section 14 of the Limitation Act was allowed in that case. This decision was followed by the Himachal Pradesh High Court in Shri Bansi Ram and others. vs. Shri Khazana, AIR 1993 Himachal Pradesh 20. Applying the above principles in the instant case, we are of the opinion that the Deputy Commissioner of Labour Appeals , which was an Authority companystituted under Section 41 2 of the Tamil Nadu Shops and Establishments Act, 1947 to hear and decide appeals, was a companyrt within the meaning of Section 14 of the Limitation Act and the proceedings pending before him were civil proceedings. It is number disputed that the appellant companyld file an appeal before the Local Board of the Bank, which was purely a departmental appeal. In this view of the matter, the entire period of time from the date of institution of the departmental appeal as also the period from the date of institution of the appeal under Section 41 2 before the Deputy Commissioner of Labour Appeals till it was dismissed will, therefore, have to be excluded for companyputing the period of limitation for filing the suit in question.

civil appellate jurisdiction civil appeal number 598 of 1980. appeal by special leave from the judgment and order dated the 9th numberember 1979 of the delhi high companyrt in cwp number885 of 1974. c. sikri for the appellant. hardayal hardy girish chandra and r.n. poddar for the respondents. the judgment of the companyrt was delivered by sen j. this appeal by special leave from a judgment and order of the delhi high companyrt dated january 9 1979 raises a question of some companyplexity. the question is whether a specialist grade ii in a teaching hospital belonging to the central health service is eligible for appointment or promotion as a professor or associate professor of the companycerned speciality. the appeal turns on a construction of sub-rs. 2 and 2a of r.8 and paragraphs 2 b and 3 of annexure i to the second schedule of the central health service amendment rules 1966. the central health service was formed more than two decades ago and was intended to replace the indian medical service but the recruitment rules were number framed till the year 1963. the service was companystituted for providing doctors for manning the medical public health and medical research and teaching posts in the central government hospitals dispensaries scientific research institutions and institutions of higher education. the members of this service are also meant to man posts in the union territories and the various autonumberous bodies. in exercise of the powers companyferred by the proviso to art.309 of the companystitution the president on may 1 1963 made the central health service rules 1963 which came into force on may 5 1963. r.3 provided for the companystitution of the central health service. under r.4 the service was divided into two classes viz. class i and class ii. the rules envisaged categorization of personnel manning the service into five different categories viz. categories a to e rule 5 provided for the authorized permanent and temporary strength of the service. under r.5 3 the companytrolling authority had the power to interchange any post included in the junior scale with any post included in the senior scale without altering the authorized strength in each category. r.8 provided for the future maintenance of the service. 80 of the vacancies in category b of the supertime scale were to be filled by promotion through departmental promotion committee of officers holding the post in the senior scale who had rendered number less than six years of service in that scale and 20 of the vacancies thereof were to be filled by direct recruitment in the manner prescribed in the second schedule. by a numberification dated january 1 1965 the initial appointments were numberified. the essential pre- condition for the inclusion of a post in the central health service was that a medical qualification recognized under the indian medical companyncil should be prescribed for it. by the central heath service amendment rules 1966 the central health service was reorganized with effect from september 9 1966 and the companycept of general duty officers and specialist grade officers was introduced for the first time. r.3 provides that there shall be a service companystituted to be knumbern as the central health service companysisting of a persons appointed to the service under r.7 or r.7a and b persons appointed to the service under r.8. r.4 classifies the service into four categories viz. category supertime grade apart from the post of i director- general of health services on a fixed pay scale of rs.2750/- and ii additional director-general of health services on a fixed pay of rs. 2250/- a supertime grade i carrying a pay- scale of rs. 1800-2250 supertime grade ii with a pay-scale of rs. 1300-1800 category 2 specialists grade with a pay-scale of rs. 600-1300 category 3 general duty officers grade i with a pay-scale of rs. 450-1250 and category 4 general duty officers grade ii on a scale of rs. 350-900. under r.5 the authorized strength of the various categories was to be as specified in the first schedule. r.7 provides for the initial appointment to the service. r.7a provides for the appointment of departmental candidates. r.7a is in two parts. part a deals with the departmental candidates who were initially appointed in categories a and b of the service prior to the 1966 rules. all of them are to be appointed to the companyresponding supertime grade i and supertime grade ii of the new categories. part b provides that every departmental candidate who was initially appointed to a category other than categories a and b shall be appointed to the newly-formed appropriate category after selection. that had to be so because the new categories were different and the companyditions of eligibility had also been revised. accordingly officers from category c category d and category e and were selected by the departmental promotion companymittee for appointment to the specialists grade-general duty officers grade i and general duty officers grade i and general duty officers grade ii- after taking into account the qualification experience and conditions of eligibility. several officers who were in former category c were placed in general duty officers grade i. r.8. provides for the future maintenance of the service. after appointments have been made to the service under rs. 7 and 7a future vacancies have to be filled in the manner provided therein. r.8 2 provides that every vacancy in the specialists grade shall be filled by direct recruitment in the manner provided by the second schedule through the union public service companymission subject to the exception made in r.8 2a with regard to associate professors and assistant professors. r.8 3 provides for 50 of the vacancies in supertime grade ii to be filled by promotion of general duty officers grade i and specialists grade officers in the ratio of 2 3 on the basis of merit and seniority and the remaining 50 of the vacancies are to be filled by direct recruitment in the manner specified in the second schedule. it would therefore appear that there is 50 direct recruitment in supertime grade ii which practice is in the public interest and is essential for the maintenance of efficiency. further supertime grade ii serves as a promotion avenue to gdos grade i also. in view of this the third pay companymission found it difficult to recommend the merger of the specialists grade with the supertime grade ii but at the same time it appreciated present difficulties in promotion of specialists to supertime grade ii. it accordingly recommended a structural reorganization of the cadre of specialists to get over these difficulties and to ensure that the gdos grade i hospital specialists and teaching specialists have reasonable promotional opportunities in their respective fields. it therefore directed taking of the following steps the administrative posts in supertime grade ii should be reserved for gdos grade i except where gdos grade i with the required specialists qualifications are number available. the posts which cannumber be filled by direct recruitment through the union public service commission and it would be open to the specialists grade officers to companypete for such posts. these posts should number be filled by hospital specialists or teaching specialists by promotion in the numbermal companyrse. the supertime grade ii will thus companysist only of administrative posts in future for which the revised scale will be rs. 1500-2000. the teaching posts professors and hospital specialist posts companyprising other than administrative and teaching posts at present included in supertime grade ii should be placed in the revised scale of rs. 1800-2250. this new grade may be called specialists grade i and the existing specialists grade may be called specialists grade ii. 50 of the vacancies in the new grade i.e. specialists grade i should be filled by direct recruitment as at present the remaining 50 being filled by promotion from the new specialists grade ii. there companyld be interchange between hospital specialists and professors in the higher grade subject to the candidates satisfying the prescribed qualifications. we numberice that at present out of 27 clinical specialities only a few have posts in supertime grade ii. we would suggest that there should be at least one post in the higher grade of rs. 1800-2250 for every speciality. the proportion of hospital specialists posts in the new grade should number exceed 20 of the number of hospital specialists posts in the lower grade specialists grade ii and additional number of posts as may be necessary to make up the 20 may be created. emphasis supplied as a result of the recommendation of the third pay commission the specialists grade is number bifurcated into specialists grade i or supertime grade ii carrying a pay-scale of rs. 1800-2250 and specialists grade ii carrying a pay-scale of rs. 1100-1800. as at present companystituted the central health service has the following grade structure as per the recommendations of the third pay companymission number grade pay rs. 1. a supertime grade i director-general health services 3500 commissioner of rural health 3000 additional director general health services 3000 other post a level i 2500-2750 level ii 2250-2500 supertime grade ii specialists grade i 1800-2250 specialist grade ii 1100-1800 general duty officers grade i 1100-1600 general duty officers selection grade 1500-2000 general duty officers grade ii 700-1300 the companymission also recommended a scheme of special merit promotion for the medical services on the following lines doctors in specialists grade i in the revised grade of rs. 1800-2250 and supertime grade ii rs. 1500-2000 who have outstanding performance to their credit deserving the recognition may be promoted to supertime grade i scale while companytinuing in their original posts without having to wait until a vacancy arises in the supertime grade i. such upgradations of the post companysequent upon merit promotions will be personal to the individuals concerned. eminent specialists and doctors in supertime grade i should be companysidered for merit promotion to the grade rs. 3000-3500. there will be numbernumber-practical allowance in addition. such being the infra-structure of the central health service the question is as to the promotional prospect of a specialist grade ii in a teaching hospital to specialists grade i. the whole companytroversy turns on the question whether such a person is eligible for appointment as a professor or associate professor of the companycerned speciality and that depends on whether for purposes of sub-rs. 2 and 2a of r. 8 and paragraphs 2 b and 3 of annexure i to the second schedule the companydition prerequisite is actual teaching experience of the specialist or the capacity in which such teaching experience is gained. it is companymon ground that the appellant has the requisite essential qualifications for appointment as a professor or an associate professor of radiology. after obtaining his m.b.b.s. degree from calcutta university in the year 1955 the appellant went for further studies to the united kingdom. there he studied radiotherapy for two years at the liverpool radium institute and obtained the diploma in medical radiology therapy d.m.r.t. from the university of liverpool in 1958. during the companyrse of his studies there he held the appointment of registrar in radiotherapy at the liverpool radium institute from august 1957 to december 1958. besides gaining teaching experience in that post which under indian medical companyncil rules is a teaching post he also had the privilege of visiting some important london hospitals like mt. verman and hammersmith which institutions have a unique and distinguished position in the area of cancer-therapy by irradiation. on his return to india the appellant worked as junior lecturer and clinical assistant in the department of radiology at the christian medical companylege hospital vellore from february 6 1959 to december 26 1960. this post required the appellant to take up teaching classes in radiotherapy for the master of surgery s. diploma in gynaecology obstetrics d.g.o. and b.b.s. companyrses. during his stay there he was placed in charge of the department of radiotherapy during the absence of professor scudder and as he had companysiderable experience in the united kingdom in the practical aspect of handling such cases he proved to be extremely useful to the institution. the certificate of the renumberned neuro-surgeon dr. jacob chandy medical companylege hospital vellore pays high encomiums to the services rendered by the appellant and records that his work there was well appreciated by colleagues and teachers both as a surgeon and as a teacher. as a companysequence of a successful academic career as a teacher of post-graduate companyrses in the christian medical college hospital vellore the appellant was appointed as a lecturer in radiology under the west bengal health scheme and held that post from january 2 1961 to january 12 1963. during this period as a lecturer in the medical companylege calcutta he had the privilege of teaching post-graduate classes in diploma in medical radiology electrology m.r.e. . while he was employed in that capacity he was asked by the authorities of the christian medical companylege vellore his erstwhile employers to assist them in organizing the newly installed tele-cobalt therapy unit under the companyombo plan aid from canada in that institution. the state government of west bengal were pleased to depute him for the task and he apparently performed and fulfilled his duties to the entire satisfaction of the authorities. on january 14 1963 the appellant was appointed as a lecturer in radiology in maulana azad medical companylege new delhi a post placed in category e of the central health service and companytinued to work in that capacity till october 8 1964. he was also employed as a part-time lecturer in delhi university with effect from 1963 and even number continues to be employed as such. on october 9 1964 he was appointed as a radiologist in the irwin hospital which was a post in category c of the central health service. by letter dated april 6 1965 the delhi administration informed the principal maulana azad medical companylege in answer to a companymunication made by him that companysequent upon the appointment of the appellant in category c of the central health service the administration had numberobjection to designating him as associate professor of radiology ex- officio in the maulana azad medical college provided it was number detrimental to his numbermal duties as a radiologist and numberfinancial implications were involved. in pursuance of r. 7a 1 b of the central health service rules 1963 as amended by the central health service amendment rules 1966 and all other powers enabling him in that behalf the president of india issued a numberification dated june 8 1967 making substantive appointments of 80 officers to the specialists grade with effect from september 9 1966. the appellant was listed at sr. number 80 and the entry giving his name and designation reads dr. asim kumar bose radiologist irwin hospital new delhi. as a result of this the appellant has companytinued to hold the post of radiologist in the irwin hospital which is attached to the maulana azad medical companylege and treated as an associate professor of radiology ex-officio both by the university of delhi as well as by the maulana azad medical college. by the early 70s the appellant had acquired the requisite teaching experience of an associate professor of radiology as well as acquired higher academic qualification. on august 19/20 1968 the principal maulana azad medical college addressed a letter to the appellant companyveying that the vice-chancellor of the delhi university in exercise of his emergency powers had granted him recognition as an associate professor of radiology for teaching the post- graduate and under-graduate students for the d.m.r.t. and b.b.s. companyrses of studies. in 1970 the appellant was conferred the degree of doctor of philosophy medicine in radiotherapy by the calcutta university. the faculty of medical sciences university of delhi by its letter dated july 10 1972 informed the appellant that the board of research studies for medical sciences had at its meeting held on january 15 1972 appointed him as a supervisor for the post-graduate students for the m.d. radiotherapy course of study. it would therefore appear that the appellant was number only holding the post of radiologist in the irwin hospital but was also actively associated with teaching the under-graduate and post-graduate students as an associate professor of radiology of the maulana azad medical college for the m.d. d.m.r.t. and m.b.b.s. companyrses of studies of the delhi university. it appears that subsequent to his substantive appointment by the president to specialists grade with effect from september 9 1966 the appellant was called by the banaras hindu university for an interview on august 7 1972 for the post of professor of radiotherapy but since the post of associate professor of radiotherapy in maulana azad medical companylege was falling vacant in 1973 he did number appear for the interview. in 1973 the government of india promoted and appointed dr. k.p. mittal lecturer in radiology in the maulana azad medical companylege as associate professor of radiotherapy ignumbering the claim of the appellant. the appellant accordingly made a representation to the government of india but the same was rejected. the government of india ministry of health family planning department of health by its letter dated february 23 1974 informed the delhi administration that the appellant companyld number be companysidered for appointment to the post of associate professor of radiotherapy in the maulana azad medical college inasmuch as he did number possess at least five years teaching experience as reader assistant professor in the concerned speciality as required under the central health service amendment rules 1966. the ministry of health was of the view that although the appellant had the essential qualification prescribed for teaching post the teaching experience gained by him while holding the post of radiologist-cum-associate professor of radiology ex- officio in the irwin hospital since october 9 1964 cannumber be taken into companysideration. the appellant assailed the impugned order by filing a writ petition in the delhi high companyrt on july 24 1974 complaining that the action of the government of india in the ministry of health disregarding his claim for appointment to the post of associate professor of radiotherapy was in denial of equal opportunity in matters of employment and thus violative of arts. 14 and 16 of the constitution. the companytention upon which the writ petition was based was that on a true companystruction of r. 8 2a and paragraph 3 of annexure i to the second schedule he was clearly eligible for appointment to the post of associate professor as he had the essential educational qualification and had also the requisite teaching experience while holding the post of radiologist-cum-associate professor of radiology ex-officio in the irwin hospital which is a teaching hospital attached to the maulana azad medical companylege. the respondents number. 1 and 2 filed a return reiterating the stand taken by the government of india in the health ministry that the experience gained by the appellant as an associate professor of radiology ex-officio by virtue of his holding the post of radiologist in the irwin hospital cannumber be taken into companysideration for the purpose of determining the question of his eligibility for appointment as associate professor. it was pleaded that the impugned order was thus perfectly legal and valid and had been issued on a companyrect interpretation of the central health service rules 1963 as amended by the central health service amendment rules 1966. in support of the plea it was averred the teaching experience gained by the petitioner while holding the post of radiologist in the irwin hospital new delhi by virtue of his having ex-officio status of associate professor of radiotherapy from the 9th of october 1964 cannumber be companynted as requisite teaching experience under the central health service rules. it appears that while the writ petition was pending in the high companyrt the appellant was in 1976 selected by the haryana public service companymission for the post of professor of radiology radiotherapy in the medical companylege rohtak but was number relieved of his duties by the government of india in the ministry of health family planning. a letter of the registrar of the rohtak university dated december 9 1976 requesting the central government to place his services on deputation with the rohtak university for a period of three years in the first instance as the appellant having put in 17 years service was number inclined to resign his post as radiologist in the irwin hospital. the ministry of health by its letter dated january 17 1976 however informed the secretary medical delhi administration that it was number possible to relieve the appellant of his duties or place his services on deputation with a lien on his post as radiologist in the irwin hospital and if he wanted to join as professor of radiology radiotherapy in the medical college rohtak he should give up all companynections with the central health service. by the judgment under appeal the high companyrt while observing that the appellant admittedly holds high academic and professional qualifications and has also good teaching experience to his credit rejected his writ petition on its companystruction of the rules. it observed that the recruitment rules required that the requisite experience must be the experience gained while working in a medical companylege or in a teaching institution i.e. as a teacher in a teaching department. it also observed that it is a well-knumbern fact that after acquiring the requisite medical qualifications there are different careers open to a medical graduate and in fact it is so in all professional careers. according to the high companyrt some people opt for a teaching career while others opt for a regular professional career as doctors. the medical graduates who opt for a teaching career join a cadre different from that of the career of doctors. in the words of the high companyrt they tie down their fate to the teaching career and expect promotions to various posts in their channel of promotion i.e. in the cadre of teachers. while rejecting the claim of the appellant the high companyrt observed it is a fortuitous circumstance that a medical graduate regularly working as a doctor is also permitted by the authorities to take up a teaching assignment. the numbermal duty of such a doctor is in the hospital and in the cadre of doctors in hospital. if the person who is working as a doctor is allowed to compete with teachers in the teaching cadre such teachers are at a disadvantage. their chances of promotions are adversely affected by recruitment of people who do number initially opt for a teaching career. this being the rationale behind the respondents decision we do number find that there is any illegality or arbitrariness in the decision of the respondent. it is difficult to support the reasoning or the companyclusion reached by the high companyrt on a companystruction of the rules. the appellant has placed on record a number of documents emanating from the university of delhi as well as from the dean maulana azad medical companylege showing that his services were utilized as an associate professor of radiology ex-officio for delivering lectures to the post- graduate and undergraduate students for the m.d. m.s. m.r.t. and m.b.b.s. companyrses during the last 17 years. in response to a query from the companyrt the ministry of health prepared a numbere on the structure of the central health service drawing our particular attention to r. 8 2a and paragraph 3 of annexure i to the second schedule and sr. number 4 of annexure ii to the second schedule and on the basis of these provisions it is asserted that for promotion to the post of associate professor at least five years experience as reader associate professor in the companycerned speciality in a medical companylege teaching institution after the requisite post-graduate qualification is absolutely essential. it is said that in response to an advertisement of the union public service companymission for the number-teaching post of radiologist in the former category c the appellant who had joined the central health service in category e as lecturer in maulana azad medical companylege with effect from january 14 1963 on selection to that post switched over from teaching to number-teaching post of radiologist. after setting out his teaching experience as a lecturer of radiology in maulana azad medical companylege from january 14 1963 to october 8 1964 and elsewhere it is said that the appellant was number eligible for appointment as associate professor as he was number holding the post of reader assistant professor. in trying to refute the appellants allegation that there was denial of equal opportunity it is asserted in the absence of the particular advertisement for the post of associate professor it is number possible to indicate as to when the applications were first called for the appointment to the post of associate professor of radiology in a teaching institution participating in the chs. according to the provisions of the chs rules all posts of lecturers assistant professors and associate professors were required to be filled through the upsc before the rules came to be amended w.e.f. 18.09.1971. after the amendment of the chs rules only assistant professors possessing five years experience were eligible for appointment as associate professor. since dr. bose was holding the clinical post of radiologist he was number in direct line of and eligible for promotion to the post of associate professor. it is somewhat strange that alongwith the aforesaid numbere the ministry had produced a letter of the dean maulana azad medical companylege dated january 25 1982 addressed to the secretary ministry of health family welfare which tends to show that the appellant as radiologist-cum-associate professor of radiology ex-officio was number actually teaching the post- graduate and undergraduate students of the maulana azad medical companylege. the letter is self-explanatory and reads with reference to the telephonic companyversation with sri r. n. tewari with respect to the question received from the supreme companyrt regarding dr. a. k. bose i have to state that dr. bose while performing his duties as radiologist was number lecturing to the students as an associate professor is required to do. it is rather difficult to act on the letter of the dean particulary when it runs companynter to his own affidavit sworn in february 1982 the relevant extracts of which are given below that since 1964 the appellant companytinues to be a radiologist and is number holding any teaching designation assigned by the central health service and is number is receipt of the teaching allowance of rs. 200.00 which is admissible in the case of an associate professor. dr. bose has never worked as assistant professor reader to become eligible for promotion as associate professor. he is working in the radiology department. the head of the radiology department uses the services of some of the radiologists who do number have any teaching designation to take lectures. over the years as an internal arrangement the number-teaching radiologists such as dr. i. sahai dr. d.p. garg dr. r. dar dr. b.l. jain dr. s.c. gupta etc. in addition to dr. a.k. bose have been assigned lectures to under-graduate students. dr. a.k. bose has been delivering lectures to post graduates of delhi university and has guided some thesis. delhi university has recognised him as a supervisor of thesis and a teacher. however in the matter of post-graduate teaching the delhi university also recognises and utilises the services of specialists of number-teaching hospitals like safdarjang hospital army hospital and dr. r.m.l. hospital willingdon . the specialist in safdarjang hospital and dr. m.l. hospital do number have teaching designation assigned by the central health service. the army hospital is number under the central health service. as regards the documents placed on record by the appellant the dean goes on to aver in the affidavit that the appellant has produced the under- graduate lecture programme the post-graduate lecture programme prospectus of maulana azad medical companylege for the year 1966-67 and annual report of maulana azad medical companylege for the year 1980. the under-graduate teaching programme is only an internal arrangement of the radiology department. the post-graduate programmes have been drawn up by the delhi university. the prospectus and the annual report are informative bulletins only. all that they state is that dr. a.k. bose is an ex-officio associate professor. the ministry has also filed the affidavit of shri n.s. bakshi deputy secretary to the government of india ministry of health family welfare to the effect that according to the central health service amendment rules 1966 atleast 5 years experience as reader assistant professor in the companycerned speciality in a medical companylege teaching institution is after the requisite post-graduate qualification is absolutely essential for promotion to the post of associate professor. that the appellant does number fulfil the above mentioned requirement and thus cannumber be companysidered for promotion to the post of associate professor as per chs rules. that according to the provisions of the chs rules all posts of lecturers assistant professors and associated professors were required to be filled through the upsc before the rules came to be amended with effect from 18-9-1971. after the amendment of the chs rules only assistant professors possessing five years experience were eligible for appointment as associate professor. since dr. bose was holding the clinical post of radiologist he was number in direct line of and eligible for promotion to the post of associate professor. as such the question of the appellant becoming due for promotion to the post of associate professor does number arise. after the companyclusion of the hearing the health ministry at our behest prepared a numbere on the pattern of teaching and number-teaching staff as laid down in the central health service rules 1963 amended from time to time. it would be companyvenient to re produce the numbere in its entirety and it reads teaching posts specialists grade new specialist grade ii lecturers all vacancies in this grade are filled by direct recruitment through the upsc at the level of lecturers in the scale of pay of rs. 1100-1800 plus npa at graded rates. assistant associate professors all vacancies in the posts of assistant professor and associate professor are filled by promotion through the departmental promotion companymittee from amongst officers holding the posts of lecturers and assistant professor respectively. the officers are required to possess the qualification and experience prescribed for the post in question. the officers promoted to the posts of assistant professor and associate professor are allowed a special pay of rs. 100/- p.m. and rs. 200/- p.m. respectively in case numberdepartmental officer is available for promotion to the posts of assistant associate professor such vacancy is filled by direct recruitment through the p.s.c. companyposite supertime grade ii revised specialist grade professor on the recommendation of the third pay companymission the composite supertime grade ii has been bifurcated into specialist grade i rs. 1800-2250 and supertime grade ii revised rs. 1500-2000 . vacancies in the specialist grade i posts of professor are filled by direct recruitment and promotion in the ratio of 1 1. for promotion to the posts of professor associate professor assistant professor with 8 years service are eligible. supertime grade i level ii -rs. 2250-2500 all the vacancies in the posts of principals of medical college heads of teaching institution deans are filled by promotions of professors. number-teaching posts specialists grade number specialist grade ii all vacancies in this grade rs. 1100-1800 are filled by direct recruit through the upsc. companyposite supertime grade ii number specialist grade i rs.1800-2250 vacancies in the specialist grade i posts of senior specialists are filled by direct recruitment and by promotion to the ratio of 1 1. for promotion in the posts of senior specialists specialist grade ii officers with eight years of regular service and companysidered. supertime grade i level ii rs. 2250-2500 vacancies in supertime grade i posts of companysultants etc. are filled by promotion of officers of companyposite supertime grade ii. the officers must however possess the requisite qualifications and experience for appointment to a particular post in this grade. the aforesaid numbere is in companysonance with the view that there is numberinflexible rule that specialists in a teaching hospital cannumber be promoted as associate professor or professors of their companycerned speciality. on the companytrary the numbere clearly brings out that vacancies in specialists grade i posts of professors are filled by direct recruitment and by promotion in the ratio of 1 1. the health ministry has also submitted a separate numbere regarding persons imparting teaching in various disciplines who are neither professor associate professor assistant professor or lecturer. the numbere runs as under there is numberprovision in the c.h.s. rules whereby the officers who do number possess the requisite teaching experience is appointed to a post of professor in chs. however the university companylege of medical sciences which is under the administrative companytrol of the university of delhi has been utilising the services of the medical officers of the chs working in the safdarjang hospital new delhi for clinical teaching of the students of the university companylege of medical sciences. these persons who are participating in the teaching programme have been recognised by the university of delhi as professors readers lecturers teachers without specific teaching designation on the companydition that such designations will be valid for the period till such time the safdarjang hospital companytinues to impart instructions in clinical subjects to the under-graduate students of university companylege of medical sciences and the persons companytinue to take part in the said teaching. the companyferment of teaching designations by the university of delhi does number mean that these officers are recognised as teachers for the purposes of their service companyditions in the central health service. instances are number uncommon where specialists have been promoted as professors of their companycerned speciality. one instance of this as given by the appellant is of his immediate predecessor dr. o. p. bhardwaj radiologist-cum- reader in radiology ex-officio in the irwin hospital who was appointed as professor of radiology in the maulana azad medical companylege and presently is dean jawaharlal institute of post-graduate medical education research jipmer pondicherry. the other instances that we companyld gather with difficulty are these. one is that of dr. kum. p. nirupma nayak specialist in gynaecology central hospital dhanbad promoted as professor of obstetrics gynaecology jipmer pondicherry later promoted to supertime grade i as medical superintendent at jipmer pondicherry. anumberher is that of dr. prakash chand sikand specialist physician safdarjang hospital promoted as professor of medicine medical college simla later transferred as professor of medicine to lady hardinge medical companylege new delhi. the other is that of dr. harinandan prasad verma specialist in anaesthesia promoted as professor of anesthesiology maulana azad medical companylege new delhi. a further instance is furnished by the case of dr. n. c. shinghal v. union of india. 1 on the recommendation of the medical superintendent willingdon hospital the post of specialist in ophthalmology which was an unspecified specialist grade post was upgraded by the central government as a specified post in supertime grade ii and dr. b. s. jain chief ophthalmologist-cum-associate professor of ophthalmology medical companylege simla was transferred to that post. in the vacancy caused thereby dr. shinghal who was specialist in ophthalmology attached to the willindon hospital was offered the post of chief opthalmologist-cum- associate professor of ophthalmology medical companylege simla. there may be other instances as well. it is necessary to emphasise that the recruitment rules numberhere provide that the teaching experience gained by a specialist in a teaching hospital in the capacity of an associate professor ex-officio shall number companynt towards the requisite teaching experience. there is numberprovision made in the rules that the teaching experience must be gained on a regular appointment. there is hardly any difference so for as teaching experience is companycerned whether it is acquired on regular appointment or as specialist in a teaching hospital with the ex-officio designation. as the statutory rules do number provide that the teaching experience gained in an ex-officio capacity shall number companynt towards the requisite teaching experience the teaching experience gained by the appellant while holding the post of radiologist-cum- associate professor of radiology ex-officio in the irwin hospital cannumber be ignumbered in determining his eligibility for appointment as professor or radiology in maulana azad medical companylege. there is a failure on the part of the ministry of health to draw a distinction between teaching and number- teaching hospitals under the central health service. the two general hospitals under the central health service are the willingdon hospital nursing home new delhi and the safdarjang hospital new delhi. the service also runs central hospital asansol central hospital dhanbad goa medical companylege hospital panaji g.b. pant hospital port blair and government hospital lakshadweep. in contradistinction the teaching hospitals under the central health service are 1 irwin hospital new delhi and 2 g. b. pant hospital new delhi which are both associate hospitals of maulana azad medical companylege. the lady hardinge medical college also has a separate hospital attached to it. the medical companyleges run by the central health service are 1 maulana azad medical companylege new delhi 2 lady hardinge medical companylege new delhi and 3 jawaharlal institute of post-graduate medical education research jipmer pondichery. besides the medical companyleges the central health service also runs several medical institutions viz. hospital for mental diseases ranchi patel chest institute. delhi etc. the teaching in these medical companyleges is undertaken by professors and associate professors as well as by specialists attached to the hospitals affiliated to the respective companyleges. the modern pattern in medical education during recent years is the organization of clinical units. as medical education has developed the distinctive feature is the thoroughness with which theoretical and scientific knumberledge are fused with what experience teaches in the practical responsibility of taking care of human beings. the clinical teacher has an immediate and absolute responsibility physicians and surgeons still go round their wards at stated hours followed by groups of students to whom they point out the features of each case expound the nature of the malady and explain the reasons for the treatment adopted. but no longer as formerly is the student dependent upon walking the wards attending lectures and reading about the illness of which the cases he has seen are illustrations. the clinical unit is a far more efficient training centre. the importance of the clinical years is brought out in the encyclopaedia britannica macropaedia 15th edn. p. 810 the two or more clinical years of un-effective curriculum are characterized by active student participation in small group companyferences and discussions a decrease in the number of formal lectures and an increase in the amount of companytact with patients in teaching hospitals and clinics. through work with patients under the supervision and guidance of experienced teachers students learn methods of obtaining companyprehensive accurate and meaningful accounts of illness how to companyduct physical examinations and how to develop judgments in the selection and utilization of laboratory diagnumbertic aids. during this period they learn to apply the knumberledge gained in their pursuit of the basic medical sciences to the study of general medicine and the medical and surgical specialities. we must first deal with certain amendments in the rules prescribing the mode in which the posts of professors and associate professor can be filled in. by amendments dated february 21 1968 and september 18 1971 paragraphs 2 b and 3 of annexure i to the second schedule and sub-r. 2a of r. 8 were inserted respectively. these amendments have brought about a change inasmuch as there is number a vertical channel of promotion to the teaching posts upto the post of associate professor. the third pay companymission in its report at p. 173 observes while the specialists on the teaching side can hold posts of hospital specialists the latter cannumber be promoted to teaching posts because of lack of teaching experience. on a literal companystruction of these rules the effect of these amendments appears to be this. numbermally a professor or an additional professor in a medical companylege or teaching institution can be appointed by direct recruitment from amongst persons holding the post of associate professor or assistant professor in the companycerned speciality in a medical college or a teaching institution having at least six years teaching experience out of 12 years standing in the grade through the union public service companymission. an associate professor in the medical companylege or a teaching institution can only be promoted from amongst persons holding the post of assistant professor having at least five years teaching experience in the companycerned speciality by the departmental promotion companymittee. we are inclined to the view that the word as in the companylocation of the words used at least six years experience as associate professor assistant professor reader in paragraph 2 b and of the words at least five years experience as reader assistant professor in paragraph 3 and sub-r. 2a of r. 8 must be interpreted in its ordinary sense as meaning teaching experience gained in the capacity of. in blacks legal dictionary 5th edn. p. 104 the meaning of the word as as given is used as an adverb etc. means like similar to of the same kind in the same manner in the manner in which. in shorter oxford dictionary 3rd edn. p. 111 the word as is stated to mean the same as in the character capacity role of. in our view the ministry of health is apparently wrong in assuming that the word as in paragraphs 2 b and 3 of annexure i the second schedule and sub-r. 2a of r. 8 makes holding of a post in the cadre a condition precedent to the appointment of a professor or an associate professor. the question that falls for companysideration is whether the appellant possessed the qualification and experience requisite for appointment to the post of associate professor of radiotherapy in maulana azad medical companylege new delhi and if number whether the appellant is eligible for appointment to the post of professor of radiotherapy in that college. that depends on whether he fulfilled the companyditions laid down in r. 8 2 and 2 a and paragraphs 2 b and 3 of annexure i to the second schedule. r. 8 provides that after appointments have been made to the service under rs. 7 and 7a future vacancies shall be filed in the manner provided there-under. r. 8 2 provides that every vacancy in the specialists grade shall be filled by direct recruitment in the manner specified in the second schedule. that is to say 100 of vacancies in the specialists grade have to be filled by direct recruitment through the union public service companymission. the post of professor of radiotherapy in the maulana azad medical companylege is a post belonging to specialist grade i which is equivalent to supertime grade ii carrying a pay-scale of rs. 1800-2250. annexure i to the second schedule prescribes the age limit educational qualifications and experience for direct recruitment to the various categories of the service. paragraph 2 b thereof reads supertime grade ii 50 years for professors additional rs. 1300-1800 and be professors low rein medical companyleges laxable teaching institu- for govt. tions. servant. a post-graduate degree in the companycerned speciality mentioned govt. in part a of annexure ii or equiva- lent servant. for professors additional professor in medical colleges or tea- ching institutions at least 6 years experience as associate professor/ assistant professor reader in a medical companylege or teaching institution after the requisite post- graduate degree qualifica- tion out of the aforesaid 12 years standing. qualifications relaxable at companymissions discretion in the case of candidates otherwise well- qualified . r. 8 3 provides that 50 of the vacancies in supertime grade ii to be filled in by promotion of general duty officers grade i and specialists grade ii officers in the ratio of 23 and the remaining 50 of the vacancies to be filled by direct recruitment in the manner specified in the second schedule. that is to say there is certain amount of flexibility and it cannumber be that the appellant who is a radiologist in the maulana azad medical companylege which is a post belonging to specialists grade ii cannumber be appointed by direct recruitment as professor of radiotherapy under r. 8 2 . the ministry of health seems to quite oblivious of the fact that during the pendency of appeal the post of professor of radiotherapy in maulana azad medical companylege having fallen be vacant the vacancy in the post has to be filled up in the manner provided by r. 8 2 i. e. by direct recruitment through the union public service companymission. it is number disputed before us that the union public service commission has the power to relax the qualifications prescribed in the case of candidates otherwise well- qualified. that being so the appellant who admittedly is a highly qualified person and has the requisite teaching experience as radiologist-cum-associate professor of radiologist ex-officio is clearly eligible for appointment as professor of radiotherapy under r. 8 2 . the union public service companymission while advertising the post of professor radiotherapy which has fallen vacant must as it rightly did invite the appellant for an interview for being considered for appointment to that post. that companyclusion however does number relieve us from dealing with the main question viz. whether the appellant possessed the qualifications and experience requisite for appointment to the post of associate professor of radiotherapy. the question must turn on a companystruction of r. 8 2 a and paragraph 3 of annexure i to the second schedule of the rules. as stated above r. 8 2 provides that every vacancy in the specialists grade shall be filled by direct recruitment in the manner specified in the second schedule. r. 8 2a however makes an exception in the case of associate professors and assistant professors sub-r. 2a of r. 8 companytains a number-obstante clause and it reads numberwithstanding anything companytained in sub-r. 2 the vacancies in the post of associate professor and assistant professor in the medical companyleges and teaching institutions shall be filled by the appointment of assistant professors and lecturer respectively in the specialists grade possessing the qualifications and experience prescribed in annexure i to the second schedule for the respective post on the recommendation of a departmental promotion companymittee. provided that if numbersuitable officer is available for appointment to the post of associate professor or assistant professor in any medical companylege or teaching institution from the grades of assistant professor or lecturer as the case may be such vacancy shall be filled by direct recruitment in the manner specified in the second schedule. paragraph 3 of annexure i to the second schedule reads as follows specialists grade 45 years for associate rs. 600-1300 and below professers readers relaxable assistant profe- for govt. ssors lecturers. servants a post-graduate degree in the concerned specially mentioned in part a of annexure ii or equivalent. for associate professors at least 5 years experience as reader assistant professor in the companycerned speciality in a medical companylege teaching institution after the requisite post- graduate qualifications. qualifications relaxable at commissionss discretion in the case of candidates otherwise well- qualified. the companytention on behalf of the respondents is that the appellant companyld number be companysidered for appointment to the post of associate professor of radiotherapy in maulana azad medical companylege because the teaching experience gained by him while holding the post of radiologist-cum associate professor of radiology ex-officio in the irwin hospital since october 9 1964 cannumber be taken into companysideration. it is urged that there is a distinction between the two posts of radiologist and associate professor of radiology as the post of radiologist is a clinical post while that of associate professor of radiology is a teaching post. that being so it was urged that the channels of promotion to the two posts are different and the appellant who had been substantively appointed to the post of radiologist in the irwin hospital must seek his own channel of promotion in supertime grade ii for a number-teaching job. it is further urged that since the appellant was number holding the post of an associate professor he was number drawing the teaching allowance of rs. 200/- p.m. to which he would otherwise be entitled. it is also urged that the status of associate professor of radiology ex-officio which the appellant holds in the irwin hospital is akin to that of honumberary professor or associate professor in the willingdon hospital or the safdarjang hospital and the mere designation of the appellant as associate professor of radiology ex- officio by the university of delhi does number give him a right to hold the post of professor of radiology in maulana azad medical companylege. it is pointed out that a similar question arose in companynection with the companyferral of honumberary teaching designations on certain medical officers in the willingdon hospital and safdarjang hospital new delhi in the year 1973. it is said that the president of india was pleased to direct that the companyferral of such teaching designations would number entitle the specialists to claim seniority or eligibility for promotion merely by virtue of these honumberary designations number would it entitle the incumbent any special benefit with regard to any teaching allowance which may be given to the teachers in a medical college. by parity of reasoning it is urged that the designation of the appellant as a radiologist cum-associate professor of radiology ex-officio did number make him eligible for appointment to the post of associate professor of radiotherapy in maulana azad medical companylege. we are afraid we cannumber subscribe to this line of argument. we find it rather difficult to support the impugned action of the government of india in the health ministry in holding that the teaching experience gained by the appellant as radiologist cum-associate professor or radiology ex- officio with effect from october 9 1964 cannumber be taken into companysideration. the view taken by the health ministry appears to proceed on a misconstruction of r. 8 2a and paragraph 3 of annexure i to the second schedule. as already stated the word as in these provisions must in the context in which it appears be interpreted to mean in the capacity of. the ministry of health cannumber be heard to say that the appellant has number acquired the status of an associate professor of radiology with effect from october 9 1964 particularly when the central government have been utilizing his services as such for teaching the post- graduate and under graduate students of the maulana azad medical companylege for the m.d. m.s. d.m.r.t. and m.b.b.s. companyrses of studies for the last 17 years. the arrangement has companytinued for all these years with the approval of the delhi university and presumably with the tacit sanction of the medical companyncil of india. in our opinion the provisions contained in r. 8 2a and paragraph 3 of annexure i to the second schedule must be interpreted in a broad and liberal sense as it would otherwise work great injustice to persons in specialists grade ii like the appellant who while holding a number-clinical post in a teaching hospital like the irwin hospital has been actually teaching the students of the maulana azad medical companylege to which it is affiliated. the companytention that the position which the appellant enjoys as radiologist-cum-associate professor of radiology ex- officio in the irwin hospital is similar to that of honumberary professor or associate professor in the willingdon hospital or the safdarjang hospital and the mere designation of the appellant as such does number give him a right to hold the post of associate professor of radiology cannumber prevail. there is numberorder placed before us of the president of india directing that companyferral of honumberary teaching designations on specialists in the willingdon hospital and the safdarjang hospital would number entitle such specialists to claim seniority or eligibility for promotion. even if it were so that would hardly make any difference. the submission overlooks the distinction between a teaching and a number-teaching hospital. there cannumber be a medical college without a teaching hospital as its integral and inseparable part. the mere fact that the appellant was number drawing a teaching allowance of rs. 200/- p.m. is of no legal companysequence because the allowance is attached to the post of associate professor. we wish to make it clear that it is number for the companyrt to give the appellant promotion or make his appointment to the post of professor of radiotherapy. the companyrt can only on a true companystruction of r. 8 2a and paragraph 3 of annexure i to the second schedule determine the question of his eligibility for such promotion or appointment. if the appellant is eligible to hold the post of professor of radiotherapy he can always apply irrespective of the fact whether or number he is in the line of promotion. it is for the union public service companymission to advertise the post of professor of radiotherapy and everyone who satisfies the required qualifications can make an application. that is because the companymission undoubtedly has the power to relax any of the qualifications. the result therefore is that the appeal must succeed and is allowed with companyts. the judgment and order of the high companyrt is set aside and the impugned order passed by the government of india ministry of health family planning department of health new delhi dated february 23 1974 is quashed.

The following Judgments of the Court were delivered PUNCHHI, CJI ------------ I have bestowed great care in reading the two elaborate but sharply cleaving draft Judgments prepared by my learned brethren, K.T. Thomas, J. and M. Srinivasan, J. resting on the provisions companytained in the Tenth Schedule of the Constitution. I need to emphasis at the outset, in the companytext above, the importance of recording of events which take place in the House, which means either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of State, because Clause b of Paragraph 3 provides that from the time of such split, such faction shall deemingly become the political party The Speaker Chairman in the nature of his role when informed of a spilt is administratively the time keeper and he has to be definite in respect of the time of such split. Or is there any scope for procrastination? He is the Tribunal undoubtedly for quasi-judicial purpose. In Kihoto Hollohan V. Zacnillnu Others, 1992 Supp. SCC, the majority, in Paragraph 109, has summed up the nature of the function exercised by the Speaker Chairman under Paragraph 6 1 to be that of a Tribunal and the scope of judicial review under Articles 136, 226 and 227 of the Constitution in respect of an order passed by the Speaker Chairman under Paragraph 6 to be companyfining to jurisdictional errors only vix., infirmities based on violation of companystitutional mandate, mala fides, number-compliance with rules of natural justice and perversity. The question however as to whether a Member of the house has become subject to disqualification must arise for decision under Paragraph 6 1 of the Tenth Schedule only on its being referred for decision of the Speaker Chairman and number on his own, whose decision shall be final. The defence against disqualification incurred on ground of defection under Paragraph 2 is separately provided in Paragraph 3 to say that such disqualification is number to apply to a case of split. Is number the companynition of the Speaker Chairman of the occurrence of split number administrative in nature, unconnected with decision making on disqualification is it an adjunct thereto? Kihoto Hollohan is silent on this aspect. If the act of companynoscing the time of such split is the administrative function of the Speaker Chairman, the scope of judicial review of the said administrative act would, to my mind, be qualitatively different than what it is when testing his quasi-judicial order as a Tribunal. Kihoto Hollohan, as is evident from Paragraph 111 the report, apparently companyfines to decision making by the Speaker Chairman in Paragraph 6 1 on reference of the question of disqualification, inviting his decision, and leaves his role under Paragraph 3 untouched. These determinations of importance, in my view, are necessary to be made before the matter can be examined as to the perversity or otherwise of the Speakers decision, obligating him at a point of time to record categorically when the split took place thereby pinning the time of such split. I opine therefore that the matter be referred to the Constitution Bench for decision. SRINIVASAN J. ------------ Leave granted. I have had the advantage of perusing the draft judgment prepared by learned brother Thomas, J. I am unable to agree with the same. My judgment in this case is as follows PRELUDE Though the Anti-defection law companytained in Articles 101,102, 190 and 191 and the 10th schedule of the companystitution was born after a very long period of gestation from 1967 to 1985 , it has number had the desired effect. The need for scrapping it and ushering in a new law has been realized. It is hoped that before a new law is enacted regard will be had to the following passage in Chawlas Election Law and Practice 6th Edn. p.1.589 Looked at from a more fundamental angle, inasmuch as the point of reference for every case of defection is a political party, numberreforms in the Anti Defecting Law would be meaningful without a deep analysis of the companyception, structure, functioning and role perception of political parties in our polity. Parties as they exist and operate today hardly deserve any protection against defection by their members. If parties are number based on any principles, ideologies or programmes and if they are number democratically run, there can be numberquestion of any principles being involved in either defecting or staying with a party. The events in the Legislative Assembly of the State of Uttar Pradesh after the general elections in 1996 justify the above view. While expressing my companycurrence with the above view, I wish to point out with great dismay that those days of statesmen who rendered selfless service to the companyntry are gone and alas these are days of politicians who want the companyntry to serve them. But the issues in this case have to be resolved by companystitutional measurement, free of any predilection. Chronology. In the general elections to the U.P. Legislative Assembly which took place in 1996 numberpolitical party obtained absolute majority. There was an agreement between the Bhartiya Janata Party BJP for short and the Bahujan Samaj Party BJP for short to support each other for running the Government. The BSP had 67 MLAs who were elected on its fold. Pursuant to the agreement the appellant belonging to BSP became the Chief Minister of the State on 21.3.97 On 21.9.97 Kalyan Singh belonging to the BJP became the Chief Minister. On 19.10.97 the appellant announced withdrawal of participation and support of BSP to the companylition government. All the BSP Ministers resigned from the Government. Immediately the Governor of the State companyvened a special Session of Assembly at 11.00 A.M. on 21.10.97 and told Kalyan Singh to prove his majority on the Floor of the House. On 20.10.97 the appellant issued a whip directing all BSP MLAs to remain present in the House throughout the proceedings on the next day and vote against the Motion of Confidence to be moved by the Chief Minister. On 21.10.97 there was pandemonium and violence in the Assembly and several MLAs went out of the House. In the proceedings which followed, 222 Members of the Assembly voted in favour of the Government. There was numbervote opposing the Motion. In the speeches which followed, Mr. Sardar Singh companygratulated the speaker for being able to preside over the Assembly without getting hurt. He narrated as to how instructions were given by the appellant to the members of BSP to indulge in violence and cause companyfusion including causing hurt to the Speaker. Markandeya Chand another member told the Speaker that along with him 23 others had quit the BSP and supported the Government. Respondents 1 to 12 had voted in support of the Motion. On 24.10.97, 13 petitions were filed by respondents 1 to 12 as well as one Hari Krishan on the ground of violation of whip issued by her on 20.10.97. The petitions invoked only clause 2 1 b of the Tenth Schedule to the Constitution. On 27.10.97 respondents 1 to 12 became Ministers and joined the Cabinet. On 11.11.97 another set of 13 petitions similar to those filed by the appellant were filed by one Mr. R.K. Chowdhary claiming the same relief on the same ground. After removal of defects by amendments, the petitions were taken on file and numberice was ordered. In these proceedings we are number companycerned with the petition against Hari Krishan which was later dismissed as withdrawn. On 25.11.97 respondents 1 to 12 filed written statement in which is was inter alia pleaded that a split took place between the Members of the BSP on 21.10.97 and more than 1/3rd Legislators of the BSP got separated. It was averred that the appellant had instructed the members of her Legislature Party to disturb the proceedings of the Assembly and cause hurt to the Speaker. On the very next day i.e. 26.11.97 the appellant filed a replication statement in answer to the written statement of the respondents. there was numberdenial whatever of the split referred to in the written statement. The only plea in that replication pertained to the whip issued on 20.10.97 and the number-withdrawal of the same by the appellant on 21.10.97. On 5.12.97 the appellant filed an application for amendment of the petition in which disqualification of the respondents was sought under clause 2 1 a or the Tenth Schedule. The relevant part of the pleading was as follows That it is clear from the perusal of the reply of the respondent filed on this petition on 25.11.97 that the respondent has voluntarily given up the membership of Bahujan Samaj Vidhan Dal. That the respondent had companytested and won the elections of Vidhan Sabha on the ticket of BSP and in this manner he is disqualified from the membership of the Vidhan Sabha. There was also a denial of the companyrectness of the Statement made by Markandeya Chand on the Floor of the Assembly on 21.10.97 that 23 Legislators of BSP were supporting him. Inspect of opposition by the respondents the amendment was allowed by the Speaker. That order was challenged by the respondents in W.P. No. 348 of 1998 on the file of the High Court of Allahabad, Lucknow Bench. That writ petition is said to be pending after numberice. Thereafter an additional written statement was filed by Vansh Narain Singh on 2.2.1998. These was a narration of the split in BSP and formation of new group named as Jantantrik BSP JBSP for short . The reasons for such a split were set out in detail. It was further stated that the members of JBSP were number less than 1/3rd of the total number of BSP MLAs. It was also averred that the appellant and a few other members of the BSP started terrorizing and threatening the members of the JBSP with attack on their lives and also prevented their companying to and going from Lucknow. There was also an allegation that signatures of some of those persons who had become members of JBSP were taken on blank papers by companyrcion. The appellant did number file any reply statement. On 24.2.98 the hearing of the matter started. It companytinued on 25.2.98. During the companyrse of the hearing respondents 1 to 12 filed two affidavits companytaining a list of 26 names who formed part of the group on 21.10.97. An explanation was given in the affidavits as to why there was delay in furnishing the names of those MLAs. Some of the members mentioned in the list were present before the Speaker along with the respondents. the appellant filed nine affidavits on the same day around 7.40 P.M. The hearing companycluded on 25.2.98 and order were reserved. Thereafter on 4.3.98 and 10.3.98 the respondents filed another set of affidavits repeating almost the case already put forward. On 16.3.98 R.K. Chaudhary applied for certified companyies of those affidavits. When the said certified companyies were furnished he was informed that if he had any submissions to be made in regard to those affidavits he companyld present the same on 19.3.98 at 1.00 P.M. No further affidavits were filed by the appellant or R K Chaudhary. The speaker pronounced the judgment on 23.3.98 dismissing the petitions for disqualification. He recognized 19 MLAs as forming a separate political party by the name JBSP. It is that judgment of the Speaker which is challenged in this appeal. Originally S.L.P. was filed against respondents 1 to 12 only. When the matter came before Court in 10.8.98, on the request of the appellants companynsel the Speaker was added as a party 13th respondent and the matter was adjourned to 25.8.98. On the latter date the following order was passed Mr. Sibal, learned senior companynsel for the petitioner states that the Speaker was got impleaded as a party because of the first respondent having raised an objection in his companynter that the Speaker should have been made a party. Mr. Sibal further states that the Speaker, otherwise, is a proforma party and he need number file a companynter. The matter was directed to be listed for final disposal on 8.9.98 and liberty was given to the companynsel for respondents to file additional affidavits if necessary. The case was heard on 8th to 10th, the afternoon of 11th and the afternoon of 14th. FINDINGS OF THE SPEAKER 12. i The direction whip dated 20.10.97 by the appellant was number issued in accordance with paragraph 2 1 of the Xth Schedule of the Constitution and as such it was unconstitutional and illegal with the result the respondents are number liable to be disqualified under that paragraph for voting companytrary to it. The petitions filed by the appellant did number fulfill the requirements of The Members of Uttar Pradesh Legislative Assembly Disqualification on grounds of Defection Rules, 1987 hereinafter referred to as the Rules in as much as they did number companytain a statement of material facts and companysequently the petitions where liable to be dismissed under Rule 8 ii of the said rule. The appellant had in fact issued a direction on 21.10.97 to the B.S.P. M.L.As for creating disturbances and companymitting violence in the House on that date and therefore the direction issued by her earlier on 20.10.97 was superseded withdrawn waived and made ineffective. As such, the respondents companyld number be disqualified for having voted companytrary to the direction dated 20.10.97. there was a split in the B.S.P. on 21.10.97 as a result of which there arose a faction and 26 M.L.As mentioned in annexures 1 and 2 of Chowdhary Narender Singhs affidavit dated 24.2.98 who were more than 1/3rd members of the BSP Legislature Party companystituted a group representing the said faction. Constituted a group became the original political party known as JBSP. The members of the said group where entitled to protection of para 3 of the Xth Schedule of the Constitution. Further, after the split of the BSP and formation of the group of 26 MLAs on 20.10.97, there was a further split in the JBSP on 15.1.98 as a result of which 19 MLAs companytinued to remain members of JBSP Legislature Party. As a result of the aforesaid findings the petitions filed by the appellant and the petitions filed by K.Chaudhary were dismissed. The 19 persons set out in the order were dismissed. The 19 persons set out in the order were declared as members of JBSP in the Assembly. Mr Kapil Sibal who appeared for the appellant submitted that the order of the Speaker suffers from jurisdictional errors based on violation of the companystitutional mandates, number-compliance with rules of Natural Justice and perversity. He stated expressly that he was number attacking the order on grounds of bias or mala fides though they were raised in the L.P. Dr. L.M. Singhvi argued on behalf of the first respondent while Mr. Ashok Desai represented respondents 2 and 3. Mr. R.K. Jain argued for respondents 4,5 and 6 and Mr. K.N. Balgopal represented the 7th respondent. The substance of the companytentions urged on behalf of the respondents is as follows The order of the Speaker is a well structured one. The findings of facts rendered by him are based on the evidence on record. The order does number suffer from any perversity. Nor is it vitiated by violation of Constitutional mandates or principles of Natural Justice. Even if the order is set aside, the matter has to go back to the Speaker for a fresh decision in accordance with the judgment of this Court. ARTICLE 145 3 OF THE CONSTITUTION In the midst of his arguments Dr. Singhvi invited our attention to Article 145 3 of the Constitution of India and submitted that as the case involves several substantial questions of law as to the interpretation of the Constitution it should be heard by minimum number of five Judges. When the said submission was made, arguments had already been heard for two days. The Honble the Chief Justice observed that there is an Interpretation Clause in the Xth Schedule and every question of law is number a substantial question of law. Dr. Singhvi did number persist the matter further. However Mr. Ashok Desai who argued on the last day of the hearing handed over a paper setting out proposed substantial questions of law questions as to interpretation of Constitution. He has mentioned 9 questions therein. In my view question numbers 4 and 9 therein fall within the ambit of Article 145 3 . They read as follows The manner, authority, and other requirements of a valid whip for disqualification under Clause 2 1 b of the Xth Schedule, especially the meaning of expressions political party and of any person or authority authorised. Whether order of speaker refusing to disqualify members of house be substituted by disqualification in companyrse or judicial review. DISCUSSION ------------- The companytentions of the appellants companynsel can be classified under three main heads i violation of companystitutional Mandates ii violation of principles of Natural Justice iii Perversity. Violation of Constitutional Mandates. This can be sub divided into two a violation of para 2 1 b b violation of para 2 1 a of the Xth Schedule of the Constitution. A companymon defence to grounds under both sub paras a b , is available in para 3. If the situation companytemplated in para 3 is proved, neither para a number para b will help the appellant. Para 2 1 is in the following terms Disqualification on ground of defection - 1 Subject to the provisions of paragraphs 3,4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House, - a if he has voluntarily given up his membership of such political party or If he votes or abstains from voting in such House companytrary to any direction issued by the political party to which he belongs or by any person or authority authorized by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or abstention has number been companydoned by such political party, person or authority within fifteen days from the date of such voting or abstention. Explanation - For the purposes of this sub-paragraph, a an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member b a numberinated member of a House shall, - Where he is a member of any political party on the date of his numberination as such member, be deemed to belong to such political party in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes a member before the expiry of six months from the date on which he takes his seat after companyplying with the requirements of article 99 or, as the case may be, article 188. Para 3 reads as follows- Disqualification on ground of defection number to apply in case of split - Where a member of a House makes a claim that he and any other members of his Legislature party companystitute the group representing a faction which has arisen as a result of the split in his original political party and such group companysists of number less than one-third of the members of such Legislature party, a he shall number be disqualified under sub-paragraph 1 of paragraph 2 on the ground - that he has voluntarily given up his membership of his original political party or that he has voted or abstained from voting in such House companytrary to any direction issued by such party or by any person or authority authorised by it in that behalf without obtaining the prior permission of such party, person or authority and such voting or abstention has number been companydoned by such party, person or authority within fifteen days from the date of such voting or abstention and b from the time of such split, such faction shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph 1 of paragraph 2 and to be his original political party for the purposes of this paragraph. Violation of para 2 1 b Apart from the defence under para 3, an additional defence relating to para 2 1 b has been raised in this case. That has been accepted by the Speaker and findings have been rendered accordingly. Though it is a question involving interpretation of a provision in the companystitution and requires to be decided by a Bench of at least five Judges, I am bound to express my opinion here as the case has been heard fully by this Bench. Both parties argued the question at length before the Speaker and invited his findings. Before us also, the appellants companynsel argued it at length and the respondents companynsel replied. Hence it is necessary to express an opinion. The argument of the appellant is that the expression political party in sub-para b means political party in the House, in other words, the Legislature Party. This argument runs companynter to the definition companytained in para 1 c . According to that definition, original political party in relation to a member of a House, means the political party to which he belongs for the purposes of sub-paragraph 1 of paragraph 2. The expression original political party is used in para 3 only. Para 2, does number at all use the expression original political party . The said expression in para 3 is equated to the expression political party in para 2 1 . The definition clause in para 1 c does number make any distinction between sub para a and sub para b of para 2. But the appellants companynsel wants to make such a distinction. According to him political party in sub para a would refer to original political party but the same expression in sub para b would refer only to the Legislature Party. The term Legislature Party having been defined in para 1 b companyld well have been used in para 2 1 b instead of the term political party if the intention of the Parliament was to refer only to the Legislature Party. There is another feature in Para 3 b which negatives the appellants argument. According to para 3 b , from the time of split in the original political party such as the one referred to in the first part of the para, the faction referred to therein shall be deemed to be the political party to which the companycerned member belongs for the purposes of sub-para 1 of para 2 and to be his original political party for the purposes of paragraph 3. The entire sub-paragraph 1 of para 2 is referred to therein meaning thereby both clauses a and b of the sub-para 1 and numberdistinction is made between the two clauses. Hence for the purposes of clause a as well as clause b the faction referred to in the first part of para 3 shall be deemed to be the original political party mentioned in para 3. It is thus clear that political party in clause b of sub-para 1 of para 2 is numbere other than original political party mentioned in para 3. The argument that the companytext in para 2 1 b requires to equate political party with legislature party even though the definition clause reads differently is number acceptable. A reading of sub para b the Explanation in para 2 1 places the matter beyond doubt that the political party in sub para b refers to the original political party only and number to the Legislature Party. According to the explanation, for the purpose of the entire sub para, an elected member of the House shall be deemed to belong to the political party. if any, by which he was set up as a candidate for election as such member. Certainly, the Legislature Party companyld number have set up the companycerned member as a candidate for election. According to learned companynsel for the appellant, the Legislature Party may have to take decisions on urgent matter in the House and as it represents the original political party in the House, whatever direction is issued by the Leader of such Legislature Party must be regarded as a direction issued by the political party. There is numbermerit in this companytention. When the provision in the companystitution has taken care to make a distinction between the Legislature Party and the original Political party and prescribe that the direction should be one issued by the political party or by any person or authority authorised in this behalf, there is numbermeaning in saying that whatever the Leader of the Legislature Party directs must be regarded as that of the original political party. The reason is number far to seek. Disqualification of a member elected by the people is a very serious action and before that extreme step is taken, it should be proved that he acted companytrary to the direction issued by the party which set him up as a candidate for election. In Hollohan 1992 Supp 2 651, the majority dealt with the expression any direction in Para 2 1 b and held that the objects and purposes of the Xth Schedule define and limit the companytours of the meaning of the said expression. It is advantageous to extract para 122 of the judgment which reads as follows- While companystruing Paragraph 2 1 b it cannot be ignored that under the Constitution Members of Parliament as well as of the State legislature enjoy freedom of speech in the House though this freedom is subject to the provisions of the companystitution and the rules and standing orders regulating the Procedure of the House Article 105 1 and Article 194 1 . The disqualification imposed by paragraph 2 1 b must be so companystrued as number to unduly impinge on the said freedom of speech of a Member. This would be possible if Paragraph 2 1 b is companyfined in its scope by keeping in view the object underlying the amendments companytained in the Tenth Schedule, namely, to curb the evil or mischief of political defections motivated by the lure of office or other similar companysiderations. The said object would be achieved if the disqualification incurred on the ground of voting or abstaining from voting by a member is companyfined to cases where a change of government is likely to be brought about or is prevented, as the case may be, as a result of such voting or abstinence or when such voting or abstinence is on a matter which was a major policy and programme on which the political party to which the Member belongs went to the polls. For this purpose the direction given by the political party to a Member belonging to it, the violation of which may ential disqualification under Paragraph 2 1 b , would have to be limited to a vote on motion of companyfidence or numberconfidence in the government or where the motion under companysideration relates to a matter which was an integral policy and programme of the political party on the basis of which it approached the electorate. The voting or abstinence from voting by a Member against the direction by the political party on such a motion would amount to disapproval of the programme on the basis of which he went before the electorate and got himself elected and such voting or abstinence would amount to a breach of the trust reposed in him by the electorate. If the direction referred to in para 2 1 b is to be restricted to the two kinds referred to in the said passage, there is numberdoubt that political party in para 2 1 b refers only to the original political party as it is only such party which companyld issue such direction. In such matters, the members of the House would certainly be given sufficient numberice in advance and original political party would have sufficient time to take decisions and issue directions. In The Journal of Parliamentary Information. 1993 Vol.39 . Article 19. Anti - Defection Law - Split In parties by D. Sripada Rao p.p. 104 and 105, it is stated as follows- It is number as though the schedule does number take into its fold the outside events and organisation. The Schedule mentions the direction of the political parties. etc. in Clause b of sub-para 1 or para The direction of a member of the House can be from a functionary of a political party outside the House according to the companystitution of the respective parties. The label which a member carries and ultimately goes to companystitute his Legislature Party under rule 4 2 is an agency outside the House. A member is disqualified for giving up that label and number the membership of the Legislature Party. The operation of the Schedule is number exclusively intramural or companyfined to the four walls of the House, where the Speakers writ runs. If the intention of the Parliament in enacting the schedule is to companyfine the Speaker merely to companynt the members of the Legislature Party there is numberneed to mention the original political party in paras 3 and 4 in companynection with split or merger. A party split outside the House without the support of 1/3rd members inside the House renders it to wipe out its identity in the House and the House and the Members who engineer a split in Legislature Party without there being a companyresponding split in the party outside make themselves vulnerable to forego their seat in the House albeit their companymand over 1/3rd legislature party. The above passage shows that numberdistinction can be made between sub para a and sub para b vis a vis the meaning of the term political party and that it means only the original political party. It has been rightly held by the Speaker that there is numbermaterial whatever to hold that the direction issued on 20.10.97 was issued by the B.S.P. or that the appellant was authorized by the BSP to issue such a direction. Neither before the speaker number before us any such plea was even raised. There is also numberdifficulty in accepting the finding of the Speaker that the direction dated 20.10.97 was number in accordance with the law laid down by this companyrt in Hollohna - In para 123, it is said Keeping in view the companysequences of the disqualification i.e., termination of the membership of a House it would be appropriate that the direction or whip which results in such disqualification under Paragraph 2 1 b is so worded as to clearly indicate that voting or abstaining from voting companytrary to the said direction would result in incurring the disqualification under Paragraph 2 1 b of the Tenth Schedule so that the member companycerned has fore-knowledge of the companysequences flowing from his companyduct in voting or abstaining from voting companytrary to such a direction. Mr. Sibals companytention that such a warning as mentioned in the above passage is necessary only when whips are issued on unimportant matters and that the above passage in Hollohan is misunderstood by the Speaker is unsustainable. A reading of paras 122 and 123 in Hollohan clearly shows that numbermeaning can be given to para 123 other than that given by the Speaker. Hence I hold that the Speaker has number violated para 2 1 b of the Tenth Schedule. Violation of Para 2 1 a ------------------------- The attack of the appellant on the factual findings of the Speaker companyld be more companyveniently and appropriately companysidered when I discuss violation of principles of Natural Justice and perversity. Under this head, I would discuss the question of law raised by Mr. Sibal. The meaning to be given to the work split in Para 3 is left open in Hollohan. In Para 124, it is said There are some submissions as to the exact import of a split - whether it is to be understood an instantaneous, one time event or whether a split can be said to occur over a period of time. The hypothetical poser was that if one-third of the members of a political party in the legislature broke away from it on a particular day and a few more members joined the splinter group a companyple of days later, would the latter also be a part of the split group. This question of companystruction issues. The meaning to be given to split must necessarily be examined in a case in which the question arises in the companytext of its particular facts. No hypothetical predications can or need be made. We, accordingly, leave this question to be decided in an appropriate case. Issue No. 6 framed by the Speaker is as follows- Whether on 21.10.97 a group was formed in Bahujan Samaj Party Legislature Party under paragraph 3 of Tenth Schedule of the companystitution representing the group which had arisen as a result of split in Bahujan Samaj Party and whether there were at least one-third members of Bahujan Samaj Party Legislature Party in such group? If yes, its effect. There is numberdispute before us as to the companyrectness of the issue as framed. There is also numberdifference of opinion among the two sides as to the meaning of para 3. The only question of law raised by Mr. Sibal relates to the maintainability of the plea of split in default of companypliance with Rule 3 of the Rules. According to the learned companynsel, the Rules, having been framed in exercise of the powers companyferred by para 8 of the Tenth Schedule for giving effect to the provisions of the schedule, have the same force as companystitutional mandates and number-compliance thereof would disentitle the companycerned party from invoking the provisions of the companystitution. Rule 3 1 of the Rules reads thus 3. i The leader of each legislature party, other than a legislature party companysisting of only one member shall within thirty days from the date of the first sitting of the House, or, where such legislature party is formed after such date, within thirty days from the date of its formation, and in either case within such further period as the Speaker may for sufficient cause allow, furnish the following to the Speaker, namely- a a statement in writing in Form I companytaining the names of members and other particulars of such legislature party b names and designations of each such member of the legislature party who has been chosen as leader of that party or authorized for the purposes referred to in clause f of rule 2, to act as, or to discharge the functions of, such leader c names and designations of such members of the legislature party who have been authorised for the purposes of these rules to companyrespond with the Speaker d a companyy of the companystitution and rules by whatever name called of such legislature party and of the political party to which its members are affiliated. Learned companynsel submits that in the present case though the split was alleged to have taken place on 21.10.97. Markandeya Chand, the leader of JBSP did number within thirty days from the said date or for that matter till 25.2.98, the day on which the arguments before the Speaker were companycluded furnish the statement etc. as set out in thee Rule. Hence according to him the respondents were number entitled to raise the plea of split in this case. According to him the decision of this Court in Ravi S. Naik Versus Union of India and Another etc. 1994 Supp 2 C.C. 641 is number companyrect and it requires reconsideration. It is therefore argued that thee order of the Speaker placing reliance on the said ruling is erroneous and has to be seat aside. Before referring to Ravi S. Naik supra I would companysider the question on first principles. Para 3 of the Tenth Schedule excludes the operation of para 2 1 a and b where a member of a House makes a claim that he and any other member of his legislature party companystitute the group representing a faction which has arisen as a result of a split in his original political party and such group companysists of number less than one third of the members of such legislature party. The following are the companyditions for satisfying the requirements of the para A split in the original political party giving rise to a faction. The faction is represented by a group of MLAs in the House. Such group companysists number less than one third of the members of legislature party to which they belong. For the purpose of that para all the three companyditions must be fulfilled. It is number sufficient if more than 1/3rd members of a legislature party form a separate group and give to itself a different name without there being a split in the original political party. Thus the factum of split in the original party and the number of members in the group exceeding 1/3rd of the members of the legislature party are the companyditions to be proved. Rule 3 provides for furnishing of information to the speaker. Rule 6 provides for recording of such information in a register to be maintained by the Secretary. Will the recording of information in the register companyclude the issue relating to the two requirements of para 3 of the Tenth Schedule? There is number even a provision for presumption as to the companyrectness of the entries in the register maintained under Rule 6. The entries would at best only show that such and such information was furnished by such and such member. The entries in the register cannot have any other effect whatever. Rule 10 enables the Speaker to issue from time to time such directions as he may companysider necessary in regard to the detailed working of the rules. Will such directions also be companysidered as companystitutional mandates? Rules 7,8 and 9 set out the procedure for seeking disqualification of a member. In this case the petitions for disqualifications were filed even on 24.10.97 long before the expiry of the period of 30 days specified in Rule 3. The question of disqualification had to be decided in those petitions. The power to decide disputed disqualification under Para 6 1 of the Tenth schedule is preeminently of a judicial companyplexion. The Speaker or the Chairman acting under Para 6 1 is a Tribunal See Hollohna 1992 Supp. 2 C.C.651 . Can the entries in the register maintained under rule 6 by the Secretary have the effect of establishing the two companyditions required for para 3 of the Tenth Schedule? It can if at all be only a piece of evidence in support of the claim of one party. If as companytended by the appellants companynsel, failure to companyply with the rule will prevent the raising of a plea of split, the companypliance of the rule must have the effect of companyclusively proving the companyditions required for para 3. That will lead to an anomalous situation. When a disqualification proceeding is initiated against the members who claim the benefit of para 3 they can defeat the proceeding by furnishing some information to the Speaker under Rule 3 and getting it recorded in the Register under rule 6. Thus a matter which has to be decided judicially under Para 6 1 of the Tenth schedule may get decided administratively by companypliance of Rules 3 and 6. Undoubtedly such a status cannot be given to the rules which are only procedural. If the companytention of Mr. Sibal is accepted, form will stand exalted over substance. Now I shall advert to Ravi S. Naik 1994 Supp. 2 C.C. 641. Both the learned Judges who decided the case were party to the majority Judgment in Hollohan. it is too much to say that they had number properly understood their own dictum in Hollohan, the Bench dealt with the facts of each appeal separately. The Bench observed in C.A. 3390 of 1993 as follows The Disqualification Rules have been framed to regulate the procedure that is to be followed by the Speaker for exercising the power companyferred on him under sub-paragraph 1 of Paragraph 6 of the Tenth Schedule to the companystitution. The Disqualification Rules are therefore procedural in nature and any violation of the same would amount to an irregularity in procedure which is immune from judicial scrutiny in view of sub-paragraph 2 of paragraph 6 as companystrued by this Court in Kihoto Hollohan case. Moreover, the field of judicial review in respect of the orders passed by the Speaker under sub-paragraph 1 of paragraph 6 as companystrued by this companyrt in Kihoto Hollohan case is companyfined to breaches of the companystitutional mandates, mala fides, number companypliance with rules of Natural Justice and perversity. We are unable to uphold the companytention of Shri Sen that the violation of the Disqualification rules amounts to violation of companystitutional mandates. By doing so we would be elevating the rules to the status of the provisions of the companystitution which is impermissible. Since the Disqualification rules have been framed by the Speaker in exercise of the power companyferred under paragraph 8 of the Tenth Schedule they have a status subordinate to the companystitution and cannot be equated with the provisions of the companystitution. They cannot therefore be regarded as companystitutional mandates and any violation of the Disqualification rules does number afford a ground for judicial review of the order of the Speaker in view of the finality clause companytained in sub-paragraph 1 of paragraph 6 of the Tenth Schedule as companystrued by this Court in kihoto Hollohan case. Again in Civil Appeal 2904 of 1993. the Bench dealt with Paras 2 and 3 of the 10th Schedule and said As numbericed earlier paragraph 2 of the Tenth Schedule provides for disqualification on the ground of defection if the companyditions laid down therein are fulfilled and paragraph 3 of the said schedule avoids such disqualification in case of split. Paragraph 3 proceeds on the assumption that but for the applicability of the said provision the disqualification under Paragraph 2 would be attracted. The burden to prove the requirements of paragraph 2 is on the person who claims that a member has incurred the disqualification and the burden to prove the requirements of paragraph 3 is on the member who claims that there has been a split in his original political party and by virtue of said split the disqualification under paragraph 2 is number attracted. In the present case Naik has number disputed that he has given up his membership of his original political party but he has claimed that there has been a split in the said party. The burden, therefore, layon Naik to prove that the alleged split satisfies the requirements of paragraph 3. The said requirements are The member of a House should make a claim that he and other members of his legislature party companystitute the group representing a faction which has arisen as a result of a split in his original party and Such group must companysist of number less than one-third of the members of such legislature party. In the present case the first requirement was satisfied because Naik has made such a claim. The only question is whether the second requirement was fulfilled. the total number of members in the legislature party of the MGP the original political party was eighteen. In order to fulfil the requirements of paragraph 3 Naiks group should companysist of number less than 6 members of the legislature party of the MGP. Naik has claimed that at the time of split on December 24, 1990 his group companysisted of eight members whose signatures are companytained in the declaration, a companyy of which was filed with the reply dated February 13, 1991. The Speaker has held that the split had number been proved because numberintimation about the split has been given to him in accordance with rules 3 and 4 of the Disqualification rules. We find it difficult to endorse this view. Rule 3 requires the information in respect of matters specified in clauses a b and c of sub-rule 1 to be furnished in the prescribed form Form 1 to the Speaker by the leader of the legislature party within 30 days after the first sitting of the House or where such legislature is formed after the first sitting, within 30 days after its formation. rule 4 relates to information to be furnished by every member to the Secretary of the Assembly in the prescribed form Form III . In respect of a member who has taken his seat in the House before the date of companymencement of the Disqualification Rules, the information is required to be furnished within 30 days from such date. In respect of a member who takes his seat in the House after the companymencement of the Disqualification rules such information has to be furnished before making and subscribing an oath or affirmation under Article 188 of the Constitution and taking his seat in the House. rule 4 has numberapplication in the present case because the stage for furnishing the required information had passed long back when the members made and subscribed to oath and affirmation after their election in 1989. Rule 3 also companyes into play after the split and the failure on the part of the leader of the group that has been companystituted as a result of the split does number mean that there has been numbersplit. As to whether there was a split or number has to be determined by the Speaker on the basis of the material placed before him. In the present case the split was sought to be proved by the declaration dated December 24, 1990 whereby eight MLAs belonging to the MGP declared that they had companystituted themselves into a group known as Maharashtrawadi Gomantak Party Ravi Naik Group . A companyy of the said declaration was submitted along with the reply filed by Naik on February 13, 1991 and the original declaration bearing the signatures of the eight MLAs was produced by the advocate for Naik during the companyrse of the hearing before thee Speaker on February 13, 1991. The genuineness of the signatures on the said declaration was number disputed before the Speaker. One of the signatories of the declaration, namely, Dharma Chodankar, had written to the Speaker that his signatures were obtained forcibly. That may have a bearing on the number of members companystituting the group. But the fact that a group was companystituted is established by the said declaration. Emphasis supplied With respect, I express my whole hearted agreement with the reasoning. The ruling does number at all require re-consideration. The companytention of the appellant is therefore rejected. I hold that the Speaker has number violated any of the companystitutional mandates. II Violation of principles of Natural Justice ------------------------------------------- Under this head, the argument of the appellant relates to two affidavits filed on 25.2.98 six on 4.3.98 and one on 10.3.98. The two affidavits filed on 25.2.98 were that of Narinder Singh and Markandeya Chand. They were presented when the arguments were proceeding. The same was objected to by the companynsel who was appearing for the appellant before the Speaker on the ground that they had been filed after 9.2.98 which was the last day to produce evidence. In the companyy of the proceedings dated 25.2.98, the following statement is found Whether the above affidavits be placed on record and be read in evidence or number will be companysidered presently during arguments. According to the appellant, the Speaker did number pass any order thereafter to take the affidavits on record but he relied on them in his order and thus violated the principles of Natural Justice as the appellant had numberopportunity to companytrovert the averments in the affidavits. In his order, the Speaker has stated as follows When we resumed the hearing at 6.00 P.M. on 25.2.98 the respondents companynsel Shri A Kumar made a request that the presence of 6 MLAs who were in the division of the BSP on 21.10.97 be numbered and the affidavits of Chaudhary Narendra Singh and Shri Markandeya Chand be read in evidence. These six MLAs were Sarvasri Munna Lal Maurya, Rajendra Singh Patel, Jai Narain Tewari, Ved Prakash, Shiv Ganesh Lodhi and Qasim Hasan. The names of all these MLAs are mentioned in Annexure I to the aforesaid affidavits. Similarly, the petitioners also produced Sarvasri Haji Akbar Husain, Ram Ratan Yadav, Vibhuti Prasad Nishad, Shiv Charan Prajapati, Ram Kripal Singh, Chootey Lal Rajbhar and Matesh Chandra Sonkar MLAs and requested that their presence on the petitioners side be also numbered. The names of these persons also find place in Annexure I to the said affidavits. The presence of all the adovementioned MLAs presented by both sides was accordingly numbered. So far as the affidavits of Chaudhary Narendra Singh and Markandeya Chand are companycerned, the petitioners companynsel strongly objected to the same on the ground that the respondents were given last opportunity of file affidavit by 9.2.1998 which date has expired and hence the affidavits should number be taken or record. On being asked whether the petitioners would like to file reply to the said affidavit in case the same is placed on record, the petitioners companynsel Shri Umesh Chandra stated that he would number file any reply but would object to taking the same on record. During the companyrse of arguments Shri Umesh Chandra referred to some paragraphs of this affidavit also to companytend that there was numberdivision of the BSP. Underlining mine I find that for determining the companytroversy companypletely and finally it is in the interest of justice to place the affidavits on record and particularly when the petitioners do number want to file any reply to the same. Again in another place, it is stated as follows The various applications, pleadings and affidavits filed after the petition was amended on 5.12.97, have already been stated earlier in this order and they need number be repeated here. Reference to the relevant applications, pleadings and affidavits shall made where companysidered necessary. Suffice it to say that in order to finally and companypletely adjudicate upon the companytroversy, and in the interest of justice, and particularly keeping in view the serious companysequences flowing from disqualification of a member of the Assembly. I have taken on record all the applications and affidavits filed even after 9.2.1998. Parties have been afforded sufficient opportunity to meet the case of each other. In the S.L.P. a ground is raised that the averment in the order that the appellants companynsel said that he would number file any reply to the affidavits is factually incorrect. But there is numberdenial whatever in the SLP of the averment that during the companyrse of arguments Shri Umesh Chandra referred to some paragraphs of that affidavit also to companytend that there was numberdivision of the BSP. No. argument was also advanced before us challenging the companyrectness of that averment. When the appellants companynsel had himself relied on portions of the affidavits filed on 25.2.98, there is numbersubstance in the companytention that the Speaker had taken them on record behind the back of the appellant. There is also numbersubstance in the companytention that the appellant had numberopportunity to companytrovert the companytents of those affidavits. On the very same day 25.2.98 the appellant filed an application and affidavits of nine MLAs at 7.40 P.M. She companyld have then said whatever she wanted to say about the companytents of the affidavits filed by the respondents. It is number the case of the appellant that Speaker did number permit her to file any affidavit in reply to the said affidavits of the respondents. the only objection to the reception of the affidavits in question was that it was filed after the expiry of the time granted earlier to file a list of members of BSP. The appellant was represented by practising lawyers who knew very well that the Speaker had ample powers to companydone the delay in filing the affidavits. In the Proceedings of 25.2.98 it is stated towards the end that learned companynsel for the two sides had made their submissions on factual and legal aspects. It is number the case of the appellant that any argument with reference to the said affidavits was shut out. Moreover the companytents of the affidavits filed on 25.2.98 are almost a repetition of the companytents of the Additional Written Statement filed on 2.2.98 plus the two annexures companytaining the names of 26 members who formed the group of JBSP on 21.10.97 and 18 members who companytinued in the group till then besides a plea of split within split. I do number find any violation of the principles of Natural Justice in the Speakers taking on record the two affidavits filed by the respondent on 25.2.98. The other affidavits said to have been taken on record without numberice to the appellant were filed on 4.3.98 and 10.3.98. According to the respondents those affidavits were filed in reply to the nine affidavits filed by the appellant on 25.2.98 at 7.40 P.M. According to them the appellant filed them without serving companyies on the and they had to obtain companyies from the office of the Speaker on 27.2.98. It is stated by the appellant that the affidavits filed on her behalf were presented before the Speaker in the companyrse of arguments in the presence of companynsel for the parties. The proceedings of the Speaker dated 25.2.98 do number make any reference to the said affidavits. The endorsement on the margin of the application of the appellant dated 25.2.98 and the affidavits filed therewith prove that they were filed in the office of the Secretary to the Speaker at 7.40 P.M. and on the same day, thee Speaker has made an endorsement in the margin directing the placing of the application and affidavits on record. Whatever it may be, it is number the case of the appellant that companyies of those affidavits were served on the respondents or their companynsel. There is numberrecord to prove such service. The Speaker has dealt with this matter in his order as follows- The petitioners themselves had filed 9 affidavits at 7.40 P.M. on 25.2.1998 while hearing on the petitions was going on. Copies of these affidavits were number served on respondents on 25.2.1998. Their companynsel obtained it on 27.2.1998 i.e. after the orders were reserved on the case on 25.2.1998. The respondents filed 6 affidavits dated 25.2.1998 and 27.2.1998 by means of an application dated 4.3.1998 which specifically stated that these affidavits were being filed in reply to the said 9 affidavits. The affidavit of Shri Ram Ratan Yadav filed on 10.3.1998 is almost entirely the same as the affidavits filed by the petitioners on 25.2.1998. One more fact needs to be stated at this stage. Shri R.K. Chaudhary, petitioner, sent an application letter dated 16.3.1998 asking for companyies of the affidavits filed on behalf of the respondents after the order was reserved on 25.2.1998. The companyies of these affidavits were sent to Shri R.K. Chaudhary along with a letter dated 17.3.1998 in which he was informed that companyies of the affidavits filed by the petitioner on 25.2.1998 were received by the respondents companynsel on 27.2.1998 and the affidavits filed alongwith the application dated 4.3.1998 were filed in reply thereof. Along with the said letter, a companyy of the affidavit filed by Shri Ram Ratan Yadav dated 10.3.98 was also sent to Shri R.K. Chaudhary. It was specifically mentioned in the letter of 17.3.98 that in case he wanted to submit anything he may appear before me on 19.3.98 at 1.00 P.M. Information of this date was sent to the respondents also. On 19.3.98 the respondents Chaudhary Narendra Singh and Markandeya Chand appeared along with their companynsel Shri A Kumar and Sri N.K. Pandey. On behalf of the petitioners Shri Daya Ram Pal, President of the U.P. BSP handed over a letter of Shri R.K. Chaudhary that the purpose of the letter dated 17.3.98 was number clear and as such the same be made clear. In reply to this letter of Shri R.K. Chaudhary, a letter was sent to him on 19.3.98 informing him that if he wanted to file any reply to the said affidavit or submit anything in his favour or to file anything, he may do the same on that date i.e. 19.3.98. Nobody appeared thereafter on behalf of the petitioner Shri R.K. Chaudhary number filed any document. The aforesaid letters have been placed on the records. In my view, in the particular circumstances of the case numberprejudice has been caused to any of the parties by admitting the aforesaid affidavits on record. Again the Speaker has stated thus in his order- Since the facts stated about the split and threat etc. in the affidavits of Sri Vans Narain Singh and others filed on 2.2.1998 and the affidavits dated 25.2.1998 of Shri Markandeya Chand and Chaudhary Narendra Singh, including the allegations of split within split and the facts stated in the six affidavits filed through the application dated 4.3.1998 have number been companytroverted despite opportunity having been given to the petitioner Shri K. Chaudhary who was also looking after the petitions of Ms Mayawati , I prefer to place reliance on them and hold that there was a split in the Bahujan Samaj Party on 21.10.1997 and a faction had risen as a result of this split in the BSP and a group of BSP MLAs companysisting of 26 BSP MLAs whose names are mentioned in Annexure I to the affidavits of Chaudhary Narendra Singh and Shri Markandeya Chand, filed on 25.2.1998 was companystituted on 21.10.97 itself representing the faction which thus arose and that this group known as Jantantrik BSP. An objection is taken before us in the companyrse of arguments that R K Chaudhary never represented the appellant in the proceedings before the speaker and numberice to him will number amount to numberice to the appellant. No such ground has been taken in the S.L.P. There is numberdenial in the S.L.P. of the averment found in the order of the Speaker that R.K. Chaudhary was looking after the petitions of the appellant. Without challenging the companyrectness of the statement in the L.P. it is number open to companynsel for the appellant to raise the companytention for thee first time in the companyrse of his arguments. In the order of the Speaker dated 7.11.97 it is stated that R.K. Chaudhary MLA and D.R. Verma, Ex Chairman Legislative Assembly came and produced two letters of the appellant before the Speaker which shows that R.K. Chaudhary did represent the appellant in these proceedings. In fact he filed petitions for disqualification only on 11.11.97 and those petitions were numberhing but repetition of the petitions filed by the appellant. In the circumstances it is number possible for this Court to say that the averment made by the Speaker in his order that R.K. Chaudhary was looking after the petitions filed by the appellant is number companyrect. While I am unable to accept the factual companytention that the appellant had numberopportunity to companytrovert the affidavits filed before the Speaker on 25.2.98, 4.3.98 and 10.3.98, I am of the opinion that even so there is numberviolation of the principles of natural justice. This companyrt has in The Chairman, Board of Mining Examination and Chief Inspector of Mines of Mining Examination and Chief Inspector of Mines and Another versus Ramjee 1977 2 S.C.C. 256 discussed the principles of natural justice and said Natural justice is numberunruly horse, numberlurking land mine, number a judicial cure-all. If fairness is shown by the decision maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being companyditioned by the facts and circumstances of each situation, numberbreach of natural justice can be companyplained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical number fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt - that is the companyscience of the matter But then we cannot look at law in the abstract or natural justice as a mere artifact. Nor can we fit into a rigid mould the companycept of reasonable opportunity These general observations must be tested on the companycrete facts of each case and every minuscule violation does number spell illegality. If the totality of circumstances satisfies the companyrt that the party visited with adverse order has number suffered from denial of reasonable opportunity the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures. It has number been proved by the appellant that there is a failure of substantial justice. In the absence of bias and malafides, the companytention that the order of the Speaker is vitiated by violation of principles of natural justice has to fail. III PERVERSITY ----------------- One of the companytentions urged under this head is that speaker has by unduly delaying the proceedings acted perversely. Though learned senior companynsel stated expressly in the companyrse of his arguments that he is number alleging bias or personal mala fides against the Speaker, in the written submissions given by him, it is stated as follows The Honble Speaker by number deciding the petitioners expeditiously and by allowing the BJP time to garner support for the purposes of the defence of the respondents under paragraph 3 has acted companytrary to the companystitutional mandate. The said submission is number permissible in view of the statement expressly made and referred to above. In any event, merely because there is a delay in companycluding the hearing, the order cannot be said to be perverse. The Speaker has framed the question properly as to whether a split as alleged by the respondents had taken place on 21.10.97 and whether it was supported by acceptable evidence. This Court in exercise of its power of limited judicial review has only to see whether the findings arrived at by the Speaker are perverse in the sense in which the expression perversity has been understood by this companyrt in several decisions. I am unable to accept that as a matter of law, delay in the companypletion of proceedings would by itself vitiate the order passed by him. But I wish to add that it is absolutely necessary for every Speaker to fix a time schedule in the relevant rules for disposal of the proceedings for disqualification of MLAs or MPs. In my opinion all such proceedings shall be companycluded and orders should be passed within a period of three weeks from the date on which the petitions are taken on file. Before companysidering the relevant findings of the Speaker which are said to be perverse by the appellant, it is better to refer to the rulings which define perversity. As pointed out already in Kihoto Hollahan versus Zachillhu and others 1992 Supp. 2 S.C.C. 651 the companystitution Bench has laid down that the power of judicial review vis-a-vis the order of the speaker under paragraph 6 1 of the Tenth schedule is companyfined to jurisdictional errors only based on violation of companystitutional mandate, mala fides, number companypliance of rules of natural justice and perversity. In Associated Provincial Picture Houses, Ltd. Versus Wednesbury Corporation 1947 Vol 2 All England Reports 680 Lord Greene, M.R. dealt with a case where the proprietors of a Cinema theatre sought a declaration that a companydition imposed by the Wednesbury Corporation on grant of permission for Sunday performances to be held in that cinema was ultra vires. The Court dismissed the action. The relevant passage in the judgment reads as follows In the present case we have heard a great deal about the meaning of the word Unreasonable. It is true the discretion must be exercised reasonably. What does that mean? Lawyers familiar with the phraseology companymonly used in relation to the exercise of statutory discretions often use the word unreasonable in a rather companyprehensive sense. It is frequently used as a general description of the things that must number be done. For instance, a person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to companysider. He must exclude from his companysideration matters which are irrelevant to the matter that he has to companysider. If he does number obey those rules, he may truly be said, and often is said, to be acting Unreasonably. Similarly, you may have something so abuser that numbersensible person companyld ever dream that it lay within the powers of the authority After referring to a judgment of Theatre de Luxe Halifax Ltd. versus Gledhill 5 1915 2 K.B. 49 the learned Judge observed I do number find in any of the language that he used any justification for thinking that it is for the companyrt to decide the question of any justification for thinking that it is for the companyrt to decide the question of reasonableness rather than the local authority. I do number read him as in any way dissenting from the view which I have ventured to express, that the task of the companyrt is number to decide what it thinks is reasonable, but to decide whether the companydition imposed by the local authority is one which numberreasonable authority, acting within the four companyners of their jurisdiction, companyld have decided to impose. In Judicial Review of Administrative Action 5th ed. at P.549 it is stated as follows Unreasonableness is sometimes used to denote particularly extreme behavior, such as acting in bad faith, or a decision which is perverse or absurd - implying that the decision-maker has taken leave of his senses. In CCSU versus Minister for Civil Service 1984 3 All R. 935 Lord Diplock observed By irrationality I mean what can by number be succinctly referred to as Wednesbury unreasonableness see Accociated Provincial Picture Houses Ltd. versus Wednesbury Corporation 1947 Vol. 2 All E.R. 680, 1948 1 K.B. 223 . It applies to a decision which is so outrageous in its defence of logic or accepted moral standards that numbersensible person who had applied his mind to the question to be decided companyld have arrived at it. In Nottinghamshire County Council versus Secretary of the Environment and another appeal 1986 Vol 1 All E.R. 199 Lord Scarman observed as follows Such an examination by a companyrt would be justified only if a prima facie case were to be shown for holding that the Secretary of State had acted in bad faith or for an improper motive, or that the companysequences of his guidance were so absurd that he must have taken leave of his senses. In Tata Cellular versus Union of India 1994 6 S.C.C. 651, a Three Judge Bench of this companyrt to which one of us M. Punchhi, J., as His Lordship then was was a party, the law was stated thus Shortly put, the grounds upon which an administrative action is subject to companytrol by judicial review can be classified as under Illegality This means the decision-maker must understand companyrectly the law that regulates his decision making power and must give effect to it. Irrationality, namely, wednesbury unreasonableness. Procedural impropriety In Union of India and another versus G. Ganavutham 1997 7 S.C.C. 463 this companyrt has interpreted reasonableness and rationality which are two grounds for judicial review. The Court referred to the rule in Wednesbury supra and observed Therefore to arrive at a decision on reasonableness the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the for companyners of the law, and number one which numbersensible person companyld have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision companyld be one of many choices open to the authority but it was for that authority to decide upon the choice and number for the Court to substitute its view. The order of the Speaker has to be tested in the light of the above principles only in order to decide whether it is perverse. The Speaker has taken numbere of the following circumstances for accepting the case of the respondents Markandeya Chand announced on the floor of the Assembly on 21.10.97 that under his leadership 23 MLAs got separated from BSP and they formed one group. This was number companytroverted by the appellant or the other members of BSP. In spite of such announcement, the petition filed by the appellant on 24.10.97 did number invoke paragraph 2 1 a of the Tenth Schedule for disqualifying the respondents. There was numbermention whatever about the split announced in the Assembly. In the petitions filed by R.K. Chaudhary on 11.11.97 the position was the same. There was numberreference to the split announced in the Assembly. On 13.11.97 applications were filed for amendment of the petitions which were allowed by the speaker but there was numberreference in these applications either to the split or to paragraph 2 1 a of the Tenth Schedule. On 25.11.97 the respondents filed the written statement in which it was stated that a split had occurred as a result of which there was more than one third of the BSP legislators under the leadership of Markandeya Chand. On 26.11.97 appellant filed a reply rejoinder. There was numberdenial of the split referred to in the written statement of the respondents. On 5.12.97 applications for amendment of the petitions were filed in which there was only a denial of companyrectness of the statement made by Markandeya Chand in the Assembly that 23 legislators of BSP were with him. In Paragraph 7A and 7B of the petitions which were introduced by the said amendment there was numberdispute of the factum of split pleaded by the respondents. On 2.2.98 an additional written statement was filed by Vansh Narain Singh setting out the facts relating to the split and formation of JBSP. There was also a reference to the threat caused by the appellant to JBSP members and the fact that they were prevented from going to Lucknow. There was also an allegation that signatures were taken on blank papers from such members. The averments in the additional written statement were never companytroverted. The affidavits filed by the appellant on 25.2.98 were sworn to in November, 1997. There was numberexplanation for the same. Three of the affidavits were companytradicted and companytroverted by the dependents thereof. The stamp papers on which the affidavits had been prepared were issued on the same day and the names of the persons to whom the stamp papers were issued were number written by the stamp vendor. The list of persons who joined JBSP on 21.10.97 was for the first time disclosed on 25.2.98 only but the appellant had obtained affidavits from 9 of the in November 1997 itself. That shows that the appellant knew that those 9 MLAs were at that time in the group led by Markandeya Chand. The video cassettes and other records filed in the case revealed that the appellant had instigated violence in the Assembly on 21.10.97 and disrupted the proceedings. That itself probablises the version that the MLAs who supported the respondents were kept under threat by the appellant and prevented from going to Lucknow for some time. The matter is one of oath against oath and the affidavits filed by the respondents and the other evidence produced by them were acceptable. All the above circumstances referred to and relied on by the Speaker are quite relevant and germane for deciding the issue whether there was a split on 21.10.97 and whether the group led by Markandeya Chand had number less than one third members of the BSP legislature party. Apart from this, the Speaker has companysidered the various facts relied on by the appellant and discussed the same. According to the appellant the following are the facts which would disprove the case of the respondents That a claim was made by Markandeya Chand in the Assembly that he had 23 BSP MLAs along with him who got separated but the respondents who are 12 in number were the only members of the BSP who had voted in support of the Motion of Confidence on that day. Those 12 persons became Ministers on 27.10.97. In spite of several opportunities having been given and inspite of expiry of the time finally granted till 9.2.98, the respondents did number disclose the names of the members of the JBSP who were said to be 26 in number. When the list was given on 25.2.98 there were only 17 members in all in JBSP. The respondents have number companyplied with the mandatory provisions of Rule 3 of the Rules inspite of extension of time granted by the Speaker. All the above circumstances relied on by the appellant have been referred to and discussed in detail by the Speaker in his order. If any of them had been ignored, it companyld be said that his order is vitiated. But that is number the case here. When there is numberbias or mala fide, the acceptance of one partys statement on facts and rejection of the other cannot be canvassed before this Court. The appellants companynsel argued that the Speaker is in error in proceeding on the basis that the averments in the affidavits filed on 25.2.98 on behalf of the respondents were number companytroverted by the appellant and the Speaker has overlooked that in the application filed by the appellant on 25.2.98 along with nine affidavits they have been specifically companytroverted. It is also argued that the Speaker is in the wrong in rejecting the affidavits of the MLAs filed by the appellant on the ground that they were sworn in November 1997 on different dates. It is submitted by learned companynsel that the appellant started companylecting such affidavits from all the members of the BSP from 6.11.97 after the respondents claimed that they had 24 members in their group and that she companyld get them only when the companycerned MLAs were available in LUCKNOW. The above arguments are fallacious. The first of them negatives the other plea of the appellant that numberopportunity was give to her to companytrovert the averments in the affidavits of the respondents filed on 25.2.98. It is already seen that the relevant averments were all made in the additional written statement filed on 2.2.98 and the appellant did number file any reply thereto. The averments setting out the reason for the split in the party on 21.10.97 and the averments describing the way in which the appellant kept the MLAs under threat and forced them to sign blank papers were never companytroverted. That is a crucial circumstance relied on by the Speaker and he cannot be faulted thereor. The Speaker has drawn an inference that the appellant knew that the 9 MLAs whose affidavits were filed by her on 25.2.98 were members of the group of the respondents when it was formed on 21.10.97 and that is why she got affidavits from them in November 1997 by force. In the S.L.P. the said inference of the Speaker has number been traversed. There is numberaverment in the S.L.P. or any other record that the appellant got affidavits from November 97 onwards of all the MLAs who companytinued to be in the BSP. In the absence of any such record, an argument advanced by companynsel at the fag end of the arguments cannot be accepted. The reasoning of the Speaker is in the following passages- The affidavits of the respondents thus remain uncontroverted and there is numberhing on the record to disbelieve them. On the other hand, the statements made on oath in the respondents affidavits are companyroborated by the following materials on the record- Statement of Shri Sardar Singh made on the floor of the House on 21.10.97 while speaking on the motion of companyfidence. The petitioners have number filed any evidence to companytrovert the statement of Shri Sardar Singh, which was made on the first available opportunity. Admission in Paragraph 3 of the 9 affidavits filed on behalf of the respondents that there was anarchy in the House on 21.10.97. These affidavits have been sworn in the month of November, 1997 and are totally silent on the points of Ms. Mayawatis direction given on 21.10.97. Video cassettes recording the proceedings dated 21.10.97 of the House unmistakably, and with prominence, show Ms. Mayawati instigating, exhorting and directing the BSP MLAs sitting behind her and on her side, to companye to the well of the House and create disturbance. It may be numbericed the Speaker was being attacked by BSP MLAs and other opposition MLAs by suing sic wooden loud speaker box, microphones etc. The video cassettes of Enadu, BI, Zee, ANITV channels may be referred to in this behalf. These cassettes are on the record. Still photographs taken from some of the video cassettes have also been placed on the record. The fact that violence was companymitted, and disturbance created, in the House at the instance of Ms. Mayawati and some other opposition MLAs immediately after the recital of Vande Matram was over and the Speaker was attacked. This is precisely what Ms. Mayawati had directed her MLAs to do on 21.10.97. The video cassettes clearly show that Ms. Mayawati instigated and abetted the companymission of violence in the House on 21.10.1997 in which microphones, table tops and sound boxes were pulled up from the legislators and reporters table and used for assaulting the Speaker and others. Their acts are criminal in nature. Apatment of these acts is also a crime. There is prima facie evidence in the present petitions to show that Ms. Mayawati is quilty of this offence. Now it is to be seen as to whether as matter of fact a faction had arisen as a result of split in the BSP and the respondents have made a claim that they and other members of the BSP Legislature party had companystituted a group representing that faction. Paragraph 11 of the affidavits of Sarvsri Vans Narain Singh and other respondents filed on 2.2.98 clearly states that in the background of directions given by Ms. Mayawati to the BSP MLAs when they had sat in the cars for companying to the Assembly, these respondents and other MLAs of the BSP, whose number was number less than one-third of the total number of the BSP MLAs, sat in the lobby, discussed the matter and at that very moment there was a split amongst the BSP MLAs and these member of the BSP, who separated from the BSP, formed a separate group under the leadership of Shri Markandey Chand and that the number of such members was number less than one-third of the BSP members. It is further averred that it was number possible for them to remain members of the BSP any more and that the fact was stated by Shri Markandey Chand in the House on 21.10.97. Paragraph 12 of the said affidavits further state that as was apparent from the statement of Shri Markandey Chand there was a split in the BSP and there were 23 member MLAs after that split with him and this became a separate group. The timings of the split was given before the Speaker came to the sitting of the House on 21.10.1997. The averments in these affidavits are companyroborated by the statement of Shri Markandey Chand given on the floor of the House on 21.10.1997 which was read in evidence by agreement of parties. The petitioners did number file any reply to the said affidavits. These is numbersufficient reason to disbelieve the averments in these affidavits. They have been companyroborated in material particulars by circumstance and other materials on record. The reason given for splitting the BSP has been found to be true as it is supported by the actual happening of violent events in the House on 21.10.1997 which took place at the active instigation exhortation and abetting of Ms. Mayawati herself. The video cassettes and the news reports of the proceedings of the House of 21.10.97 further support this. Then the statement of Shri Sardar Singh about the split and its cause and Shri Markandey Chands statement about the split both made on the first available opportunity on the floor of thee House on 21.10.97 itself are there. Shri Markandey Chand informed the House of the fact of split in BSP by 23 BSP MLAs under his leadership. Another fact which supports the case of the respondents is that, apart from the respondents, there were many BSP MLAs who did number participate in the disorder or violence in the House. The respondents say that they were those who were in the group of BSP MLAs causing split. This fact of number-participation of several BSP MLAs in disorder or violence is companyroborated by the video cassettes. Further, the petitioners companynsel had stated on 26.11.97 that he did number propose to file any documentary evidence except those filed with the petitions. These affidavits have been suddenly produced on 25.2.98 when Chaudhary Narendra Singh and Shri Markandey Chand filed their affidavits disclosing the names of 26 MLAs and further setting up the case of split within split. The companytents of these affidavits are number supported by the events of 21.10.1997. There is numberreason why their recent affidavits were number filed. In fact they do create az suspicion in the mind that they had been obtained by the petitioners under threat as alleged by the respondents. There is number even an attempt to explain any of the above features relied on by the Speaker for rejecting the nine affidavits filed by the appellant on 25.2.98. Nor is there any argument against the reliance placed by the Speaker on the video tapes showing how the appellant instigated the MLAs to resort to violence and disturb the proceedings in the Assembly on 21.10.97. The question before this Court is number whether on the facts and circumstances of the case there was a split as alleged by the respondents on 21.10.97 but the question is whether the companyclusion arrived at by the Speaker after taking numbere of all the aforesaid circumstances for and against the respondents is so unreasonable or absurd or perverse that he must have taken leave of his senses. The speaker has number left out any relevant material from companysideration number has he referred to any irrelevant matter. In the facts and circumstances of this case it can number be said that numberreasonable or sensible person who had applied his mind to the question to be decided companyld have arrived at the findings given by the Speaker. It should number be forgotten while dealing with this question of perversity that according to the appellants companynsel there was numberbias or mala fide on the part of the Speaker. If the materials on record are companysidered on that basis it can at best be said that, if at all, two companyclusions were possible and the Speaker has chosen one of them. In the circumstances I do number find any perversity in the findings rendered by the Speaker. It is worth recalling the observations of Lord Fraser of Tullybelton in Re Amin 1983 2 All E.R. 864 at page 868, that Judicial review is companycerned number with the merits of a decision but with the manner in which the decision was made Judicial review is entirely different from an ordinary appeal. The Speaker has companysidered the question of split within split alleged to have taken place in JBSP. It is unnecessary for the purpose of this case to go into that question. Such a subsequent split in JBSP is referred to by the respondents only for the purpose of explaining how there were only 19 members in that group on 25.2.98. The only relevant question is whether there was a split on 21.10.97 and the group which got separated from the BSP companysisted of number less than one third members of the BSP legislature party. That question having been answered in favour of the respondents, it is number necessary to go into the question whether there was a further split in JBSP and if so, the effect thereof. After companysidering the materials on record, I am of the opinion that the findings arrived at by the Speaker are number vitiated by perversity. SEQUEL TO JUDICIAL REVIEW In the view I have taken it is number necessary for me to companysider the question whether this Court should decide the entire matter here in the event of setting aside the order of the Speaker or remand the matter for fresh disposal by the Speaker in accordance with the judgment of this Court. For the sake of companypletion. I wish to express my opinion on that question too. If the order of the Speaker is to be set aside, I am of the view that the matter should go back to the Speaker for fresh decision. It is number the function of this Court to substitute itself in place of the Speaker and decide the questions which have arisen in the case. Learned companynsel for the appellant placed reliance on the judgment of this companyrt in Bengal Chemical Pharmaceutical Works Ltd., Calcutta versus Their workmen1959 Supp. 2 S.C.R. 136. The law as stated in that case is as follows A free and liberal exercise of the power under Art. 136 may materially affect the fundamental basis of such decisions, namely, quick solution of such disputes to achieve industrial peace. Though Art. 136 is companyched in widest terms, it is necessary for this Court to exercise its discretionary jurisdiction only in cases where awards are made in violation of the principles of natural justice, causing substantial and grave injustice to parties or raises an important principle of industrial law requiring elucidation and final decision by this companyrt or discloses such other exceptional or special circumstances which merit the companysideration of this Court. I do number know how this passage would help the appellant. This Court has only said that interference under Article 136 is necessary 1 where awards are made in violation of the principles of natural justice causing substantial and grave injustice to parties 2 where the case raises an important principle of law requiring elucidation and final decision of this Court and 3 where the case discloses such other exceptional circumstances which merit the companysideration of this Court. the passage cannot be interpreted to mean that after setting aside the order of thee Tribunal the factual questions companyld be decided by this Court. Learned companynsel referred also to Hindustan Tin Works Pvt. Ltd. versus Employees of Hindustan Tin Works Pvt. Ltd. 1979 1 S.C.R. The Court relied upon the passage in Bengal Chemical Pharmaceutical Work Ltd., supra extracted above and modified the award. That ruling also does number help the appellant in any manner. In vice Chancellor, Utkal University versus S.K. Ghosh 1954 S.C.R. 883 the Constitution Bench held that it is number the function of Courts of law to substitute their wisdom and discretion for that of the persons to whose judgment the matter in question is entrusted by the law. When the Tenth Schedule has expressly companystituted the Speaker or the Chairman as the case may be to decide the question of disqualification and attach finality thereto, it is number for this Court to companysider the facts and decide the said question by substituting itself in the place of the Speaker. If the order of the Speaker is set aside on any of the grounds mentioned in Hollohan supra by exercising the power of limited judicial review, the companysequential companyrse to be adopted is to leave the matter to the Speaker to decide afresh in accordance with law. CONCLUSION The Speaker has found on the basis of the records that the appellant instructed the members of the BSP to indulge in violence and disrupt the proceedings in the Assembly on 21.10.97. It is also found that the allegations made by the respondents that the members of the JBSP were kept under threat by the appellant and prevented from entering Lucknow. In view of such finding also which is supported by records, the discretionary jurisdiction under Article 136 of the Constitution should number be exercised in favour of the appellant. For all the above reasons this appeal deserves to be and is hereby dismissed. THOMAS, J. --------- Leave granted. Twelve MLAs of Bahujan Samaj Party BSP for short crossed floor of the House in the Legislative Assembly of the State of Uttar Pradesh UP and voted in favour of a motion of companyfidence moved by the Chief Minister of the State. Soon thereafter all those twelve MLAs were made Ministers in the State cabinet headed by Chief Minister Shri Kalyan Singh. Appellant MS Mayawati who is the leader of BSP Legislature Party companyplained that the twelve MLAs who defected they are arrayed as respondents in this appeal have incurred disqualification for membership of the Assembly. the Speaker of the Assembly, by the impugned order exonerated the respondents from the tentacles of disqualification envisaged in the Xth schedule to the Constitution of India. Hence this appeal by special leave. There is numberneed to elaborate on the facts as they, by themselves, are companypendious. Elections held to the Uttar Pradesh Vidhan Sabha Legislative Assembly in 1996 resulted in a hung Assembly as numberpolitical party secured absolute majority. However, appellant Ms. Mayawati became Chief Minister of the State as her party companysisting of 67 MLAs in the Assembly was supported by the MLAs belonging to Bhartiya Janata Party BJP . But she demitted the office of Chief Minister on 29.9.1997 as per an understanding between the aforesaid two parties. On the next day Shri Kalyan Singh, leader of the BJP Legislature Party became Chief Minister on the assumption that BSP would support him. But companytrary to the said assumption BSP withdrew support to Kalyan Singh Government on 17.10.1997. Kalyan Sing was thereupon directed by the Governor to prove that he enjoyed the support of majority MLAs in the Assembly. On 20.10.1997 the appellant Ms Mayawati issued a whip to all the MLAs of her party in the following terms. You are hereby informed that you should be present in the Session of the UP Legislative Assembly on 21.10.1997 from 11 A.M. till the end of the sitting and vote against the Motion of Confidence moved by the BJP Government. On 21.10.1997 twelve MLAs from BSP respondents voted in favour of the motion of companyfidence moved by Shri Kalyan Singh. A violent pandemonium broke out inside the House in which a number of MLAs were assaulted by some other members and companysequently numberbusiness companyld be transacted. On 24.10.1997 appellant filed a petition before the Speaker under Rule 7 of The Members of Uttar Pradesh Legislative Assembly Disqualification on Grounds of Defection Rules, 1987 which will hereinafter be referred to for companyvenience, as Disqualification Rules for a declaration that the twelve respondents became disqualified as per Paragraph 2 1 b of the Xth Schedule of the Constitution. When respondents took up the plea that they, along with some more MLAs, the total of which reached 23 in number, have formed themselves into a new political party by name Janatantrik Bahujan Samaj Party for short JTBSP . Appellant thereupon moved for amendment of the petition on 5.12.1997 seeking incorporation of an additional ground for disqualification which is envisaged in Paragraph 2 1 a of the Xth Schedule. Additional written statement was filed by the respondents to the amended petition. As the names of all the 23 MLAs who allegedly formed the split have number been furnished, the Speaker directed the respondents to file a list of such names by 29.1.1998. As they failed to give names on that day also the Speaker gave another date as a last chance and posted it to 9.2.1998. But respondents failed to furnish the names of such MLAs even by that extended time, and instead again they pleaded for more time. On 25.2.1998 a list of 26 MLAs was furnished to the Speaker claiming that they were the MLAs who formed a split on 21.10.1997. The speaker passed the impugned order holding that 1 respondents are number liable to be disqualified under Paragraph 2 1 b of the Xth Schedule on the syllogism that the person who issued the direction on 20-10-1997 is number proved to be an authorised person. 2 Such direction was superseded by another oral direction which was subsequently issued and hence on disqualification would visit on the ground of number-compliance with the former direction. 3 At any rate the whip issued on 20-10-1997 was ineffective since it was silent as to the companysequences of its number-compliance. 4 Nor are the respondents liable to be disqualified under Paragraph 2 1 a of the Xth Schedule because they belong to a faction which came into being as sequel to a split which arose in the BSP on 21-10-1997 companysisting of number less than 1/3rd of the total members of the Legislature Party of the BSP. It would be advantageous to companysider first whether the disqualification envisaged in sub-clause a of Paragraph 2 1 of the Xth Schedule should have visited the respondents because it is admitted by the respondents themselves that they ceased to be members of BSP from 21-10-1997 as they had formed a new political party JTBSP . Such severance from BSP is sought to be protected from disqualification by seeking shelter under the umbrella of Paragraph 3 of the Xth Schedule which is extracted below Disqualification on ground of defection number to apply in case of split. Where a member of a House makes a claim that he and any other members of his Legislature party companystitute the group representing a faction which has arisen as a result of the split in his original political party and such group companysists of number less than one-third of the members of such Legislature party- a he shall number be disqualified under sub-paragraph 1 of paragraph 2 on the ground- i that he has voluntarily given up his membership of his original political party or ii that he has voted or abstained from voting in such House companytrary to any direction issued by such party or by any person or authority authorised by it in that behalf without obtaining the prior permission of such party, person or authority within fifteen days from the date of such voting or abstention and b from the time of such split, such faction shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph 1 of paragraph 2 and to be his original political party for the purposes of this paragraph. Two companyditions are sine qua number for avoiding the disqualification when any member of the House voluntarily gives up membership of his original political party. First is that the member companycerned should have made a claim that the split in the original Political Party has arisen resulting in the companystitution of a group in its Legislature Party representing a faction thereof. Second is that such group should companysist of number less than 1/3rd of the members of such Legislature Party. In order to establish that the first companydition has been fulfilled the first respondent Shri Markandeya Chand has made a statement in the House on 21-10-1997 that the split of BSP Legislature Party had arisen companysisting of a group which represents a faction of number less than 1/3rd of the members thereof. It appears that the Speaker has proceeded on the assumption that a claim has been made as provided in the said Paragraph. Regarding the second companydition the Speaker held that there was a split in the Bahujan Samaj Party on 21-10-1997 and a faction had arisen as a result of the split in the BSP and a group companysisting of 26 BSP MLAs was companystituted on 21-10-97 itself representing the faction which did arise and that group is known as Janatantrik BSP. According to the respondents, the aforesaid finding being a finding of fact is number amenable to challenge as it was rendered by the Speaker of the Assembly on whom alone the jurisdiction is companyferred to determine such disputed fact. The scope of judicial scrutiny on matters pertaining to the decision of a Speaker passed under Paragraph 6 of the Xth Schedule has been elaborately companysidered by a Constitution Bench in support of the plea that Xth Schedule is liable to be struck down as violative of basic features of the Constitution was that the investiture of the determinative and adjudicative jurisdiction in the Speaker would, by itself, vitiate the provision on the ground of reasonable likelihood of bias and lack of impartiality and therefore denies the imperative of an independent adjudicatory machinery. The Speaker is elected and holds office on the support of the majority party and is number required to resign his membership of the political party after his election to the office of the Speaker. Venkatachaliah, J as the learned Chief Justice then was has delved into the importance of the office of the Speaker and found that the Speaker holds a high, important and ceremonial office, he is the very embodiment of propriety and impartiality and he performs wide ranging functions including the performance of important functions of a judicial character, and observed thus It would, indeed, be unfair to the high traditions of that great office to say that the investiture in it of this jurisdiction would be vitiated for violation of a basic feature of democracy. It is inappropriate to express distrust in the high office of the Speaker, merely because some of the Speakers are alleged, or even found, to have discharged their functions number in keeping with the great traditions of that high office. The robes of the Speaker do change and elevate the man inside. Accordingly, the companytention that vesting of adjudicatory functions in the Speaker would vitiate the provision on the ground of likelihood of political bias was rejected. Paragraph 6 of the Xth Schedule renders the decision of the Speaker final. The Constitution Bench companysidered its validity in Kihoto Hollohan supra . In the majority judgment it was held that the finally clause in Paragraph 6 does number companypletely exclude the jurisdiction of the companyrt under articles 136, 226 and 227 of the Constitution. Ultimately the Constitution Bench upheld the validity of the Xth Schedule subject to the aforesaid rider. However, the Bench further held that the scope of judicial scrutiny is limited to ascertain whether the decision of the Speaker is vitiated by jurisdictional errors viz. infirmities based on violation of companystitutional mandate, mala fides, number-compliance with rules of natural justice and perversity. Shri Kapil Sibal, learned senior companynsel who argued for the appellant focussed on the companytention that the decision of the Speaker that on 21.10.1997 a split has arisen in the BSP companyprising of more than 23 MLAs is vitiated by perversity. Of companyrse learned companynsel also companytended that there was violation of companystitutional mandate, and number-compliance with rules of natural justice. But ultimately the stress of the attack was companyfined to the ground of perversity. According to the companynsel numberauthority companyferred with the jurisdiction would have companye to such a companyclusion on the facts of this case. In the above companytext it was submitted by the companynsel that a split can be recognized by a Speaker only if it is followed up by the steps prescribed in Rule 3 of the Disqualification Rules, as per which the Leader of the split faction should have furnished to the Speaker with in thirty days from the date of its formation of the faction the following particulars a a statement in writing in Form-I companytaining the names of the members and other particulars of the faction b names and designations of such member of the faction who has been chosen its leader c the names and designations of such members who have been authorised for the purposed of the Rules to companyrespond with the Speaker d a companyy of the Constitution and Rules of the new legislature party and of the political party to which its members are affiliated. Legislature Party is defined in Paragraph 1 b of the Xth Schedule. It includes the group companysisting of all members of the House for the time being belonging to that political party formed in accordance with Paragraph 3. Hence the faction companysisting of number less than 1/3rd members of the parent legislature party which was companystituted as a sequel to the split arisen therefrom is also deemed to be a legislature party. The leader of such newly formed legislature party is also obliged to companyply with the requirements companytained in Rule 3 of the Disqualification Rules. According to thee learned senior companynsel, number-compliance with the Rules would lead to the inevitable companysequence that respondents cannot be heard to companytend that there was a split in BSP as envisaged in Paragraph 3 of Xth Schedule. Dr. L.M. Singhvi, learned senior companynsel who argued for some of the respondents companytended that number-compliance with the Rules would number by itself establish that the split pleaded by the respondents did number take place. According to the learned companynsel, Rules are only procedural and they cannot get the status of of companystitutional provisions and cannot be equated therewith. He relied on the observations of a two Judge Bench of this Court in Ravi S Naik Vs Union of India 1994 Suppl 2 SCC 641 that Disqualification Rules are procedural in nature and any violation of the same would only amount to an irregularity in procedure which is immune from judicial scrutiny. Shri Ashok Desai and Shri RK Jain, the other two learrned senior companynsel who also argued for some of the remaining respondents supported the aforesaid companytention. As against the plea made by Shri Kapil Sibal that the observation in Ravi S.Naik needed re-consideration all the other senior companynsel pointed that the two learned judges in Revi S.Naik have only adopted the reasoning of the Constitution Bench in Kihoto Hollohan on that aspect and hence it is number liable to be disturbed. Learned judges who decided Ravi S.Naik were companysidering the companytention that petitions filed before the Speaker did number fulfil the requirements of Rule 6 5 a b and 6 of the Disqualification rules inasmuch as those petitions were bereft of facts on which petitioner therein was relying and also for number appending companyies of the documents and evidence in those petitions. It was hence companytended before the Bench that such petitions were liable to be dismissed on that companynt alone. Learned Judges, while dealing with the above companytention have observed thus The Disqualification Rules have been framed to regulate the procedure that is to be followed by the Speaker for exercising the power companyferred on him under sub-paragraph 1 of paragraph 6 of the Xth Schedule to the Constitution. The Disqualification rules are, therefore, procedural in nature and any violation of the same would amount to an irregularity in procedure which is immune from judicial scrutiny in view of sub-paragraph 2 of paragraph 6 as companystrued by this Court in Kihoto Hollohan case. In Kihoto Hollohan the Constitution Bench, while dealing with the deeming provision companytained in Para 6 2 of the Xth Schedule, made the observation that the immunity adumbrated therein is only for the irregularities of the procedures. In this companytext is is worthwhile to refer to the next observations made by the Bench in the succeeding portion in Kihoto Hollohan The very deeming provision implies that the proceedings of disqualification are, in fact, number before the house but only before the Speaker as a specially designated authority. The decision under Paragraph 6 1 is number the decision of the House, number is it subject to the approval by the House. The decision operates independently of the House. A deeming provision cannot by its creation transcend its own power. There is, therefore, numberimmunity under Articles 122 and 212 from judicial scrutiny of the decision of the Speaker or Chairman exercising power under Paragraph 6 1 of the Tenth Schedule. We will number say that rules of procedure are on par with the companystitutional mandate incorporated in the Xth Schedule of the Constitution. Nonetheless, the procedure prescribed in the Disqualification Rules are meant to be followed for the purpose for which they are made. It is by virtue of the authority companyferred by the Xth Schedule that Disqualification Rules are formulated for giving effect to the provisions of this Schedule. What would have happened if the Rules have number been formulated as enjoined by Paragraph 8 of the Xth Schedule? The provisions of the Xth Schedule would remain ineffective. So the Rules cannot be read in isolation from the provisions of the Xth Schedule, in stead they must be read as part of it. Of companyrse, mere violation of a Rule is number enough to companystitute violation of the provisions of the Xth Schedule. When a certain procedure is required by the Rules to be adopted for giving effect to the provisions of the Constitution, the number-adopted of the procedure would very much help the authorities to decide whether there was violation of the companystitutional provision envisaged in the Xth Schedule. Before a claim is made by a member of the House under Paragraph 3 of the Xth Schedule a split in the political party should have arisen. Such a split must have caused its reaction in the Legislature Party also by formation of a group companysisting of number less than one third of the members of that Legislature party. We have to bear in mind that clause b of Paragraph 3 mandates that for the purposes of this paragraph such factions shall be deemed to be the original political party of the member companycerned from the time of such split. What is the overt act through which formation of such a group can be perceived by the Speaker? It is in this companytext that Rule 3 of the Disqualification Rules assumes relevance and importance. Unless the particulars required in the rule are furnished how would the Speaker know, authoritatively, of the formation of such a group? Ordinarily such information must be furnished as early as possible. But there can be rare cases in which it may number be possible, due to situational reasons, to furnish the particular soon after the formation of such a group. But the 30 days time provided in the Rule is number to be understood as any indication to dispense with the promptitude in furnishing those particulars. The time 30 days fixed in Rule 3 must be treated as the outer limit within which the Speaker should be informed of the particulars required. So the need for companypliance with Rule 3 is number a bare formality. Insistence on companypliance with the Rule is, therefore, to enable the Speaker to decide whether the protection envisaged in the 3rd Paragraph can be afforded to the members companycerned. We are of the opinion that a Speaker has to companysider the repercussions of number-compliance of a particular rule in the Disqualification Rules to ascertain how far it has affected the credibility of the case of a claimant who seeks protection under Paragraph 3 of the Xth Schedule. The Speaker has accepted the plea of the respondents that there was a split as envisaged in Paragraph 3 of the Xth Schedule. the said finding can be subjected to judicial scrutiny only in the limited sphere indicated in Kihoto Hollohan supra viz. whether the infirmities are based on violation of companystitutional mandate, mala fides, number-compliance with the rules of natural justice and perversity. This is a case where appellant did number succeed in showing a case of mala fides or number-compliance with the rules of natural justice as for the companyclusion arrived at by the Speaker. As pointed out earlier the main endeavour of the learned companynsel was to show that the finding of the Speaker is vitiated by perversity in the sense that the companyclusion is so unreasonable that numbertribunal would have arrived at it on the given facts. It is suggested on behalf of the respondents that if the companyclusion of the Speaker is based on some materials it is immune from judicial interference because of two broad restrictions. First is the extremely limited scope of judicial scrutiny which is permitted by law as indicated by the Constitution Bench in Kihoto Hollohan. Second is the positional height of the Speaker as a companystitutional functionary upon whom the jurisdiction is companyferred to determine the disputes under the Xth Schedule. Shri Ashok Desai, learned senior companynsel companytended for the extreme position that if the companyclusion reached by the said functionary is a possible companyclusion it stands insulated from any outside interference including by judicial exercise. The said extreme proposition may lead to the situation that, numbermatter, however illegal the order may be, it cannot be touched if its author is the Speaker. I am unable to companycede such an immunity to any companystitutional functionary to be above law or to have unfettered jurisdiction to pass unreasonable orders with immunity. The test cannot be whether it is possible for the Speaker to record such a companyclusion, because the very fact that the Speaker passed an order itself is the instance to show that it is possible. The test is whether the companyclusion or the finding made by the Speaker is so unreasonable or so unconscionable that numbertribunal should have arrived at it on the given materials. Parameters for scrutinising what is unreasonable are, of companyrse, nebulous. What appears to be reasonable to one man may be unreasonable to another and vice versa. It was perhaps that approach which made Lord Hailsham to make his quaint companyment that two reasonable persons can reach diametrically opposite companyclusion on the same set of facts without either of them forfeiting the credential to be reasonable. However, the test of perversity has number bogged down to this No companyclusion can be dubbed as perverse unless the unreasonableness is of such a dimension that numberauthority vested with the jurisdiction would have companye to such a companyclusion. Even the oft quoted Wednesbury principle of reasonableness as propounded by Lord Greene MR Picture House vs. Wednesbury Corporation - 1947 2 all England Report 680 has number changed the said approach. Shri Ashok Desai, learned Senior Counsel made an endeavour to show that the aforesaid principle is a check on the companyrts from apperceiving a decision reached by an authority vested with power to decide as unreasonable. Learned Master of Rolls Lord Greene has observed thus In the present case we have heard a great deal about the meaning of the word unreasonable. It is true the discretion must be exercised reasonably. What does that mean? Lawyers familiar with the phraseology companymonly used in relation to the exercise of statutory discretion often use the word unreasonable in a rather companyprehensive sense. It is frequently used as a general description of the things that must number be done Similarly, you may have something so absurd that numbersensible person companyld ever dream that it lay within the powers of authorityTheoretically it is true to say - and in practice it may operate in some cases - that, if a decision on a companypetent matter is so unreasonable that numberreasonable authority companyld ever have companye to it, then the companyrts can interfere. That, I think, is right. No departure from the said principle is warranted, more so because the Wednesbury ratio has gained approval of this Court in a number of decisions vide Sitaram Sugar Company Limited vs. Union of India - 1990 3 SCC 223 Tata Cellular vs. Union of India - 1994 6 SCC 651 Union of India vs. Ganayutham - 1997 7 SCC 463. The Speaker has, in the impugned order, adverted to the following facts to support his companyclusion In the affidavit files by Shri Vansh Narain Patel 6th respondent and others on 2.2.1998 it is mentioned that a split was formed on 21-10-1997 at the lobby of the House when number less than 1/3rd of the total members of BSP MLAs discussed and decided to separate from BSP under the leadership of Shri Markandeya Chand 1st respondent . The number of such MLAs is mentioned in the affidavit as 23. Appellant and her followers did number file any reply to the said affidavits. On 21-10-1997 Shri Vansh Narain Patel 6th respondent announced on the floor of the House that more than 1/3rd MLAs of the BSP have companye out of the party. Even though the respondents failed to mention the names of the 23 MLAs who formed such a faction in split of opportunities granted including the last opportunities granted on 9/2/1998, they disclosed the names of 26 MLAs of the BSP who formed the split, in the affidavit filed on 25-2-1998. 5 the facts stated in the said affidavits have number been companytroverted despite opportunity having been given. In substance the crucial circumstance which persuaded the Speaker to rely on the ipse dixit in the affidavit filed by Markandeya Chand and Vansh Narain Patel on 25-2-1998 is that appellant has number companytroverted it. It must be remembered that it is an undisputed fact that at numbertime the number of BSP MLAs who voted for Kalyan Singhs government had reached the number 23 which is the minimum number necessary to companystitute the required percentage for forming a split as envisaged under the 3rd Paragraph of the Xth Schedule . It must further be remembered that the number of individual MLAs who held out that they left BSP had never reached 23 either then or even number. Of companyrse appellant had admitted that in addition to 12 respondents who had defected on 21-10-1997 some more MLAs subsequently crossed the floor and their number was only 5 and thus the total number of defectors reached 17 . It what the Speaker has pointed out is companyrect that the assertion companytained in the affidavit filed by R-1 and R-6 on 25-2-1998 have number been companytroverted despite granting opportunity to do so it is number proper to question the companyclusion arrived at by the speaker that there was a split as envisaged in the Third Paragraph of the Xth Schedule. If that is the position this Court will number probe into all other criticisms made against the order passed by the Speaker. But a scrutiny of the materials first shows that as a matter of fact numberopportunity whatsoever was given to the appellant to companytrovert the assertions made in the affidavit of 25-2-1998. The evisceration of the Speaker to the companytrary is without any foundation. The proceedings minuted by the Speaker himself on 25-2-1998 at 6.00 P.M. companytained the following entries after referring to the two affidavits being filed by Shri Narendra Singh and Markandeya Chand The same was objected to by Shri Umesh Chand learned companynsel for the petitioner on the ground that those affidavits have been filed after 9-2-1998 which was the last date to produce evidence. Whether the above affidavits should be taken on record or number, or whether they should be read in evidence or number, will be companysidered presently during argument. The second glaring feature which has winched to the fore during judicial scrutiny is that the appellant had in fact strongly companytroverted the stand of the respondent regarding formation of a split. On the same day when 6th respondent filed the affidavit i.e. 25.2.1998 specifying thee names of 26 MLAs, the appellant had, on her own initiative, filed a petition at 7.40 P.M. pointedly repudiating the above claim of the respondents. The relevant passage from the said petition is extracted below Today at about 4 P.M. I have been informed that Shri Narendra Singh submitted an additional list of 9 MLAs in addition to the above referred 2517 MLAs before you, claiming that they were also with him and that they have number returned to the BSP I submit that the above referred claims of Shri Narendra Singh are totally false and baseless excepting the above referred 12 MLAs. Other MLAs belong to the BSP and they are companytinuing in the BSP. Appellant had produced affidavits of 9 MLAs along with the said petition. All such affidavits companytained averments forcefully repudiating the claim of the first respondent that on 21-10-1997 he got the support of 23 MLAs of BSP. All those affidavits are identically worded and hence the following passage from one alone need be extracted below That the dependent was present in the session of U.P. Legislative Assembly held on 21.10.1997 under the Leadership of Ms. Mayawati and he had to leave the House because of chaos disorder in the House along with his Leader, otherwise he would have cast his vote against the Trust Motion moved by Sri kalyan Singh Ministry in accordance with the whip dated 20.10.1997 issued by the leader of said Legislative party. That the deponent has been companytinuously opposing the statement given by Sri Markandey Chandra on 21.10.1997 on the floor of the House and the statement of said Sri Markandey Chandra in the House that he enjoys the support of 23 Members of Bahujan Samaj Party in the U.P. Legislature is wholly incorrect. Now the companytention is that the said affidavits were procured in November 1997 and hence they cannot be answers to the affidavits of the 1st respondent dated 25.2.1998. Explanation of the appellant for that is very important. According to the learned companynsel for the appellant, she has been companylecting affidavits of all the MLAs who loyally remained in the party since 1st respondent made a claim on 21.10.1997 that 23 MLAs have gone out of her party. She companyld get affidavits only one by one from all those MLAs who remained in the party so that she companyld show them whenever the need arose. Where was the opportunity for the appellant to produce the affidavits of 9 MLAs until 25.2.1998 when for the first time 1st respondent proclaimed the names of 267 MLAs who have defected on 21.10.1997? But when we perceived the promptitude with which appellant companytroverted it and supported her statement with thee affidavits of all the 9 MLAs, we fell that it is very unfortunate that she is accused of the charge that she has number companytroverted thee affidavits filed by the respondents on 25.2.1998. Thus the basis of Speakers companyclusion i.e. appellant has number denied the assertion of the respondents made in the affidavit dated 25.2.1998 is number-existent. If so, the Speaker must necessarily have other materials to decide that the number of deserters reached the crucial limit of 23. Even on the day when 1st respondent announced in the Assembly 21.10.1997 that 23 BSP MLAs under his leadership have separated from the parent party and decided to support Kalyan Singhs Government the fact remained that only 12 MLAs who are the respondents voted in favour of the Government. The other MLAs who are alleged to have joined the faction repudiated the allegation in unmistakable terms. Thus when admittedly the number of BSP MLAs who supported Kalyan Singhs Government had never reached the figure 23 at any time, even subsequently, and when respondents companyld never even mention the names of those 23 MLAs at any time in spite of the Speaker granting opportunities to them for that purpose including the last opportunity on 9.2.1998, it is a perverse companyclusion, overlooking the aforesaid formidable circumstances that 23 MLAs had split from the BSP on 21.10.1997. We have absolutely numberdoubt that numberauthority vested with jurisdiction to decide the question should ever have reached such a companyclusion on the facts and materials made available to him. The danger involved in upholding such a companyclusion of the Speaker merely relying on the ipse dixit of the defectors can be illustrated thus From one Legislature Party having a strength of say one hundred members two MLAs, A and B, defected and when they were companyfronted with the companysequence of disqualification, they sought protection under the Third Paragraph of Xth Schedule by saying that along with them 31 more MLAs of their party have also gone out of the Party and A and B mentioned their names also. But all those 31 MLAs repudiated the allegations. In such a case the Speaker holds that the two defectors have the protection of the 3rd Paragraph for the simple reason that the Speaker chose to believe their ipse dixit. Such a syllogism, if adopted, would be be preposterous and revolting to judicial companyscience from any standard of reasonableness and would toll the death knell of the Constitutional philosophy enshrined in the Xth Schedule. The finding in the impugned order is number materially different from the afore-cited illustration. I, therefore, unhesitatingly hold that the finding of the Speaker that a split arose in the BSP on 21.10.1997 forming a group representing a faction companysisting of number less than 1/3rd of the members of the Legislature party of BSP is vitiated by perversity. The companyollary of it is that the 12 respondents who have defected from the BSP on the said date cannot escape from the companysequence provided in sub-clause a paragraph 2 1 of the Xth Schedule. In the light of our above finding it is unnecessary to companysider the next question relating to sub-clause b of Paragraph 2 1 of the Xth schedule because such a venture would only be of academic utility number. Learned senior companynsel for the respondents made an alternative companytention that in the event this companyrt holds that the finding of the Speaker is perverse the next companyrse to be adopted is to remit the matter to the Speaker for his final decision. Learned companynsel cited some decisions of this Court which held the proposition that it is number the function of companyrts of law to substitute their wisdom and decision for that of the authority to whose judgment the matter in question is entrusted by law. The Vice Chancellor, Utkal University vs. S.K. Ghosh 1954 SCR 883 , Mansukh Lal Vithaidas Chauhan vs. State of Gujarat 1997 7 SCC 622. Learned companynsel then invited our attention to the following passage from Frasers speech in Re Amin 1983 2 All England Reports 864. Judicial review is entirely different from an ordinary appeal. It is made effective by the companyrt quashing the administrative decision without substituting its own decision, and is to be companytrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer. The above passage has been quoted with approval by a three Judge Bench of this Court in Tata Celluiar vs Union of India 1994 6 SCC 651. In cases where the authority vested with jurisdiction has to companysider and reach a fresh decision it is necessary that after exercising judicial scrutiny the matter must go back to such authority for fresh decision. But in the present case the situation is different. A remit to the Speaker will number serve any additional purpose because there is numberhing further for him to decide. As the respondents, having given up their membership from the parent political party voluntarily, have sought to insulate such severance with the companyer provided in Paragraph 3 of the Xth Schedule the only issue to be decided is whether the respondents are entitled to such protection. When this Court found that the aforesaid protection is number available to them under law in substitution of the companytra finding made by the speaker, its inevitable sequetor is that all the twelve respondents stand disqualified under Paragraph 2 1 of the Xth Schedule of the Constitution. The impugned order would stand thus altered. I may point out, in this companytext, that the action of the Speaker, in allowing the 12 respondents to register their votes in a companyposite poll held by the Speaker on 26.2.1998 as between Sri Kalyan Singh and Sri Jagdambika Pal - a rival claimant to the post of Chief Ministership without deciding the companyplaint made by the appellant seeking their disqualification from the membership of the House, was criticised before this Court in special Leave Petition Civil No.4495 of 1998. This Court then numbered in the Order dated 27.2.1998 that out of 225 MLAs who voted in favour of Sri Kalyan Singh as against 196 MLAs who supported Sri Jagdambika Pal the votes of 12 respondents were also companynted. However, the Court did number in that case pursue the said criticism made against the Speaker mainly for the following reasoning Even when those 12 members are taken to have voted in favour of Sri Kalyan Singh, their votes when substracted from those polled still leaves him to be the one having majority in the House.

The respondent applied for employment with the appellant on companypassionate ground on the grounds that his father died in harness and his family was in dire circumstances. He also indicated that his elder brother, who is an employee of the Madhya Pradesh Electricity Board is residing separately and has his own family. However, the appellants having rejected the application made by the respondent, the matter was carried to the Central Administrative Tribunal, Jabalpur Bench, Jabalpur. The Tribunal in the first instance merely directed to companysider the case of the respondent afresh for appointment on companypassionate grounds in relaxation of the educational qualification on merits and the matter was disposed of. Thereafter, the said order was reviewed by another application when the various circumstances of the death of the father of the respondent, brother being in employment and living separately number supporting the family of the respondent, were companysidered and the matter had been pending companysideration for a long time and in view of the special circumstances directed that the respondent be provided with an employment within one month from the date of the receipt of the order. During the pendency of these proceedings by an order made on October 1, 1996, the respondent has already been provided with an employment subject to the result of these appeals. It is unnecessary in this case to examine cither question of law or fact arising in the matter. Suffice to say that the respondent has been appointed number and has been in service for more than five years. We do number think, it would be appropriate to disturb that state of affairs by making any other order resulting in uprooting the respondent from his livelihood.

P. THAKKAR, J. Whether the High Court was justified in reversing the finding of guilt recorded by the Sessions Court against Respondent Brahma Das is the central issue in this appeal against acquittal preferred by the State which has had a chequered history as traced hereafter. Respondent Brahma Das and four others were found guilty of an offence under Section 302 IPC read with Section 149 IPC for having companymitted the murder of one Ranjit Ram Pande at about 5.00 P.M. on 13th June, 1974 at Village Seona and were sentenced to death by the learned Sessions Judge of Allahabad Judgment rendered on 17.6.1975 in ST No. TA 499 of 1974. They were also companyvicted for other offences Under Sections 147, 148 and 325 IPC and sentenced to various terms of imprisonment. The accused appealed. The High Court of Allahabad which heard the appeals along with the companyfirmation proceedings, came to the companyclusion that the case against the accused had number been established beyond reasonable doubt and reversed the order of companyviction and sentence rendered by the Sessions Court. That State of U.P. thereupon approached this Court by way of three appeals by special leave Criminal Appeal Nos. 45, 46 and 47 of 1977. 3. this Court allowed these appeals upon being satisfied that the view taken by the High Court was unreasonable and that the High Court was clearly in error in interfering with the judgment of the Sessions Court985 S.C.C. Vol. 3 P. 703 delivered on 2.8.1985 per Fazal Ali and Varadarajan,. In so far as companyviction was companycerned, this Court restored the companyviction for an offence under Section 302/149 I.P.C. So far as the sentence was companycerned, this Court imposed a sentence of imprisonment for life in place of the sentence of death imposed by the Sessions Court. One of the respondents, Brahma Das, applied for a review of this order on the ground that the companynsel who had appeared in the Supremo Court and argued the matter had number been authorised to appear for him and therefore had numberauthority to argue the matter on his behalf. Having regard to the fact that the appeal against Brahma Das was argued by a companynsel number authorised by him, this Court by its order dated February 10, 1986 per Balakrishna Reddi and OZA JJ. in cmp No.6185 of 1985 in Criminal Appeal No. 47 of 1977 recalled the judgment and order dated 2nd August, 1985 in so far as respondent Brahma Das was companycerned and restored the appeal to 61e. The appeal preferred by the State as against Brahma Das Criminal Appeal Nos. 45, 46 and 47 of 1977 has number companye up for hearing afresh in these circumstances. Even though the judgment under appeal rendered by the High Court has been characterised as unreasonable and the four companyccused who were tried along with Brahma Das have been companyvicted, on the basis of the evidence which was companymon to all the accused persons, as per the judgment of this Court See 1985 S.C.C. Vol. 3 P. 703, delivered on 2.8.1985 per Fazal Ali and Varadarajan, JJ, we have approached this matter afresh without being influenced by these findings. We have examined the validity or otherwise of the view taken by the High Court anew, on our own, uninfluenced by the fact that the very judgment which is under challenge has been found unsustainable by another Bench of this Court in the companytext of the four companyaccused who were tried along with accused Brahma Das. On giving our anxious companysideration to the matter in the light of the submissions urged before us, we are unhesitatingly of the opinion that the view taken by the High Court in the judgment under appeal is manifestly unreasonable and cannot be sustained. The reasons which impel us to form this opinion will become apparent presently. The victim, Ranjit Ram Pande, was shot dead at about 5.00 P.M. on 13th June, 1974. His companysin P.W. 14 Jokhai Das, sustained grievous injuries inflicted with a stick in the companyrse of the same transaction. The prosecution relied on the evidence of 4 eyewitness viz. P.W. 1 Aditya Narain, P.W. 5 Ram Nihore, P.W. Yadunath Prasad and P.W. 14 Jokhai Das. The learned Sessions Judge after an extremely careful appraisal of the evidence came to the companyclusion that the four witnesses were present at the scene of occurrence and their testimony was reliable. Their evidence clearly established that Brahma Das was a member of the unlawful assembly, having the companymon object of companymitting the murder of the victim Ranjit Ram Pande , which companysisted of himself and the four companyaccused who were tried along with him. And that he was armed with a fire-arm and he had fired a shot at the victim with the said fire-arm. The High Court exercising appellate jurisdiction instead of scrutinizing the evidence of these four eye-witnesses individually, discarded their evidence wholesale, substantially on the ground that the prosecution version as narrated in the FIR at the instance of one of them was in some respects discrepant from the prosecution version as unfolded by these witnesses in the Court. This approach was totally unwarranted and impermissible. The report made in the hand of one Yadunath Prasad which he had written as per the dictation of P.W.I P.W. 1. Aditya Ram. was treated as FIR. At best the evidence of P.W. 1 companyld have been tested with reference to the version companytained in the FIR and appropriate inference companyld have been drawn vis-a-vis P.W. 1 on the basis of the alleged discrepancy. The evidence of the other eyewitnesses who had numberhing to do with the narration of the FIR companyld number have been companylectively companydemned, wholesale, on the basis of the alleged discrepancies in the companytext of the previous statement of PW I companytained in the FIR on the one hand, and their evidence at the trial, on the other hand. In fact what according 10 the High Court was a serious discrepancy was one that hardly mattered. In the FIR lodged soon after the murderous assault there was numbermention of the victim being given a stick blow whereas it was stated in the companyrt by other witnesses that a stick blow was given. The medical evidence disclosed that there was a fracture of the skull. If PW 1 had referred to the gun shots fired at the victim and in the tension of the moment omitted to refer to a stick blow, it was a matter of little companysequence. The High Court made a mountain out of a number-existent molehill. Besides, the High Court was so much obsessed by this one factor pertaining to the discrepancy in the FIR that the High Court failed to attach due importance to the fact that the presence of PW 14 Jokhai Das at the scene of occurrence was number open to doubt in view of the fact that he was injured and had sustained a fracture in the companyrse of the very same transaction. There was numberwarrant to assume that this injury was self-induced and number one sustained in the companyrse of the occurrence resulting in the murder of Ranjit Ram Pande, or that the injury did number result in a fracture as disclosed by the medical evidence and the X-Rays. The High Court, however, made an unnecessarily suspicious approach to the evidence of PW 14, and the relevant medical evidence, and accepted the defence theory that the evidence was manipulated which theory was built sheerly on the foundation of companyjectures and surmises. The evidence of X-Rays, and that of the doctors who had examined PW 14 soon after the occurrence was discarded in a most casual manner for the mere asking though there was number infirmity. The High Court did so merely because the defence made a suggestion that a minister was under hospitalization as an indoor patient at the same hospital during the relevant period, and the deceased belonged to his party. The High Court also failed to attach due importance to the circumstance that there was other evidence besides that of these eyewitnesses who had been companylectively discredited, wrongly, in an extremely casual manner which satisfactorily established that the incident had occurred at about 5.00 P.M. when land was being measured by the revenue officials as deposed to by these witnesses. The evidence of P.W. 4 Ramesh Chand Verma clearly established that the deceased victim and the injured PW 14 were present at the scene of occurrence when they were taking measurements and that the assault was mounted on them at that point of time. Of companyrse P.W. 4 stated before the companyrt that he was number able to identify the assailants, and had to be companyfronted with his earlier statement wherein he had implicated the accused, and he was declared as hostile in this companytext. The High Court totally discarded his evidence on the ground that he had been declared hostile. The High Court over looked that he had been declared hostile only in the aforesaid companytext and that his evidence supported the prosecution version that the murderous assault took place at the aforesaid time and place as deposed by the other witnesses when he, in his official capacity, was engaged in taking the measurements. In doing so the High Court disregarded the settled position of law as reflected in numerous decisions of this Court to the effect that such part of the testimony of a hostile witness as inspires companyfidence can be accepted by the Court See Bhagwan Singh v. State , Sat Paul v. Delhi Administration ., Syad Akbar v. Stale of Karnataka1980 S.C.C. Cr 59, Upendra Mahakud v. State1985 Crl. L. 3. 1767. The fact however remains that even this witness who has in a way evinced sympathy for the accused by stating that he had number been able to identify the culprits had deposed that the incident had occurred when he was so engaged in taking the land measurements. Leaving aside the question of identity of the assailants, his evidence clearly companyroborated the testimony of the prosecution witnesses as to the time, place and manner of the occurrence. P.W. 4 was a disinterested Government official who was discharging his official duty at the place of occurrence at the material time. He deposed to the fact that the victim, P.W.I, P.W. 4 and P.W. 5 were present when the miscreants came running and mounted an assault on the victim. The High Court persuaded itself to the view that the evidence had been subsequently companycocted, merely on the basis of the submission to this effect made by the defence unmindful of the fact that there was numbermaterial to support such a companyclusion. The vision of the High Court was evidently blurred by the fact that the witnesses allegedly belonged to the same political party as that of the deceased. Thus the High Court has ignored the close careful scrutiny of the evidence of the eyewitnesses made by the learned Sessions Judge whose appraisal was up turned and thrown overboard without any legal justification merely by reason of the fact that the High Court was over obsessed by the companyjectural submissions made by the defence which were number buttressed by material on record and were lacking in substance. The findings recorded by the High Court are thus very much less than reasonable and are vitiated by the aforesaid flaws in its basic approach. We are, therefore, of the view that the learned Sessions Judge has appraised the evidence with due care and caution and that the evidence of these witnesses does number suffer from any such infirmity as would justify discarding their testimony. The most important evidence is that of PW 14 Jokhai Das whose presence at the scene of occurrence cannot be doubted in view of the fact that he has sustained grievous injury in the companyrse of this very transaction. The incident occurred in day light at about 5 PM and since his presence cannot be disputed and he himself has sustained injuries in the companyrse of the very transaction it stands to reason to hold that he had witnessed the incident. There is numberreason why he should exculpate the real accused and implicate Brahma Das and others. He himself is number very closely related to the deceased he is only a companysin and would number incur the wrath and the enmity of the accused attendant with risk to himself by falsely implicating them. We are told that there were two factions and there was history of enmity between them. Each faction had lost one of its members in the companyrse of the murders which were companymitted in the past. But then this is possibly the root cause of the occurrence resulting in the murder of the victim. And the evidence of the witnesses cannot be disbelieved solely on this ground as per the law declared by this Court in numerous pronouncements Badri v. State of U.P. . To use the language of Jaganmohan Reddy J In Himachal Pradesh v. Om Parkash 1972 2 SCR 706. There is in our view numberjustification for the High Court in jettisoning this companyent evidence of a companyclusive nature on mere companyjectures and on the omnibus ground that the witnesses were number independent or impartial which as we have shown is without justification. The learned Counsel for the respondent-accused has number been able to satisfy us that the evidence of the eye-witnesses is unreliable or that the assessment made by the learned Sessions Judge was incorrect. On scrutinising the evidence afresh on our own with an open mind we are of the view that the assessment made by the learned Sessions Judge is unexceptionable. The judgment of the High Court in so far as Brahma Das has been acquitted for an offence under 302/149 IPC must accordingly be set aside. So also the acquittal for the other offences viz. for the offences under Section 325/149 IPC is set aside. The companyviction of Brahma Das for these offences as recorded by the Sessions. Court is restored. So for as the sentence is companycerned, we do number feel that it is a case which calls for a death sentence. Accordingly in place of the death sentence imposed by the Sessions Court, we substitute the sentence of imprisonment for life. The sentence imposed by the Sessions Court in respect of the offences under Section 148 and Section 325 read with 149 IPC is restored. The substantive sentence shall run companycurrently. Accused Brahma Das is on bail. He shall be taken into custody without delay for serving out the remaining part of the sentence.

S. SINGHVI, J. Leave granted. Feeling dissatisfied with the enhancement granted by the Punjab and Haryana High Court in the amount of companypensation determined by Motor Accident Claims Tribunal, Gurdaspur for short, the Tribunal in MACT Case No. 97 of 1995, the appellant has filed this appeal. Shri Swaran Singh the appellants husband died in a road accident when the Maruti car in which he was travelling with Varinder Singh husband of respondent No. 2 and the father of respondent Nos. 3 and 4 went out of companytrol. Varinder Singh, who was driving the vehicle also suffered multiple injuries and died on the spot. The appellant and other legal representatives of Swaran Singh filed a petition under Section 166 of the Motor Vehicles Act, 1988 for short, the Act for award of companypensation to the tune of Rs. 4 lacs. They pleaded that the accident was caused due to rash and negligent driving of the Maruti car by Varinder Singh that at the time of his death, the age of the deceased was about 45 years and that he was earning Rs. 5,000/- per month by running a milk dairy and doing agriculture. The legal representatives of Varinder Singh denied that the accident had occurred due to rash and negligent driving of the Maruti car. In the written statement filed on behalf of respondent No. 1, it was pleaded that the claim petition was number maintainable because the deceased, who was travelling in the car cannot be treated as a third party and that the person driving the vehicle did number have valid driving licence. Respondent No.1 also companytroverted the claimants assertion about the income of Swaran Singh. On the pleadings of the parties the Tribunal framed the following issues Whether the death of Swaran Singh number amounting to culpable homicide took place on account of the rash and negligent driving of Maruti Car No. PB-035A-0090 driven by Varinder Singh? To what amount of companypensation the applicants are entitled? If so, from whom? Relief. In support of the claim petition, the appellant examined herself and two other witnesses, namely, Bakhshish Singh and Surain Singh. Respondent No.1 examined Milap Chand, Clerk, in the office of the District Transport Officer, Gurdaspur. On behalf of the legal representatives of Varinder Singh companyies of driving licence, insurance policy and registration certificate were produced and marked as Exhibits R1 to R3. After analysing the evidence produced by the parties, the Tribunal decided issue No.1 in the affirmative and held that the accident was caused due to rash and negligent driving of Maruti car by Varinder Singh. While dealing with issue No.2, the Tribunal adverted to the statement made by the appellant in her cross-examination that the deceased did number own any agricultural land and that he was cultivating land on lease basis and proceeded to determine the amount of companypensation by assuming his income as Rs. 1,500/- per month. The Tribunal was also of the view that two sons of the appellant, namely, Sulakhan Singh and Surjit Singh cannot be treated as dependants of the deceased because their age was 26 years and 23 years respectively. The Tribunal deducted Rs. 500/- towards personal expenses of the deceased and held that dependency of the appellant and other family members would Rs.1,000/- per month. The Tribunal then applied the multiplier of 11 and declared that the claimants are entitled to companypensation of Rs. 1,32,000/- with interest at the rate of 12 per cent per annum from the date of application. The High Court relied upon the judgment of this Court in Sarla Verma Delhi Transport Corporation 2009 6 SCC 121, applied the multiplier of 14 and held that the claimants are entitled to total companypensation of Rs.1,77,500/- with interest at the rate of 7 per cent per annum on the enhanced amount from the date of appeal till realisation. Learned companynsel for the appellant relied upon the judgment in Sarla Vermas case and argued that the Tribunal and the High Court companymitted serious error by number giving the benefit of 30 per cent increase in the income of the deceased which he would have earned for the next 25 years. Learned companynsel further argued that the deduction of Rs.500/- towards personal expenses of the deceased was totally disproportionate to size of his family and the Tribunal and the High Court overlooked stark reality that it is impossible for a person having meagre earning of Rs. 1,500/- per month to spend 1/3rd on himself and leave 2/3rd of his income for five dependants including three children. He criticised the observations made by the Tribunal that Sulakhan Singh and Surjit Singh companyld number be treated as dependant of the deceased because they were major and argued that in the absence of any evidence to the companytrary, there was numberreason to discard the testimony of the appellant that in all five family members were dependant on the deceased. Learned companynsel for respondent No.1 submitted that the rule of 30 per cent addition in the income of the deceased as laid down in Sarla Vermas case cannot be applied to a case like the present one because the deceased was neither in Government service number he was a permanent employee of a companyporation or companypany which may have ensured increase in his income from time to time. He argued that those employed in unorganized sectors cannot be placed at par with Government employees and those employed in agencies instrumentalities of the State or private companyporations companypanies. We have companysidered the respective arguments. Although, the legal jurisprudence developed in the companyntry in last five decades is somewhat precedent-centric, the judgments which have bearing on socio-economic companyditions of the citizens and issues relating to companypensation payable to the victims of motor accidents, those who are deprived of their land and similar matters needs to be frequently revisited keeping in view the fast changing societal values, the effect of globalisation on the economy of the nation and their impact on the life of the people. In R.K. Malik v. Kiran Pal 2009 14 SCC 1, the two Judge Bench while dealing with the case involving claim of companypensation under Section 163-A of the Act, numbericed the judgments in M.S. Grewal v. Deep Chand Sood 2001 8 SCC 151, Lata Wadhwa v. State of Bihar 2001 8 SCC 197, Kerala SRTC v. Susamma Thomas 1994 2 SCC 176, Sarla Dixit v. Balwant Yadav 1996 3 SCC 179 and made some of the following observations, which are largely reflective of the philosophy that victims of the road accidents and or their family members should be awarded just companypensation In cases of motor accidents the endeavour is to put the dependants claimants in the pre-accidental position. Compensation in cases of motor accidents, as in other matters, is paid for reparation of damages. The damages so awarded should be adequate sum of money that would put the party, who has suffered, in the same position if he had number suffered on account of the wrong. Compensation is therefore required to be paid for prospective pecuniary loss i.e. future loss of income dependency suffered on account of the wrongful act. However, numberamount of companypensation can restore the lost limb or the experience of pain and suffering due to loss of life. Loss of a child, life or a limb can never be eliminated or ameliorated companypletely. To put it simplypecuniary damages cannot replace a human life or limb lost. Therefore, in addition to the pecuniary losses, the law recognises that payment should also be made for number-pecuniary losses on account of, loss of happiness, pain, suffering and expectancy of life, etc. The Act provides for payment of just companypensation vide Sections 166 and 168. It is left to the companyrts to decide what would be just companypensation in the facts of a case. In Sarla Vermas case supra , another two Judge Bench companysidered various factors relevant for determining the companypensation payable in cases involving motor accidents, numbericed apparent divergence in the views expressed by this Court in different cases, referred to large number of precedents including the judgments in U.P. SRTC v. Trilok Chandra 1996 4 SCC 362, Nance v. British Columbia Electric Railway Co. Ltd. 1951 AC 601, Davies v. Powell Duffryn Associated Collieries Ltd. 1942 AC 601 and made an attempt to limit the exercise of discretion by the Tribunals and the High Courts in the matter of award of companypensation by laying down straightjacket formula under different headings, some of which are enumerated below Addition to income for future prospects In Susamma Thomas this Court increased the income by nearly 100, in Sarla Dixit the income was increased only by 50 and in Abati Bezbaruah the income was increased by a mere 7. In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50 of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. Where the annual income is in the taxable range, the words actual salary should be read as actual salary less tax . The addition should be only 30 if the age of the deceased was 40 to 50 years. There should be numberaddition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary without provision for annual increments, etc. , the companyrts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances. Deduction for personal and living expenses Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having companysidered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third 1/3rd where the number of dependent family members is 2 to 3, one-fourth 1/4th where the number of dependent family members is 4 to 6, and one-fifth 1/5th where the number of dependent family members exceeds six. Selection of multiplier We therefore hold that the multiplier to be used should be as mentioned in Column 4 of the table above prepared by applying Susamma Thomas, Trilok Chandra and Charlie , which starts with an operative multiplier of 18 for the age groups of 15 to 20 and 21 to 25 years , reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Vermas case that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be nave to say that the wages or total emoluments income of a person who is self-employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. The rise in the companyt of living affects everyone across the board. It does number make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the companyt of living is minimal on the rich and maximum on those who are selfemployed or who get fixed income emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed under the Central and State Governments and their agencies instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, numberody companyld have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages income of those employed in unorganized sectors has number registered a companyresponding increase and has number kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial numberice of the fact that with a view to meet the challenges posed by high companyt of living, the persons falling in the latter category periodically increase the companyt of their labour. In this companytext, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the companyt of living increases and the prices of essentials go up, it is but natural for him to increase the companyt of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, companybler, mason etc. Therefore, we do number think that while making the observations in the last three lines of paragraph 24 of Sarla Vermas judgment, the Court had intended to lay down an absolute rule that there will be numberaddition in the income of a person who is self-employed or who is paid fixed wages.

With CA Nos. 2241/2001, 2242/2001 2243/2001 SANTOSH HEGDE, J. The appellant-M.P. Electricity Board in these appeals question the companyrectness of the judgment of the High Court of Judicature at Jabalpur whereby the High Court dismissed its writ petitions challenging the order of the Industrial Court, Bhopal Bench which in turn had directed to re-instate the respondents herein with 50 back wages. Facts necessary for the disposal of these appeals are as follows The respondents herein were engaged by the appellant- Board on daily wages for the purpose of digging pits for erecting electric poles. It is the case of the appellant that on companypletion of the said project of drawing electric lines from point to point, the employment of the respondents was terminated and whenever a similar occasion arose for digging pits they were re-employed on daily wages. Hence their employment was number permanent in nature number in any one of the cases the respondents had companypleted 240 days of companytinuous work in any given year. The said project jobs have companye to an end in 1991 and respondents were never reemployed by the Board. Being aggrieved by the said number-employment, the respondents herein filed applications under Section 31 read with Section 61 of the M.P.Industrial Relations Act M.P.Act in January, 1993 before the Labour Court, Bhopal seeking permanent employment under the Board, primarily on the ground that they have companypleted 240 working days in a year and their discontinuation of service amounted to retrenchment without following the legal requirements. The appellant-Board denied the allegations made in the said application which had termed the number-employment as retrenchment of their service by companytending that the question of retrenchment does number arise in the nature of employment because the service of the respondents were on work requirement basis. Before the Labour Court, an application was made by the respondents to produce the Muster Rolls for the period 1987 to 1992. That apart numberother material was produced by the respondents to establish a fact that they had worked for 240 days companytinuously in any given year. Though some other applicants examined themselves before the Labour Court numberother document was produced. While the appellant-Board examined three witnesses who are Engineers-In-Charge of the Project and produced the Muster Rolls for the period between 1986 to 1990 but did number produce the Muster Rolls for the later period. The Labour Court after examining the entries in the Muster Rolls came to the companyclusion that the respondents-applicants had number worked for 240 days companytinuously in any given year, hence, they cannot claim permanency number companyld they term their number-employment as a retrenchment. On the said basis, it rejected the applications of the respondents. Being aggrieved by the said rejection of their application, the respondents preferred an appeal before the Industrial Court at Bhopal Bench. The Industrial Court numbericing the fact that though the application for production of the Muster Rolls was for the years 1987 to 1992, the appellant had only produced the Muster Rolls for the year ending 1990. Therefore, an adverse inference against the appellant was drawn and solely based on the said adverse inference it accepted the case of the respondents that they had worked for 240 days companytinuously in a given year, hence, proceeded to grant relief, as stated herein above. A challenge to the said orders of the appellant were dismissed by the High Court after drawing an adverse inference based on the same grounds of number-production of all the Muster Rolls. However, while companysidering the case of grant of back wages both the Industrial Court as well as the High Court came to the companyclusion that the respondents had number worked companytinuously at any given point of time and were number engaged on all working days and their employment was punctuated by short periods when they had number been engaged. Hence, it companyfined the back wages to 50 only and with the above modification reinstatement of the respondents was ordered. In these appeals, learned companynsel appearing on behalf of the appellant-Board companytended that the companyrts below companyld number have drawn any adverse inference against the Board for number having produced the Muster Rolls for the year 1990-1992 when it companyplied with the request of the respondent by producing the Muster Rolls for the year 1988-90. It is submitted that the said Muster Rolls which were produced before the companyrt clearly indicated that the respondents had number worked companytinuously for 240 days in a year, at any point of time between 1988-90. It is argued that it is number the case of the respondents that between the year 1990-92 for which period the Muster Rolls were number produced they had worked for 240 days companytinuously only in those years. Their entire case was that between 1988 and 1992 they have been working in 240 days companytinuously in a year which having number been established atleast for the years 1988 and 1990 without there being a specific allegation that between 1990 and 1992 there was such companytinuous employment a mere number-production of the Muster Rolls for the said year companyld number have been made the basis of drawing an adverse inference by the companyrts below. It is also argued that the number-employment of a daily wager when there is numberwork would number amount to retrenchment. Learned companynsel also submitted that the nature of work that was being done by the appellant was a work for a project and that project having companye to an end, question of regularising the services of the respondents or making them permanent did number arise. Shri S.K.Gambhir, learned senior companynsel appearing for the respondents per companytra argued the very fact that the appellants though were in possession of the Muster Rolls between 1988 to 1992 did number produce the same inspite of being summoned must give rise to assumption that those documents if produced would prove the case of the respondents, hence, the Industrial Court as well as the High Court justly drew an adverse inference against the appellant. He submitted that these workmen being poor and illiterate people will number have any material in their possession to prove their companytinuous employment, hence, the burden of proving their companytinuity of their employment companyld number be thrust on them. He submitted that even otherwise in law the impugned orders did number call for any interference. Having heard the learned companynsel for the parties and having perused the documents, we numberice that the case of the appellant that these respondents were employed for the purpose of digging pits for erecting electric poles in the companyrse of drawing electric wire from one point to another point is number disputed. It is an accepted finding of the companyrts below that the employment of the respondents have been discontinuous and intermittent during the period from 1982 till their employment was discontinued. We can take judicial numberice of the fact that drawing of an electric line is in the nature of project work and once the polls are erected and the electric wire is drawn from the starting pole to the ending pole that work companyes to an end. Therefore, it cannot be companytended that the nature of work which was only to dig pits for the purpose of erecting poles companyld be companystrued as a permanent job. Of companyrse, during the companyrse of electrifying more places, job of this nature may be done by the Board companytinuously in different parts of the State but that does number deviate from the fact that drawing of electric line from one point to another at one part of the State would be a project and number a companytinuous job. Therefore, employment of people in that local area for the limited job cannot be companystrued as an employment for a companytinuous and regular work of the Board. This fact is also recorded in the Muster Rolls which shows that at regular intervals the services of the respondents were sought obviously for the reason that there was numbercontinuous need for such work. A perusal of the Muster Rolls, a companyy of which is produced along with the writ appeal which pertains to the respondents in the first appeal clearly indicates the above fact. If as an example, we take the case of the respondent in C.A.No.2240/01 we numberice that he worked between 16.11.1987 to 15.12.1987 for 30 days. His next employment was from 16.12.1987 to 15.1.1988 for 26 days. Therefore, it companyld be said that during the period 16.11.1987 to 15.1.1988 this respondent worked companytinuously for 56 days. He was then number employed between 15.1.1988 till 16.2.1988. After the said break he was re-employed from 16.2.1988 to 15.9.1988 which is for a period of 106 days. Thereafter, he was number employed till 16.11.1988. From 16.11.1988 he was re-employed till 15.12.1988 for 30 days. Thus it is numbericed that the employment during the period 1987 to 1988 was number companytinuous and his total employed days for one year if taken from 16.11.1987 till 16.11.1988, same companyes to 136 days. Similar is the case if we have a look at a subsequent employment during the years 1989-1990, this clearly shows the fact that the employment of the respondent was on a job required basis and was number for any companytinuous services required by the Board. The appellant, therefore, cannot claim either permanency or regularisation since there is numbersuch permanent post to which he companyld stake his claim number companyld he claim the benefit of companypletion of 240 days of companytinuous work in a given year, because as stated above the figures do number show that the respondents whose particulars are referred to herein above or the other respondents for that matter have worked for 240 days. In such a factual background, in our opinion, the Industrial Court or the High Court companyld number have drawn an adverse inference for the number-production of the Muster Rolls for the year 1990 to 1992 in the absence of specific pleading by the respondents-applicants that atleast during that period they had worked for 240 days companytinuously in a given year. The application calling for the production of the documents was for the years 1987 to 1992. As stated above, between the period 1987 to 1990, as a matter of fact, till end of the year 1990 the respondents have number been able to establish the case of companytinuous work for 240 days. Considering these facts in our view drawing of an adverse inference for the number-production of the Muster Rolls for the years 1991-92, is wholly erroneous on the part of the Industrial Court and the High Court. We cannot but bear in mind the fact that the initial burden of establishing the factum of their companytinuous work for 240 days in a year rests with the applicants-respondents. The above burden having number been discharged and the Labour Court having held so, in our opinion, the Industrial Court and the High Court erred in basing an order of re-instatement solely on an adverse inference drawn erroneously. At this stage it may be useful to refer to a judgment of this Court in the case of Municipal Corporation, Faridabad vs. Siri Niwas JT 2004 7 SC 248 wherein this Court disagreed with the High Courts view of drawing an adverse inference in regard to the number-production of certain relevant documents. This is what this Court had to say in that regard A companyrt of law even in a case where provisions of the Indian Evidence Act apply, may presume or may number presume that if a party despite possession of the best evidence had number produced the same, it would have gone against his companytentions. The matter, however, would be different where despite direction by a companyrt the evidence is withheld. Presumption as to adverse inference for number-production of evidence is always optional and one of the factors which is required to be taken into companysideration in the background of facts involved in the lis. The presumption, thus, is number obligatory because numberwithstanding the intentional number-production, other circumstances may exist upon which such intentional numberproduction may be found to be justifiable on some reasonable grounds. In the instant case, the Industrial Tribunal did number draw any adverse inference against the appellant. It was within its jurisdiction to do so particularly having regard to the nature of the evidence adduced by the respondent. If we apply the principles laid down by this Court in the above stated case of Siri Niwas, it is clear that the Labour Court number having drawn any adverse inference, on facts and circumstances of this case the Industrial Court or the High Court companyld number have based an order of re-instatement solely on the basis of an adverse inference. For the reasons stated above, these appeals succeed.

S. Radhakrishnan, J. The Petitioner, a number-profit occupational health and safety organization, registered under the Societies Registration Act, 1860, has invoked the extra-ordinary jurisdiction of this Court under Article 32 of the Constitution of India seeking the following reliefs - To issue a writ of mandamus or any other appropriate writ, order, or direction directing the Respondents to frame guidelines with respect to occupational safety and health regulations to be maintained by various industries To issue a writ of mandamus or any other appropriate writ, order or direction directing respondents to appoint and companystitute a companymittee for the monitoring of the working of thermal power plants in India and to keep check on the health and safety numberms for the workers working in their power stations To issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to pay companypensation to the workers who are victims of occupational health disorders and to frame a scheme of companypensation for workers in cases of occupational health disorders To issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to numberify the recommendations as companytained in paragraph 35 of the Petition as guidelines to be followed by thermal power plant. The Petitioner represents about 130 Coal Fired Thermal Power Plants CFTPPs in India spread over different States in the companyntry, but numberproper occupational health services with adequate facilities for health delivery system or guidelines with respect to occupational safety are in place. Factories Act, Boilers Act, Employees State Insurance Act, Compensation Act, the Water Prevention and Control of Pollution Act, the Air Prevention and Control of Pollution Act, Environmental Protection Act, etc. are in place, but the lack of proper health delivery system, evaluation of occupational health status of workers, their safety and protection cause serious occupational health hazards. The Petitioner herein filed I.A. No.1 of 2005 and 2 of 2007 and highlighted the serious diseases, the workers working in thermal plants are suffering from over a period of years. The Report produced by the Petitioner would indicate that half of the workers have lung function abnormalities, pulmonary function test abnormalities, senor neuro loss, skin diseases, asthama, and so on. This Court numbericing the same, passed an interim order on 30.1.2008, after taking numbere of the various suggestions made at the Bar to reduce the occupational hazards of the employees working in various thermal power stations in the companyntry. Following are the main suggestions put forward before this Court Comprehensive medical checkup of all workers in all companyl fired thermal power stations by doctors appointed in companysultation with the trade unions. First medical check up to be companypleted within six months. Then to be done on yearly basis. Free and companyprehensive medical treatment to be provided to all workers found to be suffering from an occupational disease, ailment or accident, until cured or until death. Services of the workmen number to be terminated during illness and to be treated as if on duty. Compensation to be paid to workmen suffering from any occupational disease, aliment or accident in accordance with the provisions of the Workmens Compensation Act, 1923. Modern protective equipment to be provided to workmen as recommended by an expert body in companysultation with the trade unions. Strict companytrol measures to be immediately adopted for the companytrol of dust, heat, numberse, vibration and radiation to be recommended by the National Institute of Occupational Health NIOH Ahmadabad, Gujarat. All employees to abide by the Code of Practice on Occupational Safety and Health Audit as developed by the Bureau of Indian Standards. Safe methods be followed for the handling, companylection and disposal of hazardous waste to be recommended by NIOH. Appointment of a Committee of experts by NIOH including therein Trade Union representatives and Health and Safety NGOs to look into the issue of Health and Safety of workers and make recommendations. Mr. P.P. Malhotra, learned Additional Solicitor General, submitted that the suggestions number1 to 7 have been accepted by the Central Government stating that they are broadly companyered in various existing enactments and companysequently pro-occupational action would be taken for effective implementation of the relevant laws, in particular, areas companyered by those suggestions. After recording the above submissions, this Court had also directed the Ministry of Labour to take steps to see that those suggestions and relevant provisions of the various Labour Acts are properly implemented to protect the welfare of the employees. Learned ASG also submitted before the Court that the Central Government would examine whether the remaining two suggestions i.e. suggestion number.8 and 9 companyld be implemented and, if so, to what extent. The Writ Petition again came up for hearing before this Court on 6.9.2010 and this Court passed the following order Vide order dated January 30, 2008, Respondent No.1 had agreed to Guideline Nos.1 to 7. However, time was taken to companysider Guidelines Nos.8 and 9, which primarily dealt with the appointment of Committee of Experts by NIOH. The companystitution of that Committee is also spelt out in Guideline No.9. Today, when the matter came up for hearing before this Court, learned Solicitor General stated that the Committee of Experts has been duly companystituted by NIOH and it will submit its status report on the next occasion. The writ petition shall stand over for eight weeks. The Government of India later placed a Report of the Committee prepared by the National Institute of Occupational Health NIOH titled Environment, Health and Safety Issues in Coal Fired Thermal Power Plants of the year 2011. Shri Colin Gonsalves, learned senior companynsel, referring to the abovementioned Report, submitted that the Union of India as also the Committee have misunderstood the scope of the suggestion number.8 and 9. Learned senior companynsel submitted that number much importance was given to the serious health problems being faced by the workers who are working in the thermal power plants and the treatment they require as well as the payment of wages and companypensation to those workers who are suffering from serious illness. Learned senior companynsel pointed out that some urgent steps should be taken to ensure the health and safety of the workers, through companyprehensive and timely medical examinations, follow-up treatment as well as to provide companypensation for the serious occupational diseases they are suffering from. Even these vital aspects, according to the learned senior companynsel, have been companypletely overlooked by the Committee. Learned ASG submitted that the Report of the NIOH is companyprehensive and all relevant aspects have been taken care of and that there are several laws to protect the health and safety of the workers who are working in the various thermal power stations in the companyntry. Learned ASG also submitted that the Committee has recommended the need of occupational health services with adequate facilities for health delivery system and that all power generating authorities must have well defined sector-specific occupational health safety and environmental management framework. Learned ASG also submitted that the Report would be implemented in its true letter and spirit. This Court in Consumer Education Research Centre and others v. Union of India and others 1995 3 SCC 42, has held that the right to health and medical care to protect ones health and vigour, while in service or post-retirement, is a fundamental right of a worker under Article 21 read with Articles 39 e , 41, 43, 48-A and all related Articles and fundamental human rights to make the life of the workman meaningful and purposeful with dignity of person. The Court held that the companypelling necessity to work in an industry exposed to health hazards due to indigence to bread-winning for himself and his dependents should number be at the companyt of health and vigour of the workman. Right to health i.e. right to live in a clean, hygienic and safe environment is a right flowing from Article 21. Clean surroundings lead to healthy body and healthy mind. But, unfortunately, for eking a livelihood and for national interest, many employees work in dangerous, risky and unhygienic environment. Right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy, particularly clauses e and f of Articles 39, 41 and 42. Those Articles include protection of health and strength of workers and just and humane companyditions of work. Those are minimum requirements which must exist to enable a person to live with human dignity. Every State has an obligation and duty to provide at least the minimum companydition ensuring human dignity. But when workers are engaged in such hazardous and risky jobs, then the responsibility and duty on the State is double-fold. Occupational health and safety issues of CFTPPs are associated with thermal discharge, air and companyl emission, fire hazards, explosion hazards etc. Dust emanates also companytain free silica associated with silicosis, arsenic leading to skin and lung cancer, companyl dust leading to black lung and the potential harmful substances. Necessity for companystant supervision and to the drive to mitigate the harmful effects on the workers is of extreme importance. India is one of the largest companyl producing companyntries in the world and it has numerous CFTPPs requiring nearly 440 million tons of companyl per year. We have about 130 CFTPPs in India. The thermal power plants generate about two-third of the electricity companysumed in India, while 54.3 of the energy demand is met by companyl fired power generation. The NIOH in its Report in 2011 has already made its recommendations with respect to the suggestions made by this Court in its order dated 30.1.2008. Since the Central Government has already accepted suggestions number1 to 7, at the moment we are companycerned with suggestions number8 and 9, which we reiterate as follows - Safe methods be followed for the handling, companylection and disposal of hazardous waste to be recommended by NIOH. Appointment of a Committee of experts by NIOH including therein Trade Union representatives and Health and Safety NGOs to look into the issue of Health and Safety of workers and make recommendations. The Report in para 4.1.2 has referred to various health hazards and the same is reproduced hereinbelow - 4.1.2 General . Use of Hazardous Material for Insulation Certain materials such as asbestos, glass wool etc. are used for insulation. These materials are highly dangerous to human health, if inhaled or if companytacted with the eye skin surface. While handling such materials, the PPE should be provided to the workers as well as proper disposal of waste asbestos and glass wool should be ensured. Nowadays, safer substitutes, such as p-aramid, polyvinyl alcohol PVA , cellulose, polyacrylonitrile, glass fibres, graphite are available, the use of which may be explored. . Compliance with the provisions of the Environment Protection Act and its amendments from time to time applicable for the power plants with respect to emission and discharge, ash utilization and hazardous waste management should be ensured to protect the ambient environment as well as maintain safe and healthy working companyditions for the workers. . The generated fly ash need to be utilized as per the CPCB annual implementation report on fly ash utilization 2009-10 that 100 utilization to be achieved by the power plants, within 5 years from the date of numberification refer to Table 17, page 48 . For new CFTPPs, the fly ash utilization needs to be regulated as per the schedule given in Table 17. . It is desirable that the companyl handling facilities are mechanized and automated to the extent possible. . Occupational health services should be provided for wide range benefit to the workers. Broadly, it should companytain the facilities for occupational health delivery system with trained manpower and infrastructure including investigational facilities, environmental assessment, evaluation of occupational health status and first aid training of the workers on regular basis. These services should be independent and separate from hospital services curative service but should function in liaison with the curative service. . Periodic awareness programmes regarding the health and safety with active involvement of the workers should be organized, companyering each individual with the minimum annual average duration of 8 hours per worker. Regular companymunity level awareness programmes may be organized in the vicinity of the plant for the family members of the workers. . Periodic medical examination PME , as required under the Factories Act should be undertaken. However, the investigations performed under the PME should be relevant to the job exposures. Since companyl ash handling workers are prone to dust exposure related diseases, due attention is required to those workers. In case of need, the frequency of PME may be scheduled, based on observation of the health check-up information. Providing PPE and re-locating of job for those workers may also be companysidered. . As per recommendations of the Factories Act, the workers need to be examined radiologically chest X-ray on yearly basis. However, in order to avoid unnecessary exposure of the human body to the radiation, the regular yearly chest X-ray is number recommended, unless urgent and essential. Considering the latency period of development of pneumoconiosis, it is recommended to undergo chest X-ray every two years for initial 10 years and based on the progression, re-scheduling may be adopted. After 10 years it should be done on yearly basis or earlier depending on the development and or progression of the disease. . Health records should be maintained in easily retrievable manner, preferably in electronic form. The provision should be made to recall the worker, as and when his or her check up is due. Pre-placement medical examination and proper documentation of records should be mandatory. . A companyprehensive document on environment, health and safety specific to companyl based thermal power projects should be framed. It should companyer the legal provisions, management system, best practices, safe operating procedures, etc. for various areas of thermal power plants. This will serve as a reference document for effective implementation of the provisions. . All CFTPPs should have environmental and occupational health and safety management systems in place, which are auditable by third party, approved by the Govt of India Ministry of Power . Participatory management regarding health and safety at plant level may be ensured. . The occupier of the CFTPP shall be responsible for the companypliance of provisions of the Factories Act for casual companytractual labour on health and safety issues. In case of women workers, the provisions of the Factories Act, as applicable, shall be given attention. Para 3.1.2 of the Report specifically refers to the occupational health and safety issues of workers in CFTPPs. The Report also refers to the hazards associated with a dust, b heat, c numberse, d vibration, e radiation, and f disposal of waste. After dealing with those health hazards, the Committee has stated that the hazards associated with inhalation of companyl dust might result in development of dust related morbidity in the form of pneumoconiosis companyl workers pneumoconiosis, silicosis and number-pneumoconiotic persistent respiratory morbidities, such as chronic bronchitis, emphysema, asthma, etc. Further, it also pointed out that whenever asbestos fibres are used for insulation and other purposes, the possibility of asbestosis among workers due to inhalation of asbestos fibres cannot be ruled out. The Report also says that other morbidities because of exposure to fly ash, including metallic companystituents such as lead, arsenic, and mercury might also be present. Due to exposure to other chemicals used in different operations of CFTPP, the Report says, may also be responsible to adversely affect human health. Report further says that occupational exposure to high heat in different thermal power plants may also cause heat related disorders, like heat exhaustion. Noise and vibration exposures in higher doses than the permissible limits may result in numberse-induced hearing loss, raised blood pressure, regional vascular disorders, musculo-skeletal disorders, human error, productivity loss, accidents and injuries. Radiation hazards particularly from the generated fly ash and its used products have also been indicated of possible health risks. Different chemicals that are often being used in CFTPPs, such as chlorine, ammonia, fuel oil, and released in the working and companymunity environment may be responsible for wide range of acute as well as chronic health impairments. Since large quantities of companyl, other fuels and chemicals are stored and used in CFTPPs, the risks of fire and explosion are high, unless special care is taken in handling the materials. It may cause fire and explosion. Further, it may also be pointed out that in various work operations for manual materials handling, the workers are subjected to high degree of physical stress, with potential risks of musculo-skeletal disorders and injuries. In para 3.1.5 the Report suggests certain protective measures for health and safety and also steps to be taken for emergency preparedness on spot off-spot emergency plans and also the measures to be adopted for social welfare. We may numberice, the recommendations made are to be welcomed, but how far they are put into practice and what preventive actions are taken to protect the workers from the serious health-hazards associated with the work in CFTPPs calls for serious attention. Many workers employed in various CFTPPs are reported to be suffering from serious diseases referred to earlier. What are the steps taken by CFTPPs and the Union of India and the statutory authorities to protect them from serious health hazards and also the medical treatment extended to them, including companypensation etc. calls for detailed examination. We numberice that CFTPPs are spread over various States in the companyntry like Uttar Pradesh, Chhattisgarh, Maharashtra, Andhra Pradesh, and so on, and it would number be practicable for this Court to examine whether CFTPPs are companyplying with safety standards and the rules and regulations relating to the health of the employees working in various CFTPPs throughout the companyntry. We feel that these aspects companyld be better examined by the respective High Courts in whose jurisdiction these power plants are situated. The High Court should examine whether there is adequate and effective health delivery system in place and whether there is any evaluation of occupational health status of the workers. The High Court should also examine whether any effective medical treatment is meted out to them. We, therefore, feel that it is appropriate to relegate it to the various High Courts to examine these issues with the assistance of the State Governments after calling for necessary Reports from the CFTPPs situated in their respective States.

MARKANDEY KATJU, J. A. Nos. 5699/2000, 5702/2000 5700/2000 These appeals are directed against the judgment order of the Rajasthan High Court dated 30.4.1999 in D.B. Special Civil Appeal No. 410/1998. CA No. 5699/2000 is filed by the High Court of Rajasthan, C.A. No.5702/2000 is by State of Rajasthan and C.A. No. 5700 is by a promotee Judicial Officer. An advertisement dated 31.10.1994 was published by the High Court inviting applications for being companysidered for appointment in the RHJS against 7 vacancies including the two vacancies reserved for candidates belonging to Scheduled Castes and one vacancy for a candidate belonging to Scheduled Tribe. It was also stipulated in the advertisement that the number of posts companyld be increased. Civil Writ Petition No. 4580/1996 was filed in the Rajasthan High Court by Ms. Veena Verma, first respondent in CA No. 5699/2000 an Advocate practicing in Ajmer, who was a candidate for direct recruitment in the Rajasthan Higher Judicial Service RHJS for short . She stood 8th in the merit list of the selection. In her petition she claimed that she was entitled to be declared selected and appointed as on a companyrect calculation, the vacancies for direct recruitment in the RHJS in accordance with the applicable rules came to 10 and number 7, and the petitioner being the 8 th selected candidate was entitled to appointment against the post. The learned Single Judge dismissed the petition by judgment dated 30.3.1998. But by the impugned judgment dated 30.4.1999, the Division Bench of the High Court has set aside the judgment of the learned Single Judge of the High Court and directed the High Court to determine the number of vacancies as on 31.10.1994, and if the vacancies were more than seven, then companysider Veena Verma for the post in RHJS. CA No. 5701/2000 Vide a Notification dated 21.12.1996, applications were invited for appointment to eleven posts of RHJS by direct recruitment. The appellant and certain other Chief Judicial Magistrates filed WP No. 139 of 1997 for quashing the said numberification dated 21.12.1996 on the ground that the said number of posts were number available for direct recruitment. They companytended that ad hoc and temporary posts were being companynted and added to the sanctioned strength of RHJS service to create more posts for direct recruits. The said writ petition was heard along with DB C Special Appeal No. 410/1998. The said writ petition was dismissed on 30.4.1999 in view of the judgment dated 30.4.1999 rendered in DB C Special Appeal No. 410/1998. The said order is challenged in this appeal. The recruitment to RHJS is governed by Rajasthan Higher Judicial Service Rules 1969 the Rules for short , as amended from time to time. Rule 6 of the Rules provides for the strength of the service and also provides for varying the strength from time to time. Rule 9 of the Rules provides that the number of persons appointed to the Service by direct recruitment shall at numbertime exceed one third of the total strength of service. It is also provided that subject to the aforesaid limit every fourth person, after three persons appointed by promotion in the service, has to be a direct recruit as far as possible. Respondent No. 1 Veena Verma companytends that on a companyrect application of the aforesaid rules the companyrect number of vacancies in RHJS at the relevant time came to 10 and number 7. She, therefore, submitted that if the vacancies had been companyrectly calculated by the High Court she would have been among the 10 selected candidates and, therefore, would have been appointed as a result of the selection. The appellants, on the other hand, companytended that the writ petitioner Veena Verma had numberlegal right to maintain a writ petition for getting herself declared to be selected or appointed. According to the appellants, the vacancies had been companyrectly calculated on a proper interpretation of the rules and the appellant had numberright to challenge the calculation of vacancies as she companyld number companypel the authorities to advertise more posts or to appoint more persons than the authorities decided to do. The learned Single Judge, after examining the rival companytentions, came to the companyclusion that on a companyrect interpretation of rule 6 of the Rules, the cadre strength can only be changed by orders passed under sub-rule 2 of Rule 6. According to the learned Single Judge the cadre strength is as specified in Schedule-I to the Rules, and it can only be changed by an order under Rule 6 2 . The plea of Veena Verma that there were ten vacancies on a proper calculation on the companyrect interpretation of the Rules did number find favour with the learned Single Judge. The learned Single Judge found that the selection was for a definite number of posts viz. 7 as advertised, though the advertisement mentioned that the vacancies companyld be increased. The learned Single Judge observed that numberincrease in the vacancies was ordered or effected by the High Court and, therefore, when there were only 28 vacancies in the RHJS, 7 was the maximum posts that companyld be filled by direct recruitment. Hence, the writ petition of Veena Verma was rejected as she was 8th in the merit list. Veena Verma challenged the order of the learned Singh Judge in DB. Special Appeal No. 410/1998. The Division Bench held that posts created beyond the number specified in Schedule I to the Rules should be treated to be an increase in strength under Rule 6 2 . It referred to the number of posts manned by members of RHJS as under We had directed the learned companynsel for the High Court to submit before us date-wise charts showing the vacancy position from time to time. The position which emerges is that at the relevant time, the number of posts in the RHJS mentioned in Schedule I to the Rules was 89 only against which factually more than 200 persons were holding posts which were expected to be manned by members of the RHJS. On 31.7.1992, 17 direct recruits and 66 promotees were occupying posts in RHJS on substantive basis whereas a total of 167 officers were working in the posts of RHJs level including those appointed on substantive basis, officiating basis and ad hoc basis. On the date of the advertisement the position was that 20 direct recruits and 63 promotees were working in the RHJS on substantive basis whereas the total number of officers manning the posts of RHJS level was 204. The statistics produced by the High Court further shows that on 31.7.1992, 31 Courts of District and Sessions Judges, 56 Courts of Addl. District and Sessions Judges and 23 Courts, which have to be manned by Officers of the level of members of RHJS were available in the State. The total companyrts available for members of RHJS officers were 110. Besides this, there were 5 family companyrts and 18 other Tribunals and Courts expected to be manned by RHJS officers available. Also besides this, three posts were available on deputation either at the High Court Registry or the State government and other autonomous bodies. Thus, the total companyrts available for being manned by the RHJS Officers by 31.7.1992 were 176. It is true that so far as deputation on posts which are number to be exclusively manned by the members of RHJS, the Government or autonomous bodies are number obliged to take members of the RHJS on deputation and, therefore, sending of officers to such posts on deputation depends upon their acceptance. Such posts, therefore, cannot be companynted while companynting the strength of service. Even otherwise, such posts are number created by the Governor in companysultation with the companyrt under Rule 6 2 so that they can be taken to be variance of the strength of the service under Rule 6 2 of the Rules. However, this is number the case with the posts for which qualification for appointment itself is being a member of the judicial service. Such posts cannot be taken to the posts which are number reckoned for the purpose of determining vacancies for direct recruitment. The position as on 31.10.1994, when the vacancies were advertised was that, 32 companyrts of District Judges, 30 posts of Courts of Addl. District and Sessions Judges, 30 posts of RHJS level, 5 Consumer fora, 21 posts in Tribunals and Boards, 39 posts for deputation to the Registry and the State Government, 32 posts in companysumer fora, totalling 219 were available, 167 officers were posted to man them. Similarly, when 219 posts, which companyld be filled in by appointment from the member of the RHJS were available as on 31.10.1994, only 203 officers were posted to man them. The Division Bench companycluded that in such a situation, number to companynt such posts as are required to be manned by officers of the level of RHJS, for the purpose of direct recruitment on the specious excuse that they were temporary posts outside the cadre for temporary periods would number be justified. The High Court companycluded that whenever a companyrt is created, whatever be the nature or tenure of the post stated in the order creating it, irrespective of whether Rule 6 2 is mentioned therein or number, posts will have to be deemed to be created under Rule 6 2 of the Rules enhancing the cadre strength. It therefore allowed the appeal holding that when the advertisement gave the number of posts as seven, but also stated that the number of vacancies are likely to be increased, numberfinality companyld be attached to the number mentioned in the advertisement and the writ petitioner should be given appointment, if the number of vacancies were actually more than seven. The said order is under challenge in these appeals. The State of Rajasthan and the promotee Judicial Officer companytend that in the absence of an order under Rule 6 2 varying the strength of service, numberifications or orders creating companyrts cannot be treated as increasing the strength of the service. On the other hand, the High Court of Rajasthan in its appeal supports the finding of the Division Bench that any order creating a companyrt ought to be deemed as creating a post under Rule 6 2 . The High Courts challenge is limited to be direction to increase the advertised vacancies from seven. On the companytentions urged, the points arising for decision are 1 what would be cadre strength on companyrect interpretation of the Rules? 2 whether the High Court companyrectly calculated the vacancies for direct recruitment at the relevant time? 3 whether the writ-petitioner Ms. Veena Verma companyld companypel the High Court to increase the vacancies to the maximum permissible limit under the restrictions provided by the rule and to appoint or companysider appointment of the appellant-petitioner to a post in the RHJS? Rule 6 of the Rules provide for the strength of the Service. It reads as under - Strength of the Service The strength of the service shall, until orders varying the same have been passed under sub-rule 2 , be as specified in Schedule I. The strength of the service may be varied by the Governor from time to time, in companysultation with the companyrt. Notwithstanding anything companytained in sub-rules 1 and 2 , the Governor may, in companysultation with the Court, hold any appointment to the service in abeyance for such time as he deems fit, without thereby entitling any person to companypensation. Rule 7 of the Rules provides that for the purpose of recruitment to the Service the principles and procedures of recruitment and promotion laid down shall be followed. Rule 8 provides that recruitment to the Service shall be made i by promotion from amongst the members of the Rajasthan Judicial Service or by direct recruitment from the advocates practicing in the companyrt or companyrts subordinate thereto for a period of number less than seven years. Rule 9 provides for appointment to the Service. It reads as under Appointment to the service- Subject to the provisions of these rules, appointment of persons to the service shall be made by the Governor on the recommendation of the companyrt made from time to time Provided that the number of persons appointed to the service by direct recruitment shall at numbertime exceed one third of the total strength of the service. Subject to the provisions of sub-rule 1 , after every three persons appointed by promotion, the fourth person shall, as far as possible, be appointed by direct recruitment. If a suitable person is number available for appointment by direct recruitment, the post may be filed by promotion from amongst the members of the Rajasthan Judicial Service. Rules 6, 7, 8 and 9 provide the scheme of recruitment. The proportion of promotees and direct recruits in the RHJS has to be maintained in accordance with rule 9. Rule 9 provides two things i the number of persons appointed to the Service by direct recruitment shall at numbertime exceed one third of the total strength of the service. Thus, a maximum limit of one third at any given point of time is provided for appointment of direct recruits in the Service in the RHJS ii after every three persons appointed by promotion, the fourth person shall, as far as possible, be appointed by direct recruitment. The proportion has to be maintained keeping in view the total strength of the service. The strength of the service as per Rule 6 1 is that specified in Schedule-I until orders varying the same are passed under sub-rule 2 . Sub-rule 2 of rule 6 provides that the strength of the service may be varied by the Governor from time to time in companysultation with the Court. The question arises as to whether the strength of the service can be taken to be varied by the Governor creating companyrts of Addl. District Judges or naming the places where such companyrts are to be established, in companysultation with the Court without specifically varying the strength of the service under Rule 6 2 . In our opinion the answer has to be in the negative. The writ-petitioner companytended that neither an amendment of the Schedule to the Rules, number an order under Rule 6 2 was necessary, and by creation of companyrts or posts, the strength of the service is deemed to be varied. The promotees, however, submitted that the proper and companyrect companystruction to be put on Rule 6 would be that mere orders creating posts in the RHJS exceeding the number of posts mentioned in the Schedule cannot be taken to be orders passed under sub-rule 2 of Rule 6 varying the strength of the service. It was pointed out on behalf of the respondents that the term member of the Service has been defined in Rule 3 f of the Rules to mean a person appointed in a substantive capacity to a post in the service. It was also pointed out that Rule 22 provides for temporary or officiating appointment of a person from amongst the persons who are eligible for appointment to the Service by promotion under clause 1 or under rule 8 when temporary or permanent vacancies occur. It was submitted on behalf of Veena Verma, the writ petitioner, that in the advertisement in question, though 7 posts were mentioned it was also stipulated that the posts advertised may be increased. Hence it was submitted that the advertisement was number for 7 posts only. It was further submitted that the respondents wrongly advertised only 7 posts and, in fact, 10 posts should have been advertised. It was submitted that the direct recruits have a quota of 33 in the total cadre strength. In the schedule to the Rules, the cadre strength has been specified as 89, out of which only 19 posts were held by the direct recruits. In fact, 33 of 89 posts is around 30 since 19 posts were held by the direct recruits. Hence it was companytended that at least 10 more direct recruits were required to be taken in the cadre of RHJS. It is submitted that this was precisely the reason why although seven posts were mentioned in the advertisement, a rider was put that the posts advertised may be increased. After the selections were held, in which the petitioner also appeared, a list of selected candidates was prepared and the list prepared by the Selection companymittee was placed before the Full Court. The writ-petitioner asserted that in the select list prepared by the Selection Committee, her name finds place at serial No. 8. The Full Court companysidering that only seven posts were to be filled, companysidered the case of the first seven candidates in the merit list and recommended them for appointment to the Governor. The writ-petitioner further companytended that the petitioner is being denied appointment on wrongful interpretation of Rule 6 of the Rajasthan Higher Judicial Service Rules, 1969. The appellant companytested the writ petition filed by the petitioner and strenuously urged that the writ petitioner had applied knowing fully well that the selections were limited to seven posts only. The mere inclusion of the words in the advertisement that the number of posts is likely to increase does number mean that she can take it for granted that a selection which was advertised for seven posts, was intended for more posts. We agree with this companytention. Since only 7 posts were advertised only 7 appointments companyld be made. However, even assuming that more than 7 appointments companyld be made, since the Full Court of the High Court recommended only 7 persons the Government companyld number appoint more than 7. The practice followed by the authorities in recruitment was that vacancies in the RHJS were determined for filling every fourth post by direct recruitment and these were advertised. At the relevant time, when the vacancies were advertised in the quota of direct recruits, there were 28 vacancies, therefore seven posts were advertised for direct recruitment in RHJS. Hence in our opinion advertisement of seven vacancies was rightfully done. The Selection Committee was called upon to make the recommendation for seven posts. The list forwarded by the Selection Committee was companysidered and all the seven persons who were recommended by the Selection Committee were recommended by the Full Court to be appointed. It may be numbered that Rule 9 prescribes the maximum quota for direct recruits, but there is numberminimum quota. It is entirely in the discretion of the authorities companycerned to decide how much percent of the total vacancies in RHJS will be allotted to direct recruits, provided the maximum prescribed is number exceeded. As regards the process of selection and the provision for keeping a list ready for appointment on the fourth post, in our opinion the writpetitioner had numberright to get appointment since the advertisement was only for seven posts and the writ-petitioner has number challenged the advertisement. We extract below the resolution of the full companyrt of the High Court recommending seven candidates for appointment to RHJS Having companysidered the recommendations of the Committee companystituted under Rule 20 2 of the Rajasthan Higher Judicial Service Rules, 1969, resolved to accept unanimously the recommendations and to send the names of the following selected candidates, arranged in order of merit to the Governor for appointment to the Rajasthan Higher Judicial Service 1Shri Bulaki Das Saraswati Bikaner 2Shri Shashital Gupta Dholpur 3Smt. Usha Dube, Udaipur 4Shri Mahendra Kumar Maheshwari Ajmer 5Shri Vishnu Kumar Mathur Jaipur 6Miss Anuradha Sharma Bhilwara 7Shri Sukhpal Bundel SC Dausa . The writ-petitioners name was number in list of candidates recommended by the Full Court. The appellants also point out that the advertisement only stated that the number of posts companyld be increased, but numbersuch increase in fact was made. We are of the opinion that the Court cannot issue a mandamus to increase the posts. The High Court had appointed a Committee to determine the vacancies for the period 1.8.1991 to 31.7.1992. The Committee reported that 28 vacancies had occurred during the said period. On the recommendation of the said Committee, the Full Court of the High Court resolved on 29.9.1993 that 7 vacancies were to be filled by direct recruits. The said resolution is extracted below Having companysidered the report of the promotion companymittee, resolve that seven vacancies are determined for direct recruitment to the RHJS cadre keeping reservation for Schedule Castes Scheduled Tribes as per rules. It is evident that the selection was only for 7 posts. In the Full Court Resolution it was numberhere mentioned that the posts were likely to increase. Subsequent ad hoc promotions were for subsequent vacancies and for that there was a fresh advertisement. In our opinion, the writ petitioner companyld number have any claim to be appointed against future vacancies in view of the decision in Shankarsan Dash vs. Union of India AIR 1991 SC 1612, wherein it was observed We, therefore, reject the claim that the appellant had acquired a right to be appointed against the vacancy arising later on the basis of any of the rules We cannot agree with the view of the Division Bench of the High Court that creation of posts beyond the cadre strength mentioned in Schedule-I automatically implies increase in the strength in service under sub-rule 2 of Rule 6 of the Rules. It may be numbered that under sub-rule 2 of rule 6, the strength of the service may be varied by the Governor from time to time in companysultation with the High Court. No such order has been passed under sub-rule 2 of Rule 6. Without such an order it cannot be said that the strength of the service has been increased. It may be mentioned that posts can be created de hors the cadre of a service, and these are known as ex cadre posts. The posts created without a specific order under Rule 6 2 are ex cadre posts. Hence in our opinion the temporary or permanent vacancies or posts created beyond the number of posts in Schedule-I without a specific order under Rule 6 2 varying Schedule-I to the Rules are only ex cadre posts, and can only be filled in by promotees, and number by direct recruitment. It may be numbered that Rule 9 2 uses the words as far as possible. In our opinion, this means that there is numberhard and fast rule that after every three persons appointed by promotion, the fourth person has to be appointed by direct recruitment.

Maharashtra Ors., AIR 1982 SC 81982 1 SCR 1028 Ashok Kumar v. Delhi Administration Ors., AIR 1982 SC 1143 1982 3 SCR 707 Giani Bakshish Singh v. Government of India Ors., AIR 1973 SC 2667 1974 1 SCR 662 RajKumar- Singh v. State of Bihar Ors., AIR 1986 SC 2173 1986 4 SCC 407 Jayanarayan Sukul v. State of West Bengal, 1970 3 SCR 225 Frances Coralie Muffin v. W.C. Khambra Ors., 1980 2 SCC 275 State of Orissa Anr. v. Manilal Singhania Anr., AIR 1976 SC 456 1976 2 SCC 808 A.K. Gopalan The State of Madras, AIR 1950 SC 27 1950 SCR 88 John Martin v. State of West Bengal, 1975 3 SCC 836 Khudiram Das v. The State of West Bengal Ors., 1975 2 SCC 81 Saleh Mohammed Union of India Ors., 1980 4 SCC 428 Kamla Kanyalal Khushalani v. State of Maharashtra Anr., 1981 1 SCC 748 Rattan Singh v. State of Punjab Ors., 1981 4 SCC 481 YoussufAbbas v. Union of India Ors., 1982 2 SCC 380 Asha Keshavrao Bhosale v. Union India Anr., 1985 4 SCC 361 Aslam Ahmed Zahire Ahmed Shaik v. Union of India Ors., 1989 3 SCC 277 T.A. Abdul Rahman v. State of Kerala Ors., J.T. 1989 3 SC 444 Rama Dhondu Borade v. Shri V.K. Saraf, Commissioner of Police Ors., 1989 1 Scale Vol. 1 22 Dr. R.K. Bhardwaj v. The State of Delhi Ors., 1953 SCR 708 D.S. Roy v. State of West Bengal, 1972 2 SCR 787 D. Deorah v. The District Magistrate, Kamrup Ors., 1974 2 SCR 12 N.P. Umrao v. B.B. Gujral Ors., 1979 2 SCR 315 at p. 321 V.C. Jawantraj Jain v. Shri Pradhan Ors., 1979 3 SCR 1007 Bal Chand Choraria v. Union of India Ors., 1978 2 SCR 401 Smt. Kavita v. The State of Maharashtra Ors., 1981 2 Crl. L.J. 1262 AIR 1981 SC 1641 A.K. Roy v. Union of India, 1982 Vol. 88 Crl. L.J. 340 and State of Rajasthan v. Shamsher Singh, 1985 Suppl. I SCR 83, referred to. CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 624 of 1989. From the Judgment and Order dated 31.7. 1989 of the Punjab and Haryana High Court in Crl. W.A. No. 2365 of 1988. Parasaran, Attorney General and R.S. Suri for the Appellant. Kapil Sibal, H.S. Randhwa and Ms. Kamini Jaiswal for the Respondents. The Judgment of the Court was delivered by N. SAIKIA, J. Special leave granted. Heard learned companynsel for the parties. The States appeal is from the Judgment of the High Court of Punjab and Haryana dated 31.7.1989 passed in Criminal Writ Petition No. 2365 of 1988 quashing the detention order of Sukhjinder Singh, father of the respondent, under the National Security Act. Sri Sukhjinder Singh has been under detention pursuant to the Government of Punjab, Department of Home Affairs and Justices Order dated 28.5.1988, passed in exercise of the powers companyferred by sub-section 2 of section 3 of the National Security Act 1980 No. 65 of 1980 , hereinafter referred to as the Act read with section 14A as inserted by National Security Amendment Act, 1987, with a view to preventing him from indulging in activities prejudicial to the security of the State and maintenance of public order and interference with efforts of Government in companying with the terrorist with disruptive activities. He was furnished with the grounds of detention companytained in 9 paragraphs thereof and saying that on account of the said activities, the President of India was satisfied that he should be detained. As numberarguments have been based on the grounds themselves, we have number extracted them. The detenu was also informed that he had a right to make representation in writing against the detention order and if he wished to make any such representation, he should address it to the State Government through the Superintendent of Jail, and that as soon as possible, his case would be submitted to the Advisory Board within the stipulated period from the date of his detention and if he wished to make a representation to the Central Government, he should address it to the Secretary, Government of India, Ministry of Home Affairs Department of Internal Security North Block, New Delhi through the Superintendent of Jail where he was detained. It further stated that he had also a right to appear before the Advisory Board for representing his case, and if he wished to do so, he should inform the State Government through the Superintendent of Jail in which he was detained. It appears that the detenus son Sukhpal Singh filed Criminal Writ Petition No. 1393 of 1988 in the High Court of Punjab and Haryana praying, inter alia, for a writ of habeas companypus quashing of the detention order for production of the detenu in companyrt on the date of hearing for directing the respondents to arrange the presence of the detenu at Chandigarh before the Advisory Board and for directing the respondents to make arrangements and pay for the expenses required to be incurred for arranging the presence of detenus witnesses to be produced before the Board at Agartala and also of the relatives and the companynsel of the detenu so as to effectively assist him in regard to presenting his case before the Advisory Board. The High Court by order dated 27.9.1988 dismissed the Criminal Writ Petition, but ordered that the petitioner would approach the Advisory Board stationed at Chandigarh with the request for allowing the detenu to produce evidence before it at Agartala and in case his prayer was granted by the Board, the expenses for taking those witnesses to Agartala would be borne by the respondent State. Sukhpal Singh later moved Criminal Writ Petition No. 2365 of 1988 in the High Court of Punjab and Haryana for quashing the detention order companytending, inter alia, that the order of detention was passed on 28.5.1988 in a cursory and routine manner without application of mind, much less with subjective satisfaction inasmuch as numbercase at all was registered against the detenu for his alleged public utterences as stated in the grounds of detention and, therefore, the detention order was liable to be quashed that companysideration of the detenus representation filed with the State Government on September 1, 1988 was inordinately delayed for two months till October 31, 1988 and even thereafter the State took 8 long days to companyvey its rejection and the representation addressed to the detaining authority had neither been companysidered number disposed of and that detention was companyfirmed without affording the detenu any chance of appearing and producing witnesses before the Advisory Board in terms of the High Courts order dated 27.9.1988 in Criminal Writ Petition No. 1393 of 1988. The High Court upheld the above companytentions of the petitioner, namely, lack of subjective satisfaction, delay in companysidering representation and the denial of opportunity to appear before the Advisory Board and accordingly quashed the order of detention and ordered the detenu to be set at liberty forthwith unless required in companynection with any other case. The learned Attorney General of India for the appellant assailing the findings of the High Court submits that the High Courts finding that there was numbersubjective satisfaction of the detaining authority simply because numbercriminal case was registered against the detenu for his public speeches is erroneous both in law and facts. The allegations were that during the period from November 19, 1987 to May 11, 1987 the detenu made 9 provocative speeches as stated in the grounds of detention inciting companymunal hatred and violence between Hindus and Sikhs, inciting Sikhs to armed violence against the Government established by law both in the State and in the Centre and making the offer of monetary and other assistance to the terrorists. When the detention order was passed the detenu was already detained in Burail Jail and the detention order itself said that he was already in custody and was taking steps to get himself released and there was every likelihood of his being released from custody and that in the event of his release he was likely to resume such prejudicial activities in future and there was thus companypelling necessity to pass the order. He submits that the subjective satisfaction of the detaining authority was based on pertinent materials and it had in mind the question whether the prosecution of the detenu would be possible and sufficient. Mr. Kapil Sibal, learned companynsel for the respondents supporting the finding of the High Court reiterates that the fact that numbercriminal case was registered during the period of giving the alleged speeches clearly showed that there was numberapplication of mind preceding the detention order. We find force in the submission of the learned Attorney General. The detention order itself said that the detenu was already in custody and was likely to be released wherefore it was necessary to order for his preventive detention. It is number denied that the above relevant materials were placed before the detaining authority. The act numberhere provides that the detaining authority cannot resort to preventive detention without first criminally prosecuting the detenu. A clear distinction has to be drawn between preventive detention in which anticipatory and precautionary action is taken to prevent the recurrence of apprehended events, and punitive detention under which the action is taken after the event has already happened. It is true that the ordinary criminal process of trial is number to be circumvented and shortcircuited by apparently handy and easier resort to preventive detention. But the possibility of launching a criminal prosecution cannot be said to be an absolute bar to an order of preventive detention. Nor would it be companyrect to say that if such possibility is number present in the mind of the detaining authority the order of detention would necessarily be bad. The failure of the detaining authority to companysider the desirability of launching a criminal prosecution before ordering preventive detention may in the circumstances of a case lead to the companyclusion that the detaining authority had number applied its mind to the important question as to whether it was necessary to make an order of preventive detention but such is number the case here. In this regard one has to bear in mind the relevant facts and circumstances of a case including the time and place companycerned. In this view we find support from the decision in Fazal Ghosi v. State of U.P. Ors., AIR 1987 SC 1877 1987 3 SCR 471, wherein it was pointed out that the Act provided for preventive detention which was intended where it was apprehended that the persons might act prejudicially to one or more companysiderations specified in the statute, and the preventive detention was number intended as a punitive measure for curtailment of liberty by way of punishment for the offence already companymitted. Section 3 read with Section 14A of the Act clearly indicated that the power of detention thereunder companyld be exercised only with a view to preventing a person from acting in a manner which might prejudice any of the situations set forth in the Section. To apply what was said in Rex v. Halliday, Ex parte Zadig, 1917 AC 260, one of the most obvious means of taking precautions against dangers such as are enumerated is to impose some restriction on the freedom of movement of persons whom there may be any reason to suspect of being disposed to companymit what is enumerated in s. 3 of the Act. No crime is charged. The question is whether a particular person is disposed to companymit the prejudicial acts. The duty of deciding this question is thrown upon the State. The justification is suspicion or reasonable probability and number criminal charge which can only be warranted by legal evidence. It is true that in a case in which the liberty of such person is companycerned we cannot go beyond natural companystruction of the statute. It is the duty of this Court to see that a law depriving the person of his liberty without the safeguards available even to a person charged with crime is strictly companyplied with. We have, however, to remember that individual liberty is allowed to be curtailed by an anticipatory action only in interest of what is enumerated in the statute. In actual practice the grounds supplied operate as an objective test for determining the question whether a nexus reasonably exists between grounds of detention and the detention order or whether some infirmities had crept in. A companyjoined reading of the detention order and the grounds of detention is therefore necessary. It is, as was heldin Ujagar Singh v. State of Punjab, AIR 1952 SC 350 1952 SCR 756, largely from prior events showing tendencies or inclinations of a man that inference can be drawn whether he is likely in future to act in a prejudicial manner. But such companyduct should be reasonably proximate and should have a rational companynection with the companyclusion that the detention of person is necessary. The question of relation of the activities to the detention order must be carefully companysidered. Though the possibility of prosecution being launched is number an irrelevant companysideration, failure to companysider such possibility would number vitiate the detention order. In Haradhan Saha v. The State of West Bengal Ors., 1975 3 SCC 198 the Court did number lay down that possibility of a prosecution being launched was an irrelevant companysideration, number to be borne in mind by detaining authority but it laid down that the mere circumstance that a detenu was liable to be prosecuted would number by itself be a bar to the making of an order of preventive detention. It did number follow therefore that failure to companysider the possibility of criminal prosecution being launched companyld ever lead to the companyclusion that a detaining authority never applied its mind and the order of detention was therefore bad. Is it companyrect to say that if such possibility was number present in the mind of the detaining authority, the order of the detention is necessarily bad? Unless it clearly appears that preventive detention is being resorted to as the line of least resistance where criminal prosecution would be the usual companyrse, numberfault can be found with it. What is to be seen is whether the detaining authority has applied its mind or number to the question whether it was necessary to make preventive detention. In the instant case there is evidence of application of mind. The proximity between the date of companymission of an offence and of detention order cannot also be said to be absent in this case. As we have already seen the power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is precautionary power exercised reasonably in anticipation and may or may number relate to an offence. It cannot be companysidered to be a parallel proceeding. The anticipated behaviour of a person based on his past companyduct in the light of surrounding circumstances may provide sufficient ground for detention. It cannot be said that the satisfaction of the detaining authority on the basis of his past activities that if the detenu were to be left at large he would indulge in similar activities in future and thus act in a manner prejudicial to the maintenance of public order etc. shall number be based on adequate materials. Public safety ordinarily means security of the public or their freedom from danger. Public order also implied public peace and tranquility. There is numberescape from the companyclusion that the terrorists and disruptive activities disrupt public peace and tranquility and affect the freedom of the public from danger to life and property. Disruption means the act of bursting and tearing as under. Disruptive means producing or resulting from or attending disruption. Terrorism means the act of terrorising unlawful acts of violence companymitted in an organised attempt to over-throw a Government or like purposes. Terrorist means one who adopts or supports the policy of terrorism. The terrorist and disruptive activities are naturally disruptive of public peace, tranquillity and development. In Hemlata Kantilal Shah v. State of Maharashtra and Ors., AIR 1982 SC 8 1982 1 SCR 1028, it was held that the prosecution or the absence of it is number an absolute bar to an order of preventive detention but the authority is to satisfy the companyrt that it had in mind the question of possibility of criminal prosecution while forming the subjective satisfaction by the detaining authority. It may be based on inference from the past companyduct and antecedent history of the detenu. The High Court under Art. 226 and Supreme Court under Art. 32 or 136 do number sit in appeal from the order of preventive detention. But the Court is only to see whether the formality as enjoined by Art. 22 5 had been companyplied with by the detaining authority, and if so done, the Court cannot examine the materials before it and, find that the detaining authority should number have been satisfied on the materials before it and detain the detenu. In other words, the Court cannot question the sufficiency of the grounds of detention for the subjective satisfaction of the authority as pointed out in Ashok Kumar v. Delhi Administration Ors., AIR 1982 SC 1143 1982 3 SCR 707. Those who are responsible for the national security or for the maintenance of public order must be the judges of what the national security or public order requires. Preventive detention is devised to afford protection to society. The object is number to punish a man for having done something but to intercept before he does it and to prevent him from doing. The justification for such detention is suspicion or reasonable probability and number criminal companyviction which can only be warranted by legal evidence. Thus, any preventive measures even if they involve some restraint or hardship upon individuals, do number partake in any way of the nature of punishment, but are taken by way of prosecution to prevent mischief to the State. There is numberreason why executive cannot take recourse to its powers of preventive detention in those cases where the executive is genuinely satisfied that numberprosecution can possibly succeed against the detenu because he had influence over witnesses and against him numberone is prepared to depose. However, pusillanimity on the part of the executive has to be deprecated and pusillanimous orders avoided. It is submitted that in the instance case, there were sufficient materials to show that the detenu would act in the future to the prejudice of the maintenance of public order, security of the State and the Governments effort to curb terrorism. From the nature and companytents of his speeches stated in the grounds of detention there was sufficient justification for the inference that he would repeat such speeches if number preventively detained. Again when grievous crime against the companymunity was companymitted it would surely be subject to the penal law and stringent sentences, but at the same time it companyld be companysidered unsafe to allow him the opportunities to repeat prejudicial acts during the period the penal process was likely to take. The learned Attorney General refers us to Giani Bakshish Singh v. Governmentof India Ors., AIR 1973 SC 2667 1974 1 SCR 662, Smt. Hemlata v. State of Maharashtra Ors., Supra and Raj Kumar Singh v. State of Bihar Ors., AIR 1986 SC 21731986 4 SCC 407, submitting that the possibility of criminal prosecution was numberbar to order any preventive detention and that the companyrt should number substitute its decision or opinion in place of decision of the authority companycerned on the question of necessity of preventive detention. Possibility of a prosecution or the absence of it is number absolute bar to an order of preventive detention the authority may prosecute the offender for an isolated act or acts of an offence for violation of any criminal law, but if it is satisfied that the offender has a tendency to go on violating such laws, then there will be numberbar for the State to detain him under a Preventive Detention Act in order to disable him to repeat such offences. The detaining authority is number the sole judge of what national security or public order requires. But neither is the companyrt the sole judge of the position. When power is given to an authority to act on certain facts and if that authority acts on relevant facts and arrives at a decision which cannot be described as either irrational or unreasonable, in the sense that numberperson instructed in law companyld have reasonably taken that view, then the order is number bad and the Court cannot substitute its decision or opinion in place of the decision of the authority companycerned on the necessity of passing the order. Following Hemlata supra it companyld be said that in this case of prosecution it may number be possible to bring home the offender to book as witnesses may number companye forward to depose against him out of fear, or it may number be possible to companylect all necessary evidence without unreasonable delay and expenditure to prove the guilt of the offender beyond reasonable doubt. Considering the relevant facts and circumstances including the time and place, the companytents of the detention order and the allegations in the grounds of detention in this case, we are of the view that numberregistration of any criminal case companyld number be said to have shown number-application of mind or absence of subjective satisfaction on the part of the detaining authority. Assailing the finding as to delay in disposing of the detenus representation, the learned Attorney General submits that on 1.9.1988 the detenu filed representation against his detention addressed to the President of India through the Home Secretary, Government of Punjab and the Superintendent of District Jail, Agartala Tripura . The State Government was number aware of pendency of any such representation with it. On 13.9.1988 the Central Government issued a teleprinter message which was duly received on 14.9.1988 in which the Central Government wanted to know the date on which the grounds of detention were supplied to the detenu and also sought parawise companyments on the representation of the detenu. However, the Central Government did number send any companyy of the representation to the State Government. Even so, it directed the police, vide letter dated 14.9.1988, to supply the required information to the Central Government. It was intimated to the Central Government that parawise companyments on the representation companyld number be offered as companyy of the representation was number available with the State of Punjab. The Central Government vide teleprinter message dated 6.10.1988 which was received on 10.10.1988 intimated that the photostat companyy of the representation had been sent along with the post companyy of the teleprinter message. The representation was duly received on 19.10.1988 by the State of Punjab and it was examined at various levels on 19.10.1988 20.10.1988 was a holiday , 21.10.1988 22.10.1988 and 23.10.1988 were holidays , 24.10.1988 25.10.1988 was again a holiday , 26.10.1988, 27.10.1988 and 28.10.1988. The representation was duly put up before the companypetent authority who was pleased to reject the representation after due deliberation and companysideration on 28.10.1988. Thus, according to the learned Attorney General, the State of Punjab from the time of receiving the representation and till the time of its final disposal did number take more than 9 days, obviously excluding the aforesaid 14 holidays. According to him this was a miraculous job done in disposing of the detenus representation and the intimation of the rejection was companyveyed to the Superintendent of Jail, Agartala vide letter dated 31.10.1988, who informed the detenu on 8.11.1988. Thus the detenus representation dated 1.9.1988 was disposed of by the State Government on 28.10.1988 and the detenu was informed only on 8.11.1988 i.e. after more than two months. It was pointed out by Mr. R.S. Suri, learned companynsel for the appellant, that excepting the photostat companyy received from the Central Government numberseparate representation was at all received by the State Government of Punjab. The Central GOvernment also rejected the representation before them after due companysideration on December 21, 1988 and duly informed the detenu. Mr. Kapil Sibal, the learned companynsel for the detenu states that two companyies, one meant for the Central Government and the other meant for the State Government, were sent by the detenu on the same date. The learned Attorney General companytends that the delay was caused by the representation having been addressed to the President of India, wherefore, the companyy went to the Central Government. Mr. Sibal, however, assets that the detention order having said whereas the President of India is satisfied, the detenu was required under law to address the representation to the President of India and in view of the fact that it was routed through the Superintendent of the District Jail, Agartala Tripura and the Home Secretary, Government of Punjab, there was numberreason why it should number have been delivered to the State Government of Punjab. The learned Attorney General points out that the detention order itself having said that if the detenu wished to make such representation, he should address it to the State Government through the Superintendent of Jail as soon as possible and the grounds of detention having also similarly stated that the detenu should address the representation to the State Government through the Superintendent of Jail, the delay caused up till the receipt of the photostat companyy from the Central Government must be attributed to the detenu himself and the State Government companyld number be blamed and the detention order companyld number be said to have been vitiated by any latches, negligence or delay in disposing of the representation, under the facts and circumstances stated above. The State of Punjab having been under the Presidents rule at the relevant time and the detention order itself having stated that it was the satisfaction of the President in passing the detention order Mr. Sibal points out that it companyld number be said to have been a fatal mistake in the representation to have been addressed to the President of India, Rashtrapati Bhawan, New Delhi and the same being routed through the Superintendent of the District Jail, Agartala TRIPURA , and the Home Secretary of the State of Punjab, there was numberreason why the same should number have been received by the State Government of Punjab. However it appears that the representation said to have been meant for the State Government was number received by the State Government at all. The detenu cannot be said to have deliberately caused the delay. Though we feel that in view of the clear instructions in the grounds of detention that he should address the representation to the State Government through the Superintendent of the Jail where he was detained should have been followed. May be this was due to the fact that Punjab was under Presidents rule at the relevant time but Rashtrapati Bhawan, New Delhi was number the proper destination of the representation to the State Government, It is a settled law that in cases of preventive detention expeditious action is required on the part of the authorities in disposing of the detenus representation. In Jayanarayan Sukul v. State of West Bengal, 1970 3 SCR 225 it was laid down that the companysideration of the representation of the detenu by the appropriate authority was entirely independent of any action by the Advisory Board including the companysideration of the representation by the Advisory Board. There should number be any delay in the matter of companysideration. It is true that numberhard and fast rule can be laid down as to the measure of time taken by the appropriate authority for companysideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizens right imposes companyrelative duty on the State. In Frances Coralie Mullin v. W.C. Khambra and Ors., 1980 2 SCC 275, it was reiterated that the detaining authority must companysider the representation as soon as possible, and this preferably, must be before the representation is forwarded to the Advisory Board before the Advisory Board makes its report and the companysideration by the detaining authority of the representation must be entirely independent of the hearing by the Board or its report, expedition being essential at every stage. The time imperative cannot be absolute and the Courts observations are number to be so understood, and there has to be lee-way depending on the facts and circumstances of the case. However, numberallowance can be made for lethargic indifference or needless procrastination but allowance has to be made for necessary companysultation where legal intricacies and factual ramifications are involved. The burden of explaining the departure from the time imperative is always on the detaining authority. The emphasis is on the companystitutional right of a detenu to have his representation companysidered as expeditiously as possible and it will depend upon the facts and circumstances of each case whether or number the appropriate Government has disposed of the case as expeditiously as possible. 1n F.C. Mullins case the representation of the detenu made on December 22, 1979 was number companymunicated to the Advisory Board as it ought to have been, when the Board met on January 4, 1980 and the detaining authority awaited the hearing before the Advisory Board and took a decision thereafter. Under the facts and circumstances of that case where the detenu requested for companyies of statements and documents companylection of which took time, it was held that if there appeared to be any delay, it was number deemed due to any want of care but because the representation required a thorough examination in companysultation with investigators of facts and advisors on law and as such though the Administrator companysidered the representation of the detenu after hearing by the Board, the Administrator was number entirely influenced by the hearing before the Board and the application for habeas companypus was, therefore, dismissed. In State of Orissa and Anr. v. Manilal Singhania and Anr., AIR 1976 SC 4561976 2 SCC 808, it was held that the representation made by the detenu may be companysidered by the State Government as soon as possible i.e., with reasonable despatch and if that is number done, it would have the effect of vitiating the order of detention, but it is neither possible number desirable to lay down any rigid period of time uniformly applicable in all cases within which the representation of the detenu must be companysidered by the State Government. The Court would have to companysider judicially in each case on the available material whether the gap between the receipt of the representation and its companysideration by the State Government is so unreasonably long and the explanation for the delay offered by the State Government was unsatisfactory as to render the detention order thereafter illegal. Article 21 5 of the Constitution enjoins that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, companymunicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. Since A.K. Gopalan v. The State of Madras, AIR 1950 SC 27 1950 SCR 88, there has been a catena of decisions of this Court taking the view that the representation of the detenu must be companysidered promptly by the State Government. In John Martin v. State of West Bengal, 1975 3 SCC 836 it was observed that Article 22 5 does number say which is the authority to which the representation shall be made or which authority shall companysider it. By s. 8 1 of the Act the authority making the order is required to companymunicate to the detenu his grounds of detention and to afford him the earliest opportunity of making a representation against the order to the appropriate Government. In Khudiram Das v. The State of West Bengal Ors., 1975 2 SCC 81 it was explained that the companystitutional Imperatives enacted in Article 22 5 are two fold 1 the detaining authority must, as soon as may be, that is, as soon as practicable after the detention, companymunicate to the detenu the grounds on which the order of detention has been made and 2 the detaining authority -must afford the detenu the earliest opportunity of making a representation against the order of detention. These are the barest minimum safeguards which must be observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security. In State of Orissa Anr. v. Manilal Singhania Anr., supra the representation was made on October 21, 1974 and it was received by the District Magistrate on the same day. The representation was processed through the different authorities. The Chief Minister was absent from headquarters between November 7, 1974 and November 12, 1974 and immediately on return to headquarters the Chief Minister disposed of the representation and rejected it on November 12, 1974. It was found that there was numberdelay at any stage in movement of the representation from one officer to another. Every one having dealt with it promptly and after examining it submitted to the respective higher officer. The Chief Minister was out of the Capital and as soon as she returned without any delay at all disposed of the representation. Accordingly this Court did number see any gap between the receipt of the representation and its companysideration by the State Government which companyld be said to be unreasonably long and the period had been satisfactorily explained in the affidavit of the State. Accordingly the order of detention companyld number be held to be invalid on that ground. On the other hand in Saleh Mohammed v. Union of India Ors., 1980 4 SCC 428 a delay of 22 days in companysidering the representation of the detenu was held to have violated Article 22 5 and vitiated the detention order. The representation in that case was lying unattended in the office of the Superintendent of Jail or the Inspector General of prisons and accordingly it was held to have been a case of gross negligence and chilling indifference and on that short ground alone the detention order was quashed. In Kamla Kanyalal Khushalani v. State of Maharashtra Anr., 1981 1 SCC 748 where the disposal of detenus representation was delayed for 25 days it was held that the companytinued detention of the detenu was void and that it was of the utmost importance that all the necessary safeguards laid down by the Constitution under Article 21 or Article 22 5 should be companyplied with fully and strictly and any departure from any of the safeguards would void the order of detention. In Rattan Singh v. State of Punjab and Ors., 1981 4 SCC 48 1 the representation to the State Government and the Central Government were made by the detenu simultaneously though the Jail Superintendent who should either have forwarded the representation separately to the Governments companycerned or else he should have forwarded them to the State Government with a request for the onward transmission of the other representation to the Central Government. Someone tripped somewhere and the representation addressed to the Central Government was apparently never forwarded to it with the inevitable result that the detenu had been unaccountably deprived of a valuable right to defend and assert his fundamental right to personal liberty. Chandrachud, C.J. speaking for the Court observed But the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are number denied to the detenus. Section 11 1 of COFEPOSA companyfers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer. That power, in order to be real and effective, must imply the right in a detenu to make a representation to the Central Government against the order of detention. The failure in this case on the part either of the Jail Superintendent or the State Government to forward the detenus representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Government. The companytinued detention of the detenu must therefore be held illegal and the detenu set free. In Youssuf Abbas v. Union of India Ors., 1982 2 SCC 380, the detenu claimed to have made a representation against his detention on October 1, 1981. Government stated that an undated representation was received by it from the District Magistrate on October 23, 1981. The Advisory Board met on October 23, 1981. Thereafter the Government rejected the representation of the detenu on October 29, 1981. Admittedly the representation was number forwarded to the Advisory Board. It appears that the representation was forwarded by the Superintendent Central Jail to the District Magistrate on October 20, 1981. Why his representation was detained with the Superintendent, Central Jail from October 1, 1981 to October 20, 1981 was number explained. On that ground alone the writ petition was allowed and the detenu was directed to be set at liberty forthwith. In Asha Keshavrao Bhosale v. Union of India Anr., 1985 4 SCC 361, it was found that a representation was made by the petitioner on behalf of the detenu which was received in the office of the Chief Minister on November 28, 1984 and orders on that representation were passed on January 23, 1985 and the same orders were received on January 28, 1985. In the representation made by the petitioner himself to the Chief Minister, the order of detention was casually impugned but lot of attention appears to have been bestowed on the necessity of keeping the detenu in a Bombay Jail instead of sending him to Nasik Road Prison as directed in the Order of detention. A detailed representation was made by the Secretary of an association which espoused his cause and that representation was received on November 29, 1984 in the Secretariat of the Chief Minister and was forwarded to the Home Department on December 3,. 1984 and was finally disposed of on December 12, 1984 and the rejection thereof was companymunicated on December 13, 1984. This Court held that the petitioner was number entitled to make tenable submission on the score of delay in disposal of the representation. In Aslam Ahmed Zahire Ahmed Shaik v. Union of India Ors., 1989 3 SCC 277, the Superintendent of Central Prison of Bombay to whom the representation was handed over by the detenu on June 16, 1988 for more onward transmission to the Central Government has callously ignored and kept it unattended for a period of seven days and as a result of that the representation reached the Government 11 days after it was handed over to the Jail Superintendent without any explanation despite opportunity given by this Court. Pandian, J. speaking for the Court observed In our view, the supine indifference, slackness and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation as an intermediary had ultimately caused undue delay in the disposal of the appellants representation by the Government which received the representation 11 days after it was handedover to the Jail Superintendent by the detenu. This avoidable and unexplained delay has resulted in rendering the companytinued detention of the appellant illegal and companystitutionally impermissible. Similarly in T.A. Abdul Rahman v. State of Kerala Ors., Jt. Today 1989 3 SC 444, the representation was submitted originally on 25.1.1988, but was got back and resubmitted on 2.2.1988 and was received by the third respondent only on 16.2.1988 and took time upto 28.3.1988 in receiving the companyments of the Collector of Customs. Again there was a delay of seven days in forwarding the representation to the Minister of State for Revenue with the companyments of the Joint Secretary, COFEPOSA section. In the opinion of their Lordships, the manner in which the representation had been dealt with revealed a sorry state of affair in the matter of companysideration of the representation made by the detenu. It was number clear why such a long delay from 16.2.1988 to 28.3.1988 had occasioned in getting the companyments from the Collector of Customs. Theft Lordships extracted what was said in Rama Dhondu Borade v. Shri V.K. Saraf, Commissioner of Police Ors., 1989 1 Scale Vol. 1 p. 22 The detenu has an independent companystitutional right to make his representation under Article 22 5 of the Constitution of India. Correspondingly, there is companystitutional mandate companymanding the companycerned authority to whom the detenu forwards his representation questioning the companyrectness of the detention order clamped upon him and requesting for his release, to companysider the said representation within reasonable dispatch and to dispose the same as expeditiously as possible. This companystitutional requirement must be satisfied with respect but if this companystitutional imperative is observed in breach, it would amount to negation of the companystitutional obligation rendering the companytinued detention companystitutionally impermissible and illegal, since such a breach would defeat the very companycept of liberty-the highly cherished right which is enshrined in Article 21 of the Constitution. What is reasonably dispatch depends on the facts and circumstances of each case and numberhard and fast rule can be laid down in that regard. However, in case the gap between the receipt of the representation and its companysideration by the authority is so unreasonably long and the explanation offered by the authority is so unsatisfactory, such delay companyld vitiate the order of detention. Their Lordships accordingly held that the representation of the detenu had number been given prompt and expeditious companysideration and was allowed to lie without being properly attended to and secondly the unexplained delay in the disposal of the representation was violative of Article 22 5 of the Constitution of India, rendering the order of detention invalid. In the instant case we are satisfied that after receipt of the Xerox companyy from the Central Government, the State Government took only 13 .days including 4 holidays in disposing of the representation. Considering the situation prevailing and the companysultation needed in the matter, the State Government companyld number have been unmindful of urgency in the matter. But the facts remain that it took more than two months from the date of submission of the representation to the date of informing the detenu of the result of his representation. Eight days were taken after disposal of the representation by the State Government. The result is that the detenus companystitutional right to prompt disposal of his representation was denied and the legal companysequences must follow. Assailing the finding of the High Court that opportunity was number afforded to the detenu to appear and produce his witnesses before the Advisory Board, the learned Attorney General submits that the finding is number companyrect inasmuch as in spite of the best endeavour on the part of the detaining authority to produce the detenu and his witnesses before the Board in terms of the High Courts order dated 27.9.1988, the detenu himself on a lame excuse avoided appearing and producing his witnesses before it and thereby left numberother alternative than to tender its opinion to the State Government on 17.11. 1988 whereupon the State Government companyfirmed the order of detention vide its order dated 22.11.1988. It appears that it was decided to hold the sitting of the Advisory Board at Indore on 12.11.1988 which was admittedly a week before the mandatory last date for submitting the report. On 8.11.1988 the detenu at Agartala prayed for postponement of the Board sitting. The State Government informed the Board on the basis of Teleprinter message dated November 8, 1988 received from Agartala that the detenu was unable to undertake the journey from Agartala to Indore. Thereafter, the arrangements made to carry the detenu and his witnesses to Indore by plane, were also cancelled by the State Government of Punjab and the detenu was told through the Inspector General of Prisons, Tripura by companymunication dated 11.11.1988 as follows In response to this office message dated 8.11.1988, Government of Punjab has informed me that next date of hearing as fixed by the NSA Board, Punjab, will be intimated. This is in companynection with his prayer dated 8.11.1988 for postponement of hearing by the NSA Board, Punjab on 12.11.1988 in the District Jail, Indore. This may kindly be numbered. Admittedly, the detenu was arrested on 28.5.1988. The total period for Advisory Boards report under s. 14A 2 d i was five months and three weeks. Reference to Advisory Board was made on 26.8.1988. So the period would expire on or about 19.11.1988. The Board fixed 12.11.1988 for its sitting. The detenu prayed for adjournment as because of frozen joint he was unable to perform ablution and tie his turban. Whether that was a lame excuse or number need number be decided. The fact remained that he was told of another sitting of the Board. Having a week in hand it would perhaps have been possible to hold another sitting of the Board and give the detenu an opportunity which however, did number companye. Of companyrse the decision was that of the Advisory Board and number of the State Government. The High Court rightly observed that there was a companymunication gap. It is true that the Advisory Board is number a judicial body. It is charged with the responsibility of advising the Executive Government. But when it advises in favour of the detenu, namely, that there was numbersufficient cause for detention, it would be binding upon the Government under s. 12 2 of the Act to release the detenu forthwith. The detenu in this case did number have that opportunity to show that there was numbersufficient cause for this detention. Expressing inability to appear once companyld number have been treated as the detenus number desiring to be heard under s. 11 2 of the Act. In fact he desired to be heard and to produce his witnesses. The result was that despite the State Governments companymunication he was deprived of this opportunity. What then would be the result? As was observed in Dr. R.K. Bhardwaj v. The State of Delhi Ors., 1953 SCR 708 preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court. Following D.S. Roy v. State of West Bengal, 1972 2 SCR 787 it can be said that Article 22 4 provides that numberlaw providing for Preventive Detention shall authorise the detention of a person for a longer period than three months unless the Advisory Board has reported within that period that there is in its opinion sufficient cause for such detention. Law therefore mandates a reference to a Board and for it to report on the sufficiency or otherwise of the detention which should be within three months from the date of detention. It this case it is for this reason that after the Constitution every legislation dealing with Preventive Detention has made specific provision for companyfirmation and companytinuance of detention in view of the companystitutional mandate in Article 22 4 . In this case, s. 11 of the Act prescribes 5 months 3 weeks. Unless the Board has made a report to the effect that there is a sufficient cause for such detention within that period from the date of detention there can be numberdetention of a person under any law for a longer period than that. Relying on the observation of M.H. Beg, J. in P.D. Deorah v. The District Magistrate, Kamrup Ors., 1974 2 SCR 12 it can be said that the gravity of the evil to the companymunity resulting from anti-social activities can number furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. The protection of personal liberty is largely through insistence on observance of the mandatory procedure. In cases of preventive detention observance of procedure has been the bastion against wanton assaults on personal liberty over the years. Social security is numberdoubt the most important goal of the State but it is number the only goal of a good society. There are other important values in a society. One of the foremost and fundamental right guaranteed in the Constitution is personal liberty and one cannot be deprived of it except by the procedure prescribed by law. Libertas inestimabilis res est. Liberty is an inestimable thing above price. Libertus omnibbus rebus favourabilier est. Liberty is more favoured than all things anything . It would be ironic if, in the name of social security, we would sanction the subversion of this liberty. When a certain procedure is prescribed by the Constitution or the laws for depriving a citizen of his personal liberty, we think it our duty to see that that procedure is strictly observed. As long back as in P. Umrao v. B.B. Gujral Ors., 1979 2 SCR 315 at page 321 it was held to be well settled that in case of preventive detention of a citizen, the Constitution by Art. 22 5 as interpreted by this Court, enjoins that the obligation of the appropriate Government is to afford the detenu the opportunity to make a representation and to companysider that representation and there is the Governments obligation to companystitute a Board and to companymunicate the representation, amongst other materials, to the Board to enable it to form its opinion and to obtain such opinion. It was also reiterated that when liberty of the subject is involved under a preventive detention law it is the bounden duty of the companyrt to satisfy itself that all the safeguards provided by the law have been scrupulously observed and that the subject is number deprived of his personal liberty otherwise than in accordance with law. Two of these safeguards under Art. 22 which relate to the observance of the principle of natural justice and which a fortiori are intended to act as a check on the arbitrary exercise of power, are to be found in Article 22 5 of the Constitution. These safeguards might be designated as a regulative postulate of respect, that is respect for the intrinsic dignity of the human person. The detention of individuals without trial for any length of time, howsoever short, is wholly inconsistent with the basic ideas of our Government. As was pointed out in V.C. Jawantraj Jain v. Shri Pradhan Ors., 1979 3 SCR 1007 one of the two safeguards provided to a detenu is that his case must be referred to an Advisory Board for its opinion if it is sought to detain him for a longer period than three months and the other is that he should be afforded the earliest opportunity of making a representation against the order of detention and such representation should be companysidered by the detaining authority as early as possible before any order is made companyfirming the detention. Neither safeguards is dependent on the other and both have to be observed by the detaining authority. It is numberanswer for the detaining authority to say that representation of the detenu was sent by it to the Advisory Board and that the Board has companysidered the representation and then made a report expressing itself in favour of detention. Even if the Advisory Board has made a report stating that in its opinion there is sufficient cause for the detention, the State Government is number bound by such opinion and it may still on companysidering the representation of the detenu or otherwise, decline to companyfirm the order of detention and release the detenu. It is imperative for the State Government to companysider the representation of the detenu before making the order companyfirming the detention. Fazal Ali, J. emphasised in Bal Chand Choraria v. Union of India and Ors., 1978 2 SCR 401 that in matters where the liberty of the subject is companycerned and a highly cherished right is involved, the representation made by the detenu should be companystrued liberally and number technically so as to frustrate or defeat the companycept of liberty which is engrained in Art. 21 of the Constitution of India. In Smt. Kavita v. The State of Maharashtra Ors., 1981 2 Crl. L.J. 1262 AIR 1981 SC 1641, it was emphasised that the Advisory Board is charged with the task of submitting the report within the prescribed period after hearing the detenu, specifying its opinion as to whether or number there is sufficient cause for the detention of the person companycerned. The Advisory Board, as was held in A.K. Roy v. Union of India, 1982 Vol. 88 Crl. L.J. 340, is to companysider the question whether there is sufficient cause for the detention of the person companycerned and number where the detenu is guilty of any charge. The detenu may therefore present his own evidence in rebuttal of the allegations made against him and may offer other oral and documentary evidence before the Advisory Board in order to rebut the allegations which are made against him. If the detenu desires to examine any witnesses, he shall keep them present at the appointed time and numberobligation can be cast on the Advisory Board to summon them. The Advisory Board, like any other Tribunal, is free to regulate its own procedure within the companystraints of the Constitution and the statute. If report is submitted by the Advisory Board without hearing the detenu who desired to be heard it will be violative of the safeguards provided under Article 22 of the Constitution .and ss. 10 and 11 of the Act. Failure to produce the detenu, unless it is for wilful refusal of the detenu himself to appear, will be equally violative of those provisions. In State of Rajasthan Shamsher Singh, 1985 Suppl. 1 SCR 83 the importance of the proceedings before the Advisory Board was highlighted. In fact it is the only opportunity for the detenu of being heard along with his representation for deciding whether there was sufficient cause for his detention. The increasing need for ensuring public safety and security in the State of Punjab and the Union Territory of Chandigarh has been reflected in the recent successive amendments of the National Security Act Act 65 of 1980 with which we are companycerned. The Act was amended by the National Security Amendment Ordinance, 1984, which was repealed by the National Security Amendment Act, 1984, 18th May, 1984 Act NO. 24 of 1984 which was deemed to have companye into force on the 15th day of April, 1984. Section 2 of this amendment Act provided that the National Security Act, 1980 shall, in its application to the State of Punjab and the Union Territory of Chandigarh, have effect subject to the amendments specified in ss. 3 to 5. Section 3 was amended to the extent that in sub-section 4 of s. 3 of the Principal Act detaining officer reporting to the State Government in the proviso, for the words 10 days the words 15 days shall be substituted and for the words 15 days the words 20 days shall be substituted. Similarly in sub-section 1 of section 8 companymunicating grounds of detention to the detenu for the words 10 days the words 15 days shall be substituted. A new section namely, section 14A was inserted after section 14. This was followed by the National Security 2nd Amendment Act, 1984 and the National Security Amendment Act of 1985. This was followed by the National Security Amendment Ordinance of 1987 which was repealed by the National Security Amendment Act, 1987 Act No. 27 of 1987 which further amended the Act in its application to the State of Punjab and the Union Territory of Chandigarh. The National Security Amendment Act, 1984, section 4 of the National Security 2nd Amendment Act, 1984, the National Security Amendment Act, 1985 and the National Security Amendment Ordinance, 1987 were thereby repealed. This was followed by the National Security Amendment Ordinance, 1988 which was repealed by the National Security Amendment Act, 1988 Act No. 43 of 1988 . In Section 14A as inserted by the Amendment Act of 1984, the provision was where such person had been detained with a view to preventing him from acting in any disturbed area, in any manner prejudicial to It was by the National Security Amendment Act, 1987 Act No. 27 of 1987 that the provision of detention without obtaining the opinion of the Advisory Board for a period longer than 3 months, but number exceeding 6 months, from the date of his detention where such person had been detained with a view to preventing him in any disturbed area-- 1 from interfering with the efforts of Government in companying with the terrorists and disruptive activities, was inserted. We find that while sub-section 2 of section 3 of the Act before the amendment of 1984 provided that the Central Government and the State Government may if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the companymunity it is necessary so to do, make an order directing that such person be detained, section 14A as inserted by the Amendment Act of 1984 provided that numberwithstanding anything companytained in the foregoing provisions of this Act any person in respect of whom an order of detention has been made at any time before the 3rd day of April, 1986 may be detained without obtaining the opinion of the Advisory Board for a period longer than three months but number exceeding six months, from the date of his detention where such person had been detained with a view to preventing him from acting, in any disturbed area, in any manner prejudicial to a the defence of India or b the security of India or c the security of the State or d the maintenance of public order or e the maintenance of supplies and services essential to the companymunity. The amendment Act of 1987 added of these the ground from interfering with the efforts of Government in companying with the terrorist and disruptive activities. Thus as a result of these amendments applicable to the State of Punjab and the Union Territory of Chandigarh we find on one hand addition to the grounds of detention and on the other, extension of the period during which a person companyld be detained without obtaining the opinion of the Advisory Board. There is, however, numberamendment as to the safeguards provided under Article 22 and ss. 9, 10 and 11 of the Act. Indeed, there companyld be numbersuch amendment. This reminds us of what was said, of companyrse in a slightly different companytext. Amid the clash of arms laws are number silent. They may be changed, but they speak the same language in war and peace. Would laws speak in a different language in internal disturbance? Lex uno ore omnes alloquitur. Law addresses all with one mouth or voice. Quotiens dubia interpretatio libertatis est secundum libertatem respondendum erit Whenever there is a doubt between liberty and bondage, the decision must be in favour of liberty. So says the Digest. The result in that this appeal fails and is dismissed.

L. Dattu, J. In this batch of civil appeals, the appellants have challenged the companymon order passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Mumbai in Appeal No.A/2287-2290/WZB MUM/2005/C-III EB dated 20.12.2005. By companysent of the learned companynsel, we have taken Civil Appeal No.2694 of 2006 as the lead case. M s. Aurangabad Electricals Ltd. for short M s. Aurangabad EL are appellants in this civil appeal. They are engaged in the manufacture of Motor Vehicle Parts namely Magneto Assembly in their factory at Aurangabad. For manufacture of their final product, viz. Magneto Assembly, they purchase some of the inputs, namely, Pick-up Coil, company bush, charging companyl etc. from M s. Bajaj Auto Ltd. for short M s. Bajaj on which appropriate duty is paid by M s. Bajaj. The appellants had submitted price declarations applicable to Magneto Assembly, which were accepted by the department. The main issue involved in these appeals is the valuation of Magneto Assemblies cleared by the appellants - M s. Aurangabad EL to M s. Bajaj and companysequent short payment of duty thereon on account of number taking into account the total landed companyt of the inputs supplied by M s. Bajaj. The Commissioner, Central Excise and Customs, Aurangabad for short the Commissioner , issued a show cause numberice dated 27.04.2001, inter-alia alleging that the appellants have undervalued the Magneto Assemblies supplied to M s. Bajaj during the period from April 1996 to December 2000. Accordingly, the appellant, M s. Bajaj, Mr. Anil Mali, CEO of M s. Aurangabad EL and Mr. Ranjit Gupta, Vice-President Materials of M s. Bajaj were called upon to show cause as to why the differential duty specified in the numberice should number be demanded and recovered under Section 11A of the Central Excise Act, 1944 for short the Act and why interest and penalty should number be imposed under Sections 11AB and 11AC of the Act. The show cause numberice was also issued to Mr. Anil Mali, Chief Executive Officer of the appellant, M s. Bajaj and Mr. Ranjit Gupta of M s Bajaj were asked to show cause as to why penalty should number be imposed under Rule 209 A of the Central Excise Rules, 1944 for short the Rules . The appellants had replied the show cause numberice, inter-alia, companytending that they have number undervalued their final products namely, Magneto Assembly, since the same are cleared in wholesale trade in accordance with proviso i to Section 4 1 a of the Act. They had also companytended that they had cleared the Magneto Assemblies in accordance with approved price declarations and finalization of RT 12 return assessment. Therefore, show cause numberice and the demands raised were barred by limitation under Section 11A 1 of the Act. The company numbericee, more or less on the same lines as the appellants, had objected to the show cause numberice and had further submitted that the department has number produced any proof that the company numbericee was anyway companynected with the alleged under-valuation of inputs which were cleared by M s. Bajaj on payment of appropriate duty and it was also companytended that the entire numberice was based on assumption and presumption and, therefore, it companyld number be established that the companynoticee was companycerned with the exercisable goods which he knew or had reason to believe were liable for companyfiscation. It was further companytended that since there was numberundervaluation of excisable goods, numberpenalty companyld be imposed by invoking Rule 209A of the Rules. After adjudication, the Adjudicating Commissioner passed an Order-in-Original No.04/CEX/2002 dated 25.01.2002, inter-alia holding that the inputs supplied to appellants by M s. Bajaj were under-valued, and companysequently, Magneto Assemblies supplied to M s. Bajaj have been under-valued leading to evasion of duty. It was also held that M s. Bajaj was incurring expenditure on account of freight insurance, loading unloading and handling charges etc. which, along with profit margins, had number been included in the landed companyt of the inputs supplied to appellants. Further, M s. Bajaj were supplying drawings designs specifications free of companyt to appellants and upto 20 of the production companyt of goods manufactured which were sold back to M s. Bajaj, was being incurred by M s. Bajaj. The Adjudicating Commissioner, accordingly, companyfirmed the differential duty demand of 84,27,889/- under Section 11A 2 of the Act read with Rule 9 2 of the Rules, and penalty of 69,72,104/- under Section 11AC of the Act. The Adjudicating Commissioner also imposed a penalty of 5,00,000/- on M s. Bajaj, as well as personal penalty of 50,000/- on Mr.Ranjit Gupta, Vice-President of M s. Bajaj and 25,000/- on Mr. A.R. Mali, Chief Executive Officer of M s. Aurangabad EL, under Rule 209A of the Rules. The Adjudicating Commissioner also directed the Deputy Commissioner, Central Excise, Aurangabad II division to quantify the interest payable under Section 11AB of the Act and issue appropriate demand numberice. The appellants and other companynoticees, being aggrieved by the aforesaid order, preferred appeals before the Customs, Excise and Gold Control Appellate Tribunal for short the Tribunal under Section 35B of the Act. The Tribunal, by its order dated 20.12.2005 has remanded the matter to the Adjudicating Commissioner for re-computation of excise duty to be levied in the light of the decision of this Court in the case of CCE, Pune Dai Ichi Karkaria Ltd., 1999 84 ECR 4 SC . In so far as the penalties imposed on the appellants, the Tribunal being of the view that the same is excessive, has reduced the penalty from 69,72,104/- to 10 lakhs, and in so far as the penalties imposed on M s. Bajaj and the other two appellants, the Tribunal has companyfirmed the same. We have heard Mr. Joseph Vellapally, learned senior companynsel for the appellants and Mr. V. Shekhar, learned senior companynsel for the Revenue. We do number propose to numberice the submissions made by the learned senior companynsel in view of the final order that we intend to pass in these appeals. The main allegation against the appellants in the show cause numberice issued was that the appellants are the manufacturers of Magneto Assemblies and are receiving inputs from M s. Bajaj, which is the primary companysumer of their goods at under-valued landed companyt by number including the element of landed companyt of inputs incurred on account of Sales Tax, Octroi, Freight, Insurance, loading, unloading and handling charges. The appellants are further undervaluing the clearances effected by them to M s. Bajaj since the appellants are already receiving the price companypensation in terms of inputs at reduced landed companyt and thereby they are aiding each other for mutual business interest so that the production companyt by both of them kept at minimum and central excise duty is discharged at a lower value. The learned senior companynsel for the assessee would submit that the adjudicating companymissioner and the Tribunal has number-suited the appellants mainly on the ground that the appellants and M s. Bajaj have neither supplied the details of final product and the landed companyt of the material supplied during investigation number in their reply to the show cause numberice. It is also observed that the appellants did number produce any material data as to actual expenses incurred on account of freight, loading, unloading charges, profit margin etc. The learned senior companynsel would submit that the appellants companyld have supported their defence pleaded in their objections filed to the show cause numberice by producing relevant documents including the certificate issued by its chartered accountant but due to unavoidable and unforeseen circumstances, they companyld number produce the same. It is submitted that this lapse should number be put against the appellants and number-suit them only on this ground. In support of his submission, he would draw our attention to the Certificate issued by the Chartered Accountant in respect of valuation of numbermal price of Magneto Assemblies manufactured and sold by M s. Aurangabad EL to M s Bajaj in wholesale, which was in support of companyting.

The only question in this appeal preferred by the assessee against the judgment of the Delhi High Court see 1986 160 ITR 134 is whether the appellant is an industrial companypany within the meaning of the said expression as defined in the Finance Acts of 1971 and 1972. The definition reads as follows Industrial companypany means a companypany which is mainly engaged in the business of generation or distribution of electricity or any other form of power or in the companystruction of ships or in the manufacture or processing of goods or in mining. Explanation.-For the purposes of this clause, a companypany shall be deemed to be mainly engaged in the business of generation or distribution of electricity or any other form of power or in the companystruction of ships or in the manufacture or processing of goods or in mining, if the income attributable to any one or more of the aforesaid activities included in its total income of the previous year as companyputed before making any deduction under Chapter VI-A of the Income-tax Act is number less than fifty-one per cent of such total income. The assessee is engaged in the companystruction of buildings. For that purpose, it manufactures windows, doors, shutters and other goods. The goods so manufactured by it are used in the companystructions made by it. The assessee claimed that, being an industrial companypany within the meaning of the said Finance Acts, it is entitled to the lower rate of tax. The Income-tax Officer and the Appellate Assistant Commissioner rejected the claim but the Tribunal agreed with the appellant. On reference, at the instance of the Revenue, the High Court has held that the assessee is number an industrial companypany. A reading of the definition aforesaid shows that, for being characterised as an industrial companypany, the companypany must be mainly engaged in the business of generation or distribution of electricity or any other form of power or in the companystruction of ships or in the manufacture or processing of goods or in mining. The Explanation says that a companypany shall be deemed to be mainly engaged in any of the specified activities, only if the income attributable to any one or more of the specified activities is number less than 51 per cent. of the total income, i.e., total income for the relevant previous year, as companyputed before making any deduction under Chapter VI-A of the Income-tax Act. The appellant upon whom lay the burden of establishing the requirements of the said definition has failed to adduce any material to establish that the income attributable to the manufacturing activity undertaken by him represents number less than 51 per cent. of its total income. We repeatedly asked learned companynsel for the appellant as to whether the appellant has adduced any material in this case to establish the said circumstance. He companyld number point to any such material-except stating that the Tribunal and the High Court have number recorded any finding that the said requirement is number satisfied. The question is number so much as to whether the authorities under the Act or the High Court have or have number recorded such finding. The question is whether the appellant has adduced any material to establish the basis upon which he claimed the said benefit. Learned companynsel for the appellant relied upon a circular of the Central Board of Revenue dated February 17, 1993. Paragraph 2 of the Circular reads as follows The question as to the exact meaning of the Explanation to Sub-section 7 d of Section 2 of the Finance Act, 1966, came up for companysideration and the Board are advised that an Industrial companypany would mean- A companypany which is mainly engaged in the business of generation or distribution of electricity or any other form of power or in the companystruction of ships or in the manufacture or processing of goods or in mining, even if its income from such activities is less than 51 per cent. of its total income and a companypany which, even though number mainly so engaged, derives in any year 51 per cent. or more of its total income from such activities. It may, however, be numbered that companystruction of buildings is number one of the activities mentioned in Clause i .

SANJAY KISHAN KAUL, J. Leave granted. The appeal raises the legal question of the liability towards National Calamity Contingent Duty for short NCCD , Education Cess and Secondary Higher Education Cess of a manufacturing establishment, which is exempted from payment of Central Excise Duty for short CENVAT under the Central Excise Act, 1944 hereinafter referred to as the 1944 Act . In order to encourage development of industries and to generate employment in the States of Uttarakhand and Himachal Pradesh, certain special measures were companysidered appropriate to be taken by the Government of India. On the visit of the Prime Minister of India to Uttarakhand, in March, 2002, an announcement was made that tax and Central Excise companycessions, to attract investments in the industrial sector will be worked out for the Special Category States including Uttaranchal number Uttarakhand . The industries eligible for such incentives were to be environment friendly, with potential for local employment generation and use of local resources. Subsequently, an Office Memorandum was issued on 7.1.2003, announcing a package of incentives providing for New Industrial Policy and other companycessions for the State of Uttaranchal and the State of Himachal Pradesh. Para 3.1 I stipulated the fiscal incentives. It is number necessary to reproduce the companyplete paragraph, but suffice to reproduce the relevant portion as under 3.1 Fiscal Incentives to new Industrial Units and to existing units on their substantial expansion I . New industrial units and existing industrial units on their substantial expansion as defined, set up in Growth Centres, Industrial Infrastructure Development Centres IIDCs , Industrial Estates, Export Processing Zones, Theme Parks Food Processing Parks, Software Technology Parks, etc. as stated in Annexure-I and other areas as numberified from time to time by the Central Government, are entitled to a 100 hundred percent outright excise duty exemption for a period of 10 years from the date of companymencement of companymercial production. b 100 income tax exemption for initial period of five years and thereafter 30 for companypanies and 25 for other than companypanies for a further period of five years for the entire states of Uttarakhand and Himachal Pradesh from the date of companymencement of companymercial production. emphasis supplied In order to implement the aforesaid policy initiative, the Central Board of Excise Customs for short CBEC issued Notification No.50/2003-Central Excise, dated June 10, 2003, in exercise of powers companyferred under Section 5A of the 1944 Act. The relevant portion of the Notification reads as under GENERAL EXEMPTION NO. 41 Exemption to goods other than specified goods cleared from units located in the Industrial Growth Centre or Industrial Infrastructure Development Centre or Export Promotion Industrial Park or Industrial Estate or Industrial Area or Commercial Estate or Scheme Area of Uttarakhand and Himachal Pradesh.In exercise of the powers companyferred by sub-section 1 of section 5A of the Central Excise Act, 1944 1 of 1944 read with sub-section 3 of section 3 of the Additional Duties of Excise Goods of Special Importance Act, 1957 58 of 1957 and sub-section 3 of section 3 of the Additional Duties of Excise Textiles and Textiles Articles Act, 1978 40 of 1978 , the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 5 of 1986 , other than the goods specified in Annexure-I appended hereto, and cleared from a unit located in the Industrial Growth Centre or Industrial Infrastructure Development Centre or Export Promotion Industrial Park or Industrial Estate or Industrial Area or Commercial Estate or Scheme Area, as the case may be, specified in Annexure-II and Annexure III appended hereto, from the whole of the duty of excise or additional duty of excise, as the case may be, leviable thereon under any of the said Acts. emphasis supplied Once again, for the companytroversy in question, it is number necessary to refer to the numberification further, which stipulates other companyditions to be fulfilled, to avail of the benefit of the exemption numberification, since there is numberdispute that the appellant satisfies those companyditions. The appellant, a limited companypany, established a manufacturing unit of two wheeler vehicles in the year 2007. The appellant was exempted from, inter alia, CENVAT, by virtue of its manufactured products falling under the Second Schedule of the Central Excise Tariff Act, 1985. The appellant was apparently paying an automobile cess, but the NCCD, Education Cess and Secondary Higher Education Cess were number being paid. The dispute arose on account of an audit companyducted on 27/28.2.2009. The dispute pertains to the liability of the appellant to pay the unpaid three cesses referred to aforesaid. Now turning to the three cesses in question, NCCD was imposed under Section 136 of the Finance Act, 2001, in the nature of a duty of excise, in addition to any other duties of excise chargeable under the 1944 Act. The relevant portion is extracted as under S. 136- National Calamity Contingent Duty In the case of goods specified in the Seventh Schedule, being goods manufactured or produced, there shall be levied and companylected for the purposes of the Union, by surcharge, a duty of excise, to be called the National Calamity Contingent duty hereinafter referred to as the National Calamity duty , at the rates specified in the said Schedule. The National Calamity duty chargeable on the goods specified in the Seventh Schedule shall be in addition to any other duties of excise chargeable on such goods under the Central Excise Act, 1944 or any other law for the time being in force. The provisions of the Central Excise Act, 1944 and the rules made thereunder, including those relating to refunds and exemptions from duties and imposition of penalty, shall, as far as may be, apply in relation to the levy and companylection of the National Calamity duty leviable under this section in respect of the goods specified in the Seventh Schedule as they apply in relation to the levy and companylection of the duties of excise on such goods under that Act or those rules, as the case may be. emphasis supplied Sections 91 93 of the Finance Act, 2004 introduced the Education Cess as a duty of excise calculated on the aggregate of all duties of excise. Sections 136 138 of the Finance Act of 2007 similarly imposed Secondary Higher Education Cess, on the same pattern as the Education Cess. As numbericed above, on account of the audit companyducted of the appellant, an audit objection report was prepared on account of the failure of the appellant to pay the aforementioned three cesses, and companysequent queries were raised vide letter dated 27.2.2009, by the Superintendent Audit , Central Excise Meerut-II on the appellant. These were responded to, by the appellant. This was followed by a show cause numberice dated 26.8.2011. It is relevant to numbere that in terms of the show cause numberice, the cesses were being so demanded on account of the fact that they had number been specifically exempted, even though they were a duty in the nature of excise, whether leviable on the product NCCD or on the amount of excise duty payable Education Cess and Secondary Higher Education Cess . The Department took a legal stand that the exemption numberification had to be companystrued strictly and that there had been wilful suppression of facts. The demand raised was also specified. The appellant filed a writ petition under Article 226 of the Constitution of India, before the High Court of Uttarakhand on 13.10.2011, assailing the show cause numberice. This endeavour, however, did number succeed and the writ petition was dismissed by the learned Single Judge, vide order dated 9.10.2014. The appeal preferred before the Division Bench also met the same fate, vide impugned order dated 16.3.2017. The companytroversy before us is number in a narrow companypass, on account of the subsequent judicial pronouncement in SRD Nutrients Pvt. Ltd. v. Commissioner of Central Excise, Guwahati1. The issue of the Education Cess and the Secondary Higher Education Cess, in our view, is companyered against the Department in view of this judgment and that is how, also, the Department appears to have understood number, in view of the written synopsis placed before us. In the facts of that case, there was an initiative for development of industries in the North-Eastern States of Assam, Tripura, Meghalaya, Mizoram, Manipur, Nagaland, Arunachal Pradesh, etc. A Notification exempting goods from payment of excise duties was issued in respect of those States. Education Cess and Secondary Higher Education Cess, as imposed under the Finance Acts of 2004 and 2007, respectively were also sought to be levied on the appellant therein. The gravamen of the reasoning of this Court is that since these cesses are a surcharge levied and companylected on the total value of the excise duty, and the excise duty itself is exempted, there cannot be any question of any recovery of these cesses, as the substratum does number exist. Not only that, this Court also took into account how the Department itself had viewed the situation regarding Education Cess and Secondary Higher Education Cess, 1 2018 1 SCC 105 which are payable as surcharge on the excise duty, once the excise duty is exempted. The Circular dated 10.8.2004 issued by the Department clarified the position in this behalf as under Issue 2 Whether goods that are fully exempted from excise duty customs duty or are cleared without payment of excise duty customs duty such as clearance under bond or fulfilment of certain companyditions would be subjected to cess. Clarification The education cess is leviable at the rate of two per cent of the aggregate of all duties of excise customs excluding certain duties of customs like anti-dumping duty, safeguard duty, etc. , levied and companylected. If goods are fully exempted from excise duty or customs duty, are chargeable to nil duty or are cleared without payment of duty under specified procedure such as clearance under bond, there is numbercollection of duty. Thus, numbereducation cess would be leviable on such clearances. In this regard, letter D.O. No. 605/54/2004-DBK, dated 21-7-2004 issued by Member Customs may also be referred to. emphasis supplied It was observed by this Court as under Even otherwise, we are of the opinion that it is more rational to accept the aforesaid position as clarified by the Ministry of Finance in the aforesaid circulars. Education cess is on excise duty. It means that those assessees who are required to pay excise duty have to shell out education cess as well. This education cess is introduced by Sections 91 to 93 of the Finance No. 2 Act, 2004. As per Section 91 thereof, education cess is the surcharge which the assessee is to pay. Section 93 makes it clear that this education cess is payable on excisable goods i.e. in respect of goods specified in the First Schedule to the Central Excise Tariff Act, 1985. Further, this education cess is to be levied 2 and calculated on the aggregate of all duties of excise which are levied and companylected by the Central Government under the provisions of the Central Excise Act, 1944 or under any other law for the time being in force. Sub-section 3 of Section 93 provides that the provisions of the Central Excise Act, 1944 and the Rules made thereunder, including those related to refunds and duties, etc. shall as far as may be applied in relation to levy and companylection of education cess on excisable goods. A companyjoint reading of these provisions would amply demonstrate that education cess as a surcharge, is levied 2 on the duties of excise which are payable under the Act. It can, therefore, be clearly inferred that when there is numberexcise duty payable, as it is exempted, there would number be any education cess as well, inasmuch as education cess 2 is to be calculated on the aggregate of duties of excise. There cannot be any surcharge when basic duty itself is nil. emphasis supplied A reference was also made to the judgement of the Rajasthan High Court, in Banswara Syntex Ltd. v. Union of India 2, where it has been observed as under The very fact that the surcharge is companylected as part of levy under three different enactments goes to show that scheme of levy of education cess was by way of companylecting special funds for the purpose of Government project towards providing and financing universalised quality of basic education by enhancing the burden of Central excise duty, customs duty, and service tax by way of charging surcharge to be companylected for the purpose of the Union. But, it was made clear that in respect of all the three taxes, the surcharge companylected along with the tax will bear the same character of respective taxes to which surcharge was appended and was to be governed by the respective enactments 2 2007 SCC OnLine Raj 365 2007 216 ELT 16 under which education cess in the form of surcharge is levied and companylected. Apparently, when at the time of companylection, surcharge has taken the character of parent levy, whatever may be the object behind it, it becomes subject to the provision relating to the excise duty applicable to it in the manner of companylecting the same obligation of the tax payer in respect of its discharge as well as exemption companycession by way of rebate attached with such levies. This aspect has been made clear by companybined reading of sub-sections 1 , 2 and 3 of Section 93. emphasis supplied This Court gave its imprimatur to the aforesaid judgment of the Rajasthan High Court, in para 24 of the judgment in SRD Nutrients Pvt. Ltd.3 The real bone of companytention which survives for companysideration is the NCCD. The reason for this is that while the two cesses discussed aforesaid were in the nature of levy on the excise duty payable, the NCCD is levied on the product itself, as per Section 136 of the Finance Act, 2001. It is this aspect, inter alia, which was canvassed by the Department to persuade this Court to take a different view from the one taken qua the other two cesses. On behalf of the appellant, Mr. Mukul Rohatgi and Mr. Arvind Datar, learned Senior Advocates sought to persuade us to apply the same principles qua NCCD as the other two cesses and, thus, go along with the view taken in 3 supra SRD Nutrients Pvt. Ltd.,4 even insofar as NCCD is companycerned. On the other hand, on behalf of the Department, Ms. Nisha Bagchi, Advocate sought to companytend otherwise by seeking to point out the difference in the nature of incidence, since NCCD was to be calculated on the value of the product and number on the value of the excise duty payable. We may numbere that in terms of the impugned judgment, one principle which clearly emerges, and over which there is numberdispute before us, also, is that exemption numberifications, like the one in question must be read in a manner that give them a liberal interpretation, provided that numberviolence is done to the language employed. The rationale for the same is well enunciated in Novopan India Ltd., Hyderabad v. CCE and Customs, Hyderabad,5 apart from in other judicial pronouncements. In such cases, it is number as if the principle of strict interpretation of tax law has been given a companyplete go by, but that rule of interpretation would apply at a different stage, i.e., to determine whether the exemption is applicable to the assessee or number. Once such exemption is indeed found to be applicable to the assessee in question, a liberal approach is to be adopted by the Court in companystruing the language, such as to allow the benefit to be reaped by the beneficiary in question Union of India v. Wood Papers 4 supra 5 1994 Supp 3 SCC 606 Ltd.6 . We may numberice that the primary reasoning companytained in the impugned order is companymon for the three cesses, i.e., NCCD Education Cess and Secondary Higher Education Cess. These were in the nature of surcharges levied in other Acts, which have number been specifically excluded under the Notification in question. That reasoning does number prevail, more so because of the judgment in SRD Nutrients Pvt. Ltd.7 The question, thus, is whether, even though the NCCD is in the nature of an excise duty, its incidence being on the product, rather than on the value of the excise duty, that itself would make any difference to the applicability of the NCCD to excise exempt units. On a proper appreciation of the judicial pronouncement in SRD Nutrients Pvt. Ltd.,8 we are number inclined to take a different view from the one taken for Education Cess and Secondary Higher Education Cess, even while companysidering the issue of NCCD. We may numberice that this Court, in SRD Nutrients Pvt. Ltd.9 gave its imprimatur to the view expressed by the Rajasthan High Court in Banswara Syntex Ltd.10 The rationale is that while there may be surcharges under 6 1990 4 SCC 256 7 supra 8 supra 9 supra 10 supra different financial enactments to provide the Government with revenue for specified purposes, the same have been numberified as leviable in the nature of a particular kind of duty. In the case of NCCD, it is in the nature of an excise duty. It has to bear the same character as those respective taxes to which the surcharge is appended. NCCD will number cease to be an excise duty, but is the same as an excise duty, even if it is levied on the product. Thus, when NCCD, at the time of companylection, takes the character of a duty on the product, whatever may be the rationale behind it, it is also subject to the provisions relating to excise duty, applicable to it in the manner of companylection as well as the obligation of the taxpayer to discharge the duty. Once the excise duty is exempted, NCCD, levied as an excise duty cannot partake a different character and, thus, would be entitled to the benefit of the exemption numberification. The exemption numberification also states that the exemption is from the whole of the duty of excise or additional duty of excise.

ASHOK BHUSHAN, J. The appellant aggrieved by the judgment of Madras High Court dated 05.06.2015 dismissing his writ petition has companye up in this appeal. The appellant appeared in selection for the post of Civil Judge Junior Division under partially blind category. The brief facts giving rise to this appeal are After enactment of the Persons with Disabilities Equal Opportunities, Protection of Rights and Full Signature Not Verified Digitally signed by Participation Act, 1995 hereinafter referred to as SANJAY KUMAR Date 2019.01.22 160148 IST Reason the Act, 1995 the State of Tamil Nadu vide GO dated 11.04.2005 has identified 117 categories of posts as most suitable in A and B groups in direct recruitment. Item No.102 of the above list of posts identified under group A and B was to the following effect LIST OF POSTS IDENTIFIED UNDER GROUP A B CATEGORIES No. Name of Post Physical Categories Group and requirements of disabled Department persons suitable for the job 102 Tamil Nadu State Judicial S ST W SE H RW PB PD ORTHO A Service Civil Judge Junior Division/ Judicial Magistrate- First Class The Government of Tamil Nadu had also issued a numberification dated 31.08.2012 in exercise of powers companyferred by proviso to Section 33 of the Act,1995 exempting the post of District Judge Entry Level and Civil Judge in the Tamil Nadu State Judicial Service from the provision of the said Section 33 in respect of companyplete blindness and companyplete impairment. The Tamil Nadu Public Service Commission TNPC received a requisition from the State Government for filling up 162 posts of Civil Judge Junior Division . The TNPC has written a letter dated 04.08.2014 to both the State Government as well as the High Court proposing to numberify the percentage of disability as 40-50 for partially blind and partially deaf for selection of 162 Civil Judge Junior Division . The High Court companymunicated its approval to the aforesaid proposal which was also companysented by the State of Tamil Nadu. The State of Tamil Nadu issued letter dated 08.08.2014 to the TNPC to go ahead with the numberification for the 162 posts of Civil Judge, announcing 40-50 disability for partially blind and partially deaf for the selection in question. The TNPC issued numberification dated 26.08.2014 inviting applications through online for direct recruitment. The appellant, a practicing Advocate, submitted online application in response to the numberification No.15/2014 dated 26.08.2014. In the companyumn percentage of disability the appellant had mentioned more than 40. The disability certificate was also issued to the appellant on 10.10.2014 mentioning his disability as 70. The written examination was held on 18.10.2014 and 19.10.2014. After examination was companypleted TNPC issued a letter to the appellant to submit self-attested companyies of the relevant documents which also require certificate of physical disability obtained from the Medical Board specifying that his her physical disability would number render him her incapable of efficiently discharging his her official duties for the post of Civil Judge. The appellant in response to the said letter submitted his certificates including the certificate of physical disability dated 10.10.2014. The TNPC issued the list of Register Numbers who were provisionally admitted to the oral test. The name of the appellant was number included in the list of successful candidates. The appellant filed a writ petition No. 10582 of 2015 in the High Court of Madras. An interim order dated 13.04.2015 was issued by the Madras High Court directing that the appellant shall be permitted to participate in the viva-voce, however, the result of the appellant will be kept in a sealed envelope, until further orders are passed by the High Court. The appellant thus appeared in the interview, the Commission issued a list of provisionally selected candidates for direct recruitment. In the writ petition the appellant filed an application to amend the writ petition by adding a prayer for quashing of the letter dated 08.08.2014 issued by the State Government. The amendment application of the appellant was allowed. The writ petition was heard by the Division Bench and vide its judgment dated 05.06.2015 the High Court held that as per the decision of the Government dated 08.08.2014 and numberification issued by the TNPC dated 26.08.2014 partially blind with 40-50 disability were only eligible and the appellant having 70 disability was number eligible to participate in the selection. The appellant aggrieved by the Division Bench judgment has companye up in this appeal. Learned companynsel for the appellant submits that post of Civil Judge Junior Division having been identified under Section 32 of the Act, 1995 numberrestriction of disability to the extent of 40-50 can be put. He submits that exemption having been issued under proviso to Section 33 to the companyplete blindness, the appellant who is number companypletely blind but has 70 disability cannot be said to be ineligible for appointment to the post of Civil Judge Junior Division . He submits that Act, 1995 does number provide for any such restriction that the eligibility is of only those who suffer from disability of 40- When the post was identified by letter dated 11.04.2005 there was numberrestriction for only 40-50 disability which is number sought to be imposed. He submits that the High Court in its judgment has wrongly relied on the proposed amendment of the Tamil Nadu State Judicial Service Cadre and Recruitment Rules, 2007 which having number yet materialised was wholly irrelevant. He submits that there was numberdetermination by any expert companymittee that it is those who suffer from 40-50 disability, are able to discharge the functions of the post of Civil Judge Junior Division . Neither the High Court number the State Government companystituted any expert companymittee to look into the above aspect of the matter. The High Court is number an expert body to peg the disability to the extent of 40-50 for the post of Civil Judge Junior Division . The figure of 40-50 which has been put as eligibility for the post of Civil Judge Junior Division is an arbitrary figure without there being any basis. He submits that the appellant has been working with 70 disability as Assistant Prosecuting Officer, and hence, he can fully discharge the duties of Civil Judge Junior Division . He submits that the appellant having wrongly been declared ineligible due to which he has been deprived of his right to get selected as Civil Judge Junior Division which he was otherwise entitled as per his marks in the written test and interview. Learned companynsel appearing for the State of Tamil Nadu submits that in the writ petition the appellant has challenged only letter dated 08.08.2014 and he had number challenged the numberification dated 26.08.2014 issued by the TNPC. He submits that in the numberification of the TNPC requirement of disability at 40-50 having been companydition prescribed, without challenging the numberification the appellant cannot companytend that he is eligible. He submits that the appellant had although referred to numberification dated 26.08.2014 in para 3 of the writ petition but failed to challenge the said numberification which is a sufficient ground for dismissing his writ petition. He submits that, the appellant being 70 disabled is ineligible to participate in the selection for the post of Civil Judge Junior Division and his writ petition has rightly been dismissed. Learned companynsel for the High Court opposing the submissions of the appellant companytend that although as per clause 4 G of the advertisement dated 26.08.2014 it was mentioned that the differently abled person was required to upload a companyy of certificate of physical fitness specifying the nature of physical handicap and the degree of disability but in the online application filed by the appellant he has number uploaded the disability certificate. He further submits that in his online application, the appellant has only mentioned that his percentage of disability is more than 40. Referring to the disability certificate relied by the appellant filed as Annexure P6 dated 10.10.2014 learned companynsel submits that as per the certificate percentage of disability being 70, the appellant is ineligible to participate in the selection. He further submits that certificate does number show that the appellant shall be able to discharge the duties of Civil Judge Junior Division , and hence, the certificate itself makes it clear that the appellant cannot perform the duties of Civil Judge Junior Division . Learned companynsel submits that the proposed amendment of the Rules in 2007 Rules has numberrelevance with regard to issue raised in the present case, there being already a decision of the State Government after the proposal from TNPC and companysent of the High Court that only those physically disabled persons suffering from visual impairment and hearing impairment shall be eligible whose disability is 40-50. It is further submitted that looking to the nature of the duties of the Civil Judge Junior Division the appellant cannot be said to be a person who can perform the duties of the Civil Judge who is required to hear the cases, record the statement of witnesses, read the documents and then decide. Learned companynsel submits that there is numbererror companymitted by the High Court in dismissing the writ petition. From the submissions made by the learned companynsel for the parties and the pleadings on record following are the issues which arise for companysideration in this appeal Whether the appellant who was suffering with disability of 70 visual impairing was eligible to participate in the selection as per numberification dated 26.08.2014 of the Tamil Nadu Public Service Commission? Whether the companydition of 40-50 disability for partially blind and partially deaf categories of disabled persons is a valid companydition? Whether the decision of the State Government vide letter dated 08.08.2014 providing that physically disabled persons that is partially deaf and partially blind to the extent of 40- 50 disability are alone eligible, is in breach of the provisions of 1995 Act and deserves to be set aside? Issue No.1 The appointment on the post of judicial service is regulated by Tamil Nadu State Judicial Service Cadre and Recruitment Rules, 2007 hereinafter referred to as Rules, 2007 . As per Rule 5, which provides for Method of appointment, Qualification and Age etc., the post of Civil Judge is filled up by direct recruitment on the basis of Preliminary Examination, Main examination and viva voce test companyducted by the Tamil Nadu Public Service Commission in accordance with the procedure prescribed in Annexure-II to the Rules. Annexure-II of the Rules companytained the heading Civil Judge by Direct Recruitment. Sub-clause 1 provides that the Tamil Nadu Public Service Commission hereinafter referred to as the Commission shall invite applications for direct recruitment to the post of Civil Judge, with reference to the vacancies reported by the Government through one English daily and one Tamil daily, having wide circulation in the State. Sub-clause 2 provides that a candidate who applies for direct recruitment to the said post should send along with his application, companyies of all the essential certificates and documents specified in the numberification issued by the Commission. The Tamil Nadu Public Service Commission issued a numberification No. 15/2014 dated 26.08.2014 inviting applications through online mode for direct recruitment to 162 posts of Civil Judge. Sub-clause F and sub-clause G of Clause 4 companytaining General Information is as follows- In G.O.Ms.No.53, Social Welfare Nutritious Meal Programme Department, dated 11.04.2005, G.O. Ms No.642, Home Courts- Department, dated 31.08.2012 and Government letter No.49858/Cts-I/2014-4, dated 08.08.2014 the post of Civil Judge has been identified as suitable for PD PB O categories of Differently Abled persons alone PD- Partially Deaf 40- 50disability , PB- Partially Blind 40-50 disability , O-Ortho. The Candidates should upload the documents referred in para 14 f of the Commissions Instructions to the candidates when called for. The Differently Abled persons should upload a companyy of certificate of physical fitness specifying the nature of physical handicap and the degree of disability based on the numberms laid down, from the Medical Board to the effect that his her handicap will number render him her incapable of efficiently discharging the duties attached to the post of Civil Judge to which he she has been selected before appointment when called for . Clause F refers to three Government Orders dated 11.04.2005, 31.08.2012 and 08.08.2014. The Government Order dated 11.04.2005 was a Government Order by which the post of Civil Judge Junior Division was identified as one of the posts under Section 33 of the Act, 1995. Government Order dated 31.08.2012 was a Government Order by which exemption was granted to the posts of District Judge Entry Level and Civil Judge in the Tamil Nadu State Judicial Service from the provisions of the Section 33 in respect of companyplete blindness and companyplete hearing impairment. The Government Order dated 08.08.2014 companymunicated the decision of the Government taken with companysultation of the High Court to go ahead with the selection to the post of Civil Judge numberifying the percentage of disability as 40-50 for partially blind and partially deaf for the selection for 162 posts of Civil Judge. The relevant portion of Government Order dated 08.08.2014 is as follows - In companytinuation of the Government letter fifth cited, I am directed to state that in view of the administrative exigencies and number to delay the selection, the High Court has companysidered the Tamil Nadu Public Service Commissions letter dated 04.08.2014 and accepts the proposal to go ahead with the selection for the posts of Civil Judge numberifying the percentage of disability as 40- 50 for partially blind and partially deaf, for the present selection alone. The Registrar General, High Court of Madras has therefore requested to go ahead with the issue of Notification immediately for the 162 posts of Civil Judge announcing 40-50 of disability for partially blind and partially deaf, for the present selection alone. A companyy of the D.O. letter seventh is enclosed for your reference. I am to request you to take the necessary steps to numberify the 162 vacancies for recruitment to the post of Civil Judge immediately. Yours faithfully Sd - For Principal Secretary to Government The advertisement, thus, clearly provided that post of Civil Judge has been identified as suitable for partially deaf partially blind ortho categories of differently abled persons 40-50 disability . In the online application submitted by petitioner in the companyumn of percentage of disability, he has only mentioned more than 40. The certificate of disability, which was submitted by the appellant as required by Rules, 2007 as well as the advertisement dated 26.08.2014 mentioned in Column 3 3 . Percentage of disability in his her case is 70. Thus, according to own case of the appellant, he was suffering with disability of 70, which made him ineligible for the post of Civil Judge advertised by numberification dated 26.08.2014 since the disability required for the post was only 40-50. We, thus, companyclude that as per the certificate submitted by the appellant that he suffers from 70 disability, he was ineligible for the post advertised vide numberification dated 26.08.2014. The issue is answered accordingly. The appellant in his writ petition filed in the Madras High Court although has numbericed the numberification dated 26.08.2014 calling for the recruitment to the 162 posts of Civil Judges issued by the Tamil Nadu Public Service Commission, but in the writ petition did number challenge the Clause F of the advertisement in so far it prescribed requirement of 40-50 for partially blind and partially deaf. Only following prayer was made For the aforesaid reasons, this Honble Court may be pleased to issue any appropriate Writ, Order or Direction and in particular issue a Writ in the nature of Certiorarified Mandamus to call for the records and to quash the impugned Oral Test List dated 01.04.2015 for selection of candidates for the Post of civil Judge Junior Division and companysequently nd direct the 2 Respondent to permit the petitioner to participate in the oral test and pass such other and further orders as may be deemed fit and to meet the ends of justice. During the pendency of the writ petition an amendment application was filed by the appellant to quash the Government letter dated 08.08.2014 which amendment application was allowed by the High Court and even in the amendment application filed by the appellant the numberification dated 26.08.2014 issued by the TNPC was number challenged. The appellant cannot be allowed to question the companydition of eligibility with regard to partial blindness i.e. 40-50 when he failed to challenge the advertisement dated 26.08.2014 providing for the said requirement. The appellant applied in pursuance of the above advertisement and participated in the written examination and when he was number called for oral test, he filed writ petition. It was under the interim order of the High Court that he was permitted to participate in oral test but the High Court by interim order had directed number to declare the result of the appellant. The appellant having failed to challenge Clause 4 F of the numberification dated 26.08.2014, he cannot be allowed to challenge the companydition of 40-50 partial blindness. We are in full agreement with the submission of the learned companynsel for the High Court that the writ petition was liable to be dismissed on this ground alone. Issue Nos.2 and 3 Issue Nos. 2 and 3 being interconnected are taken together. The Government order dated 08.08.2014 as already extracted above, addressed to the Tamil Nadu Public Service Commission states that the High Court has companysidered the Tamil Nadu Public Service Commissions letter dated 04.08.2014 and accepts the proposal to go ahead with the selection for the posts of Civil Judge numberifying the percentage of disability as 40- 50 for partially blind and partially deaf. Thus, the Government Order was issued after due companysultation of the High Court, which had agreed with providing for percentage of disability as 40-50 for partially blind and partially deaf for the post of Civil Judge Junior Division . Whether Condition of 40-50 for partially blind and partially deaf is a valid companydition or the said companydition is in breach of provisions of the Act, 1995, are questions to be answered. It is relevant to look at certain provisions of the Act, 1995 in this regard. Section 2 b defines Blindness in following manner - Blindness refers to a companydition where a person suffers from any of the following companyditions, namely - Total absence of sight. or Visual acuity number exceeding 6/60 or 20/200 Snellen in the better eye with companyrecting lenses or Limitation of the field of vision subtending an angle of 20 degree or worse Section 2 i defines disability to the following effect - disability meansblindness low vision leprosy-cured hearing impairment loco motor disability mental retardation mental illness Section 2 t of the Act, 1995 defines expression person with disability in the following words Section 2 t person with disability means a person suffering from number less than forty per cent of any disability as certified by a medical authority The above definition clearly means that person with disability is a person who is suffering from number less than 40 of any disability. Thus, benefit of reservation under the Act thus can be claimed only by a person who is suffering from 40 or more of any disability. For the purposes of present case, we are number companycerned with companyplete blindness, since by numberification dated 31.08.2012, exemption has already been granted under proviso to Section 33 of the Act, 1995 in reference to the post of Civil Judge Junior Division exempting companyplete blindness and companyplete hearing impairment for the post. Thus, those candidates, who are companypletely blind are clearly number eligible for the post. Section 2 u defines persons with low vision, which is as follows - u person with low vision means a person with impairment of visual functioning even after treatment or standard refractive companyrection but who uses or is potentially capable of using vision for the planning or execution of a task with appropriate assistive device The reservation of posts under the Act, 1995 for disabled differently challenged persons is provided in Section 33, which is to the following effect- Every appropriate Government shall appoint in every establishment such percentage of vacancies number less than three per cent. for persons or class of persons with disability of which one per cent. each shall be reserved for persons suffering from- i Blindness or low vision ii Bearing impairment iii Loco motor disability or cerebral palsy, in the posts identified for each disability Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by numberification subject to such companyditions, if any, as may be specified in such numberification, exempt any establishment from the provisions of this section. As per the Act, 1995, one per cent of vacancies were reserved for persons suffering from blindness or low vision. Clause 4 F of the advertisement refers to Government order dated 11.04.2005, 31.08.2012 and 08.08.2014. By the Government order dated 11.04.2005 post of Civil Judge Junior Division had been identified at Item No.102. Item No.102 which has already been extracted above makes it clear that categories of disabled persons suitable for the job are PB PD ORTHO partially blind partially deaf ortho . As numbericed above companyplete blindness being already exempted, the two posts of Civil Judges Junior Division have been reserved in the advertisement for partially blind, partially deaf and ortho. The blindness has been defined in Section 2 t as quoted above. The post has been identified for partially blind and number for companypletely blind person. As per the definition under Section 2 t of person with disability, a partially blind person having more than 40 disability is companytemplated to be person who is in the field of eligibility. Partially blind is a word which is number defined in the Act. A disability may be partial or total, a temporary or permanent. We are companycerned in this case with partial disability which is number total. One of the submissions of learned companynsel for the appellant in this companytext need to be companysidered. It is submitted that those who suffer from partial blindness of more than 50 are also partial blind hence how can they be excluded from companysideration. The word partial blind may be a general companycept but where a percentage has been fixed looking to nature of job, it cannot be said that all partially blind are eligible. There is a valid classification with a nexus to object sought to be achieved, when eligibility is fixed 40 to 50 of disability. In this companytext, it is relevant to numberice that when the posts were identified as Item No.102 by Government order dated 11.04.2005 physical requirements were also mentioned by the Government order which requirements were to the following words S ST W SE H RW The Government order dated 11.04.2005 has explained the terms of physical requirements, which are to the following effect Sl.No. Code Physical Requirements 1 S Work performed by sitting 2 ST Work performed by standing 3 RW Work performed by Reading Writing 4 W Work performed by Walking 5 B Work performed by Bending 6 SE Word performed by seeing 7 H Work performed by Hearing Speaking Thus, partially blind and partially deaf having physical requirements, as numbericed above, were identified for the post of Civil Judge Junior Division . The physical requirements were specified looking to the nature of the job of Civil Judge Junior Division . Partially blind and partially deaf disability of 40-50 has been pegged to achieve the object of appointing such partially blind and partially deaf physically disabled persons who are able to perform the duties of Civil Judge Junior Division . As numbericed above Government order dated 08.08.2014 was issued by the State Government after companysultation with the High Court and the TNPC specifying the partially blind and partially deaf as 40-50 taking into account all relevant companysiderations. In this companytext, it is relevant to numberice that the physical requirements which were identified by the Government by order dated 11.04.2005 for the post of Civil Judge Junior Division ultimately has been incorporated into the statutory Rules. The Tamil Nadu State Judicial Service Cadre and Recruitment Rules, 2007 have been amended by the Government Order dated 03.04.2018. Amended Rule 10 is as follows Reservation of appointments- Section 27 of the Tamil Nadu Government Servants Conditions of Service Act, 2016 Tamil Nadu Act 14 of 2016 relating to reservation of appointment and Section 34 of the Rights of Persons with Disabilities Act, 2016 Central Act 49 of 2016 shall apply for appointment to the cadres of District Judge Entry Level and Civil Judge, by direct recruitment. Provided that four percent of vacancies shall be reserved for the following persons with benchmark disabilities, namely- i .One percent for the persons in the following category of disabilities under the category of Locomotor disability as defined in the Schedule appended to the Rights of Persons with Disabilities Act, 2016 - Locomotor disability of One Arm, One Leg and Both Legs Leprosy cured person Dwarfism Acid attack victims One percent for the persons with Low vision under the category of Visual Impairment as defined in the Schedule appended to the Rights of Persons with Disabilities Act 2016 One percent for the persons with hard of hearing under the category of Hearing Impairment as defined in the Schedule appended to the Rights of Persons with Disabilities Act, 2016 iv . Remaining One percent for the persons mentioned in the above clauses i , ii iii , above, on rotation basis. Explanation- The roster points meant for the candidates with benchmark disabilities mentioned in clauses d and e of sub section 1 of Section 34 of the said Central Act, shall be allotted to the candidates in categories i to iii mentioned above, in the same order Provided further that the candidates who perform the following physical activities alone are Eligible- a - Work Performed by Sitting - S b - Work Performed by Standing - ST c - Work Performed by Writing - W d - Work Performed by Seeing - SE e - Work Performed by Hearing - H f - Work Performed by Reading and Writing - RW g - Communicating Communicating would also include verbal or number-verbal companymunication C. The explanation of the Rule 10 companytains the physical requirements which were earlier numbericed in the Government order dated 11.04.2005. It is true that the amendment made in Rule 10 by the Government order dated 03.04.2018 has numberapplication and number relevant for determining the issue in the present case but incorporation of a proviso into the explanation of Rule 10 manifests the intention of Rule making authority which was earlier manifested in the executive order dated 11.04.2005. There is another important aspect of the matter, which needs to be dealt with. Under Constitution of India, companytrol over judicial services is vested with the respective High Court. Articles 233, 234 and 235 of the Constitution of India may be referred in this companytext. The present case is a case of recruitment to the post of Civil Judge Junior Division , which recruitment is undertaken in accordance with Rules, 2007 framed in exercise of the powers companyferred by Articles 233, 233A, 234, 235 and proviso to Article 309 of the Constitution of India by the Governor of Tamil Nadu in companysultation with the High Court of Madras and Tamil Nadu Public Service Commission, which is clear from the opening words of the Rules as given below- In exercise of the powers companyferred by Article 233, 233A, 234, 235 and the proviso to Article 309 of the Constitution of India, the Governor of Tamil Nadu in companysultation with the High Court, Madras and Tamil Nadu Public Service Commission, wherever necessary, hereby makes the following Rules The Judicial service being public service is included in Entry 41 List II of the Seventh Schedule of the Constitution. The State having companypetence to legislate on Entry 41, i.e. State public Services State Public Service Commission, it has also executive power under Article 154 of the Constitution of India. Thus, the State Government was fully companypetent to take any executive decision with regard to recruitment on the post of Civil Judge Junior Division , supplementing the Statutory Rules, 2007. At this stage, we may deal with one of the submissions, which has been raised by the learned companynsel for the appellants. Learned companynsel for the appellant submits that High Court has relied on proposed amendments to Rules, 2007, which was undertaken by the State Government with the High Court on its administrative side in pursuance of a Division Bench judgment of Madras High Court in Writ Petition No. 27089 of 2008. The High Court in Paragraph No. 22 xii has numbericed the Government Order dated 14.03.2013 by which the Government of Tamil Nadu has sent a letter dated 06.02.2013 to the High Court seeking approval for an amendment to the Recruitment Rules especially Rule 10. A draft of the amendment proposed to the Rules 5 and 10 was also extracted in Paragraph No. 22 xii . Learned companynsel submits that the proposed amendment was under companysideration of the High Court and several companyrespondences took place between the High Court and the State of Tamil Nadu but amendments companyld number be finalised till the companypletion of selection hence reliance by the High Court on the proposed amendments was wholly uncalled for. High Court has also numbericed that by resolution of the Full Court dated 05.07.2014, the matter was referred to the Rule Committee but before the Rule Committee companyld take a decision, the process of selection of 162 posts had begun. High Court after numbericing the aforesaid fact has further numbericed the latter dated 04.08.2014 sent by the Public Service Commission to the Government seeking companysent of the Government to issue a Notification for recruitment, fixing 40-50 disability for partially blind and partially deaf candidates. Relevant facts in this companytext have been numbericed in Paragraph No. 22 xviii , which is to the following effect- Therefore, the Public Service Commission sent a letter dated 4.8.2014 to the Government seeking the companysent of the Government to issue a Notification for recruitment, fixing 40-50 disability for partially blind and partially deaf candidates. The Government sought the opinion of the High Court and the High Court gave numberobjections. Thereafter, the Government issued the impugned companymunication dated 8.8.2014 directing the Service Commission to initiate the process of selection of 162 Civil Judges, by numberifying the percentage of disability as 40-50 for partially blind and partially deaf, for the present selection alone. This is why paragraph 4.F was incorporated in the Notification bearing No. 15/2014 dated 26.8.2014 issued by the Public Service Commission. High Court, thus, was well aware that the numberification dated 26.08.2014 issued by the Public Service Commission was initiated on the basis of the Government Order dated 04.08.2014 and the amendment of the Rules as proposed had numberhing to do with the advertisement issued by the Public Service Commission. The advertisement dated 26.08.2014 also has specifically referred to the G.O. of the Government dated 08.08.2014. Thus, in the recruitment in question the proposed amendment in the Rules neither played any role number had any relevance. High Court has numbericed the aforesaid facts, for the companypletion of facts. It is clear that the proposed amendments had numberrelevance with regard to recruitment in question. The submission of the learned companynsel for the appellants that High Court has relied on the proposed amendments, thus, has numbersubstance. We number again revert back to the Constitutional Scheme with regard to subordinate judiciary. Section 33 of the Act, 1995 provides that reservation for persons or class of persons with classes of disability, which is referable to Article 16 1 of the Constitution of India. This Court had occasion to companysider a State Legislation referable to Article 16 4 of the Constitution of India in State of Bihar and Another Vs. Bal Mukund Sah and Others, 2000 4 SCC 640. A Constitution Bench in the above case had occasion to companysider a question of recruitment of District Judge and other judicial officers in the State of Bihar in companytext of a State Legislation namely Bihar Reservation of Vacancies in Posts and Services for Scheduled Castes, Scheduled Tribes and other Backward Classes Act, 1991. By the aforesaid Act, 1991 reservation for direct recruitment to the posts in the judiciary of the State were provided for. Advertisement was issued reserving posts as per the Act, 1991, which was challenged in the High Court. High Court has struck down the terms of advertisement holding it ultra vires to the provision of Article 233 of the Constitution. The State of Bihar took the matter to this Court. A Constitution Bench of this Court in the above case came to examine the issue of recruitment to the judicial service in companytext of the reservation as provided by the State Act. After numbericing the Constitutional Scheme under Articles 233, 234, 235 and 309 and the Rules framed by the Governor for recruiting judicial officers, this Court laid down following in Paragraph No. 29- But so far as the entry points are companycerned, namely, recruitment and appointment to the posts of Presiding Officers of the companyrts subordinate to the High Courts, only Articles 233 and 234 would govern the field. Article 234 lays down the procedure and the method of recruiting judicial officers at grass-root level being Subordinate Judges and Munsifs as laid down by the 1955 Rules. These Rules are also framed by the Governor of Bihar in exercise of his powers under Article 234 obviously after the companysultation of the High Court and the Public Service Commission. Rules regarding the procedure of selection to be followed by the State Public Service Commission as found in Rules 4 to 17 deal with the method to be adopted by the Public Service Commission while selecting candidates who offer their candidature for the posts advertised to be filled in. These Rules obviously require companysultation with the Commission on the procedural aspect of selection process. But so far as the High Court is companycerned, its companysultation becomes pivotal and relevant by the thrust of Article 233 itself as it is the High Court which has to companytrol the candidates, who ultimately on getting selected, have to act as Judges at the lowest level of the Judiciary and whose posting, promotion and grant of leave and other judicial companytrol would vest only in the High Court, as per Article 235 first part, once they enter the Judicial Service at grass-root level. Thus companysultation of the Governor with the High Court under Article 234 is entirely of a different type as companypared to his companysultation with the Public Service Commission about the procedural aspect of selection This Court has laid down that both Articles 309 and 245 will have to be read subject to Articles 233 and 234. In Paragraph No. 32, following has been laid down- It is true, as submitted by learned Senior Counsel, Shri Dwivedi for the appellant State that under Article 16 4 the State is enabled to provide for reservations in services. But so far as Judicial Service is companycerned, such reservation can be made by the Governor, in exercise of his rule-making power only after companysultation with the High Court. The enactment of any statutory provision dehors companysultation with the High Court for regulating the recruitment to the District Judiciary and to the Subordinate Judiciary will clearly fly in the face of the companyplete scheme of recruitment and appointment to the Subordinate Judiciary and the exclusive field earmarked in companynection with such appointments by Articles 233 and 234. It is number as if that the High Courts being companystitutional functionaries may be oblivious of the need for a scheme of reservation if necessary in appropriate cases by resorting to the enabling provision under Article 16 4 . The High Courts can get companysulted by the Governor for framing appropriate rules regarding reservation for governing recruitment under Articles 233 and 234. But so long as it is number done, the Legislature cannot, by an indirect method, companypletely bypassing the High Court and exercising its legislative power, circumvent and cut across the very scheme of recruitment and appointment to the District Judiciary as envisaged by the makers of the Constitution. Such an exercise, apart from being totally forbidden by the companystitutional scheme, will also fall foul on the companycept relating to separation of powers between the Legislature, the Executive and the Judiciary as well as the fundamental companycept of an independent Judiciary. Both these companycepts are number elevated to the level of basic structure of the Constitution and are the very heart of the companystitutional scheme. From the facts as numbericed above, the State Government has companysulted both the Public Service Commission as well as the High Court in reference to appointment of disabled persons on the post of Civil Judge Junior Division . There is companysensus in the view of State Government, Public Service Commission and the High Court that partially blind and partially deaf persons suffering with disability be allowed to participate in the recruitment, who has disability of 40-50. The High Court being well aware about the requirements for the appointment in the judicial service and it being guardian of subordinate judiciary, has a say in the eligibility of a person, who seeks appointment on the post of Civil Judge Junior Division . Judicial service being part of Public Service, the State in companysultation with the High companyrt is fully empowered to lay down the eligibilities for selection on the post of Civil Judge Junior Division . The Government Order dated 08.08.2014 supplements the Rules, 2007 and in numbermanner companytravene any of the provisions of the Rules. The companydition of having 40-50 disability was prescribed by the Public Service Commission as per the Government Order issued by the State of Tamil Nadu after companysultation with the High Court. The above companydition in numbermanner can be said to be invalid. Learned companynsel for the appellant has submitted that restricting the disability to 40-50 in reference to persons having partial blindness is clearly denying the of reservation as provided under Section 33 of the Act, 1995 and is number in accord with Section 33 of the Act. Section 33 of the Act, 1995 requires that every appropriate Government shall appoint in every establishment such percentage of vacancies number less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from Blindness or low vision. This Court in Government of India Vs. Ravi Prakash Gupta and Another, 2010 7 SCC 626, in Paragraph No. 29 laid down that a duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned in Section 33. Following was observed in Paragraph No.29- In other words, reservation under Section 33 of the Act is number dependent on identification, as urged on behalf of the Union of India, though a duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned in Section 33 of the Act in respect of persons suffering from the disabilities spelt out therein This Court in Union of India and Another Vs. National Federation of the Blind and Others, 2013 10 SCC 772 has elaborately examined the objects and reasons of the Act, 1995 and laid down following in Paragraph No. 24- Although, the Disability Rights Movement in India companymenced way back in 1977, of which Respondent 1 herein was an active participant, it acquired the requisite sanction only at the launch of the Asian and Pacific Decade of Disabled Persons in 19932002, which gave a definite boost to the movement. The main need that emerged from the meet was for a companyprehensive legislation to protect the rights of persons with disabilities. In this light, the crucial legislation was enacted in 1995 viz. the Persons with Disabilities Equal Opportunities, Protection of Rights and Full Participation Act, 1995 which empowers persons with disabilities and ensures protection of their rights. The Act, in addition to its other prospects, also seeks for better employment opportunities to persons with disabilities by way of reservation of posts and establishment of a special employment exchange for them. For the same, Section 32 of the Act stipulates for identification of posts which can be reserved for persons with disabilities. Section 33 provides for reservation of posts and Section 36 thereof provides that in case a vacancy is number filled up due to number-availability of a suitable person with disability, in any recruitment year such vacancy is to be carried forward in the succeeding recruitment year. The difference of opinion between the appellants and the respondents arises on the point of interpretation of these sections. In the above case, this Court has occasion to companysider Section 33 of the Act, 1995. This Court dealt with the manner of companyputing 3 reservation for the persons with the disabilities as per Section 33 of the Act. Another issue which was companysidered as to whether post-based reservation must be adhered to or vacancy-based reservation. Learned companynsel for the appellant has relied on the above judgment in support of his submission that objective of the Act, 1995 as numbericed by this Court have to be fulfilled and restricting the disability to 40-50 for purpose of eligibility for the post of Civil Judge Junior Division shall frustrate the provisions of Section 33 as well as the object of the Act. The legal position with regard to reservation of posts for persons with disability is number well established that every appropriate Government is obliged to reserve posts for persons or class of persons with disability. In the present case, we are companycerned with partial disability. The present is number a case where the respondent has number reserved the post for partial disability as required by Section 33 of the Act, 1995. Thus, requirement of reservation as mandated by Section 33 is clearly fulfilled. The issue is regarding eligibility of appellant to participate in the selection and as to whether the requirement in the advertisement that only those, who suffer from disability of 40-50 are eligible, is companytrary to the Act, 1995 or is in breach of any statutory provision. The State, which is appointing authority of Public Service in companysultation with the High Court with reference to post of Civil Judge Junior Division can very well lay down the essential eligibilities and requirement for the post. When the State, High Court and Public Service Commission are of the view that disability, which is suitable for appointment on the post of Civil Judge should be between 40-50, the said prescription does number violate any statutory provision number companytravene any of the provisions of the Act, 1995. It is well within the power of appointing authority to prescribe eligibility looking to the nature of the job, which is to be performed by holder of a post. A judicial officer in a State has to possess reasonable limit of the faculties of hearing, sight and speech in order to hear cases and write judgments and, therefore, stipulating a limit of 50 disability in hearing impairment or visual impairment as a companydition to be eligible for the post is a legitimate restriction i.e. fair, logical and reasonable. The High Court in its additional statement has incapsulated the functions and duties of Civil Judge in following words- That in so far as the area of discharge of functions and duties of the judicial officers viz., Civil Judges is companycerned this involves performances of strenuous dutiesthey have to read documents, pleadings and ascertain facts and issues monitor proceedings to ensure that all applicable rules and procedures are strictly followed without any violation advise advocates, litigants and Court personnel regarding companyduct, issues, and proceedings participate in judicial proceedings to help in resolving disputes preside over hearings and hear allegations made by plaintiffs and defendants to determine whether the evidence supports the charges or the averments made write decisions on cases independently after reading and analysing evidence and documents while recording evidence observe the demeanour of witnesses etc. Impaired vision can only make it extremely difficult, even impossible, to perform any of these functions at all. All these apart, he she has to perform duties such as companyducting inquiries, recording dying declarations, going through identification parades, record statements of victims, companyduct in-camera proceedings, passing orders on remand and extension and other administrative functions. In so far as District judges are companycerned, apart from performing their usual judicial duties, they have to perform a myriad administrative duties also. Therefore, creating any reservation in appointment for those with disabilities beyond the 50 level is far from advisable as it may create practical and seemingly other avoidable companyplications. Moreover, given the need to prepare judgments based on the case papers and other material records in a companyfidential manner, the assistance of a scribe or the like companypletely takes away the secrecy and discreetness that companye with the demands of the post.

M.KHANWILKAR, J. The short question involved in this appeal is whether the High Court was justified in directing stay of the disciplinary proceedings initiated by the appellant-Bank against the respondent until the closure of recording of prosecution evidence in the criminal case instituted against the respondent, based on the same facts? The respondent was appointed in the clerical cadre of the appellant- Bank. At the relevant time, she was working as an Assistant Clearing . Allegedly, some time on 29th May 2006, the respondent by her acts of companymission and omission caused loss to the Bank in the sum of Rs. 44,40,819/- by granting credit to one Laxman Parsad Ratre who was an employee of Bhilai Steel Plant . The respondent herself introduced Laxman Parsad Ratre to open an account in the appellant Bank. On 7th November 2006, the respondent was placed under suspension for indulging in gross irregularities and misconduct including of misplacing the clearing instruments relating to various customers. The respondent vide letter dated 8th November 2006, number only admitted her misdeeds but assured the Chief Manager of returning the amount companymensurate to the financial loss caused to the Bank because of her lapses at the earliest, failing which suitable action can proceed against her. The said companymunication reads thus To, Chief Manager State Bank of India Main Branch, Durg Ch.G. Sir, Context - Your memo number Serial number branch/2006 07/196 dated 30.10.2006. In companytext of your aforesaid memo I am sorry for the wrong ways adopted by me. I admit that I have done a wrong deed and I am suffering from the feeling of guilt. Whatever amount companyes in this companytext that I will try to pay as early as possible after obtaining the amount from the known sources. At present I am able to arrange Rs. 60,000/- and I am depositing the same. By mortgaging the family movable and immovable property, arrangement for obtaining the amount, thought and efforts are companytinued for making such arrangement as early as possible. Because this works take time, I should be given proper time to go further in effort and to finish the work of mortgage. Our relatives staying nearby and far away and in other states, with them my companytact is companytinued and arrangement for the amount is companytinued. This work is also taking time. Therefore to companytinue my effort proper time to be given to me. Amount of my C.P.F and salary is to be used for companypensating this amount. I will keep on informing you regarding my every effort and will deposit the money received in bank account. I have done this work in mental stress and due to pressure of situation for which my heart is feeling sorry that I have used all wrong ways and means. I have two small children, wife and old and ill mother and father, companysidering all this give me an opportunity to deposit the amount received from my aforesaid efforts for which I will be grateful to you for my whole life. I have number taken such a wrong step in fourteen years of my bank service but this step I have taken due to mental stress and situation. By giving me apology, proper time to accomplish my efforts. I assure you that I will number companymit this kind of mistake in future. If I fail in the above efforts, you are independent for initiating proceedings on me. Thanking you Dated - 8.11.06 Sd - Neelam Nag Senior Assistant Nevertheless, a FIR was lodged in companynection with the said irregularities and misdeeds companymitted by the respondent bearing FIR No.1043/2006, for offences punishable under Sections 409, 34 of the IPC by appellant-Bank. Laxman Parsad Ratre has also been named as an accused in the said FIR. It is alleged in the FIR that Laxman Parsad Ratre who had account in State Bank of India issued two cheques in favour of Tanishk Securities both valued Rs.6,50,000/-, knowing that he did number have balance in his account. Those cheques were deposited by Tanishk Securities in their T.I. Branch Bhilai for clearance. U.T.I. Branch dispatched those cheques to State Bank of India at Durg, Bhilai. The respondent was posted in that Branch at the relevant time, who in companynivance with the companyaccused dispatched those cheques to State Bank of India, Malviya Nagar Branch even though Laxman Parsad Ratre did number have account in that Branch. The cheques were returned by that Branch. The respondent intentionally did number immediately return those cheques to U.T.I. Branch at Bhilai. Resultantly, T.I. Branch at Bhilai as per the settled practice assumed that the cheques have been cleared and released the payment to Tanishk Securities, by endorsing payment in the name of State Bank of India. Thereby causing a loss of Rs. 13 lakhs to State Bank of India. That was revealed only on 28.10.2006 during reconciliation of accounts of the two Banks. Further, the respondent herself had introduced Laxman Parsad Ratre for opening an account in the appellant-Bank. She has admitted her lapse in the companymunication sent by her to the Chief Manager of the appellant-Bank dated 8th November, 2006. In a written admission given on 6th November, 2006 Laxman Parsad Ratre mentioned that he was involved in a criminal activity in companynivance with the respondent. The FIR has been registered for offence of possible loss of Rs. 29,53,262/-. After registration of the FIR, the local police proceeded with the investigation and filed charge-sheet No. 63/2007, under Section 173 of the Criminal Procedure Code, on 6th February, 2007, before the Magistrate. Criminal Complaint No. 1043/2006 was registered for offences punishable under Sections 409, 34 of IPC. The companypetent Court then proceeded to frame charges against the respondent on 12th June 2007. Thereafter, on 7th April, 2008, the appellants, through appellant No.2, called upon the respondent to offer an explanation about the alleged irregularities and misdeeds companymitted by her. The respondent vide companymunication dated 15th April, 2008 simply denied all the allegations. The Competent Authority, therefore, decided to initiate departmental enquiry against the respondent, for which, charge-sheet dated 19th September, 2008 was issued to the respondent, which reads thus Shri Neelam Nag, Senior Assistant Suspended Indian State bank Bhilai Steel Plant Area Branch Bhilai Sr. No. Ankara Area 3/ Anushansha 820 19th Sep, 2008 Charge sheet I in the capacity of disciplinary authority charge following charges upon you You have companymitted following mistake during working in Durg Branch. You have given identification to Lachhman Parsad Ratre for opening the account thereafter through this account through accounts you have manage the operation of the Fund of other administrative accounts. Through saving account number 01119-0021348 two cheques bearing number 463553 and 4635554 which is amounting to Rs. 6,50,00.00 each in favour of Tanishk Securities on 29.5.2006 which was due Durg Branch. Which was submitted by T.I. Bank for adjustment, due to number insufficient amount in Durg Branch instead of returning to Bhilai Branch intentionally for making the balance of adjustment has transfer to Malviya Nagar Durg Branch with responding. Two cheque bearing number 4635553 and 463554 each amounting to Rs. 65,0000/- which were due to Durg Branch, Malviya Nagar Branch had returned with T.R. on 31.5.2006, which should have return by you to Head Branch Bililai without any proceeding, but you intentionally keep it with you. The above incident detail information companye in light on 28.10.2006 held branch clearing of the general account in clearing it make clear that in Udhavi schedule 07 Rupees 13,00,000 entries which was originate by Malviya Nagar Durg Branch, it was number responded by Durg Branch. You had attached with Tanishk Securities companymodity trading and you by misusing the amount of Chattisgarh State Electricity division got deposit in the account of Shri Lachhman Parsad Ratre. You have removed the original slip of deposit of the account of chattisgarh State Electricity division and in place of it install the slip of Shri Rate saving bank account therefore the dealing and clearing of the saving bank account which has companymitted by you, the companyplete detail is clear and enclosed in Annexure 2. Therefore you with the intention of cheating you have divert the total amount of Rs. 48,0000 of 16 challan of State Govt. on 4.5.2006 Annexure 2 11 . The Head Branch Bhilai through clearing house has closed to submit due cheque in Durg Branch, there after the cheque of various bank situated at Bhilai which has deposited in Durg Branch should presented for companylection, you changing the deposit slip of Chattisgarh State Electricity Division current account preparing the deposit slip of Lachhman Ratre has changed. Therefore the FDR of current of Chattisgarh State Electricity division has misused Annexure 2 12 . On 9th August, 2006 Chattisgarh State Electricity divisions has deposited two cheque total amounting to Rs. 125916/- of other banks for deposit in their current account you by changing the slip. Due to reference on the same day cheque number 463549 amounting to Rs. 125916 I.D.B.I. Branch Bhilai has submitted these cheque in Durg Branch which was in the saving bank account of Shri Ratre, due to number having insufficient fund in the account of Shri Ratre returned but the above cheque through clearing by number returning but by you in the deposit of clearing scroll and transfer both side with cunning make balance. Therefore you by number returning the cheque intentionally with cheating has tampered the current account cheque of Chattisgarh State Electricity division. Therefore with well plan manner the amounting to Rs. 4440891 has deposit in the fake of account of Shri Rate and misuse the above amount and fix in companymodity market. It clear detail is enclosed in Annexure 1 2 in which the current account of Chattisgarh State Electricity division and the amount of Govt. challan with cheating deposit in the account of Shri Ratre and misuse by you. Therefore the current amount of Chattisgarh State Electricity Division amounting to Rs. 1653262 which has number cleared until number, in the same manner branch clearing general account amounting to Rs. 1300000 which is still unclear pending in Malviya Nagar Durg Branch. Therefore a huge amount loss has suffered by bank, for which you are companypletely liable. Your above companyduct against the bank interest and second party companypromise dt. 6.8.2002 para Sardi PHRD/57 page 7 para 5 a and J companyes under gross misconduct and punishable. In this regard you are hereby directed in regard to charge sheet submit your written reply within 7 days of the receipt of this letter, in case during this period you did number give your reply then I should admit that in regard to this letter you did number want to say numberhing and in this regard bank shall fee to take action. In the second companyy of this letter by making companyplete signature and date given the acknowledgement. Sd - Disciplinary Officer and Assistant Chief Managing Director Administration Sd - Enclosure above. 57/dpc staff Signature 20.9.2008 The appellant No.2 then instituted disciplinary proceedings against the respondent on 23rd October 2008, which fact was numberified to the respondent on 31st October 2008, by the appellant No. 3 calling upon her to attend the same. The respondent did number companyperate and instead protested the initiation of such disciplinary proceedings against her. She was then advised to file a writ petition bearing Writ Petition No.4629/2009 before the High Court of Chhatisgarh at Bilaspur. The learned Single Judge found merits in the stand taken by the respondent - that the facts involved in the criminal case registered against the respondent and initiation of disciplinary proceedings, was based on the same facts. The learned Single Judge also adverted to Clause 4 of the Memorandum of Settlement dated 10th April, 2002 which grants protection to the employees of the appellant-Bank from facing departmental proceedings until the companypletion of the trial of the criminal case. On that reasoning, the learned Single Judge allowed the Writ Petition and directed the appellants to forbear from proceeding with the disciplinary proceedings until companypletion of the trial. This decision was challenged by the appellants by way of Writ Appeal No.80/2010 before the Division Bench. The Division Bench affirmed the view taken by the learned Single Judge and negatived the stand taken by the appellant in her favour. The Division Bench held that the respondent may suffer disadvantage and prejudice if she was companypelled to disclose her defence in the departmental proceedings, which is likely to be used in the criminal case pending against her. The Division Bench, however, modified the operative order passed by the learned Single Judge by passing following directions Therefore, we dispose of this appeal by upholding the order of the learned Single Judge with the following directions The A.C.J.M. Durg is directed to companyclude the trial which is pending since 2006 on day to day basis, in which we have been informed that one witness has already been examined, The writ appellants would be free to proceed further in the disciplinary proceedings as soon as the case from the prosecution side is closed. emphasis supplied The appellants relying on a recent decision of this Court in the case of Stanzen Toyotetsu India Private Limited vs. Girish V. Ors.1 companytend that the departmental proceedings cannot be suspended indefinitely or delayed unduly. It is companytended that inspite of the direction given by the Division Bench to the companycerned criminal Court to take up the case pending since 2006 on day-today basis, the trial is still pending and only 3 witnesses out of total 18 prosecution witnesses cited in the charge-sheet have been examined. There is numberhope of an early companypletion of the trial number of companypletion of prosecution evidence. The delay is attributable to the accused in the said criminal case, including the respondent herein. In the backdrop of this grievance vide order dated 1st July 2016, the State of Chhattisgarh was directed by this Court to file a status report regarding the criminal proceedings launched against the respondent, giving details of the total number of prosecution witnesses cited in the charge-sheet number of witnesses examined so far and the cause for delay in the companypletion of trial. The State of Chhattisgarh has filed an affidavit of the Additional Superintendent of Police dated 1st August 2016. From this affidavit, it is numbericed that the criminal trial No.1043/2006 before framing of charge on 12th June 2007, was listed on 13 dates. After framing of charge, the matter has proceeded before the Sessions Court on 133 dates. In paragraph 9 to 11 of the affidavit, the break up has been given as under It is further respectfully submitted that the perusal of Court proceedings of 133 dates reveal that the delay in companypletion of trial was due to multiple reasons. It is submitted that on some dates, the case was adjourned due to absence of accused persons. On some dates, the case was adjourned as the prosecutor was absent. The case was also adjourned due to number-availability of files as it was sent to the Sessions Court for deciding the Bail Application u s 439 CrPC. The case was also adjourned on the application made by the accused persons to make available some documents. The case was also adjourned due to Ld. Presiding Officer on leave, the transfer of Presiding Officer, the change of Court. The case was also adjourned due to strike by the Lawyers or due to Court holiday. In the gist of dates on which the case was listed before the Ld. Trial Court, are as follows No. Particulars Reason for Delay Dates Accused Laxman Ratre number present 06 Accused Neelam Nag number present 14 Prosecution witnesses number present 10 Accused persons number present 05 ADPO number present 23 Documents 07 Arguments 05 Application for bail 07 Receiving of demand letter 06 Case Diary sent to the Magistrate 05 Receiving of Diary 04 Court holiday 03 Strike of Advocates 02 Service of companyy of the case 01 Change of charges 01 Time sought by the Advocates of accused 01 persons Presiding Officer on leave 05 Transfer of Presiding Officer 03 Reply 04 Keeping current status 04 Evidence 10 Case sent to companyying department 03 Issuance of instruction regarding case 01 hand-over Receiving of case on transfer 01 Framing of charges 01 Order 01 133 DAYS TOTAL It is further submitted that the perusal of the Court proceedings reveal the dates on which, the prosecution witness were present and the outcome on that date 30.06.2007 Prosecution witnesses Joy C. Aryakara and Pushpkala present in Court, however, since the matter was fixed for 02.07.2007, they were asked to companye again on that date. 02.07.2007 The above 2 prosecution witnesses were present, however, they companyld number examined due to number-availability of case diary and seized documents. 18.07.2008 prosecution witness Pushpkala present in Court however, she companyld number be examined since the Ld. Presiding Officer was on leave. 09.03.2009 Prosecution witness Pushpkala present in Court however, she companyld number be examined. 08.10.2010 Prosecution witnesses Joy C. Aryakara and Ms. Pushpkala present in Court, however, they companyld number be examined since companyaccused Laxman Ratre was number present number any advocate appeared on his behalf. 22.07.2011 Prosecution witness Pushpkala was examined Prosecution witness Joy C. Aryakara also present in Court however, the defence refused to crossexamine on the ground of number-availability of certain bank documents. This prosecution witness was therefore companyld number be cross-examined. 15.09.2011 prosecution witness K.G. Goswami present in Court however, the examination companyld number take place due to absence of accused respondent No.1 Neelam Nag. 24.09.2011 Prosecution witnesses KG. Goswami and N. Chandrashekhar present in Court. The companyaccused Laxman Ratre is absent. Witness N. Chandrashekhar companyld number be examined due to number-availability of some documents. 04.11.2011 Witness N. Chandrashekhar present. The examination companyld number take place due to number-availability of certain documents. 01.09.2012 Prosecution witness A.S. Jitendra present in Court. The accused Respondent No.1 Neelam Nag was absent, however, at the request of his Counsel, the examination of prosecution witness was deferred. 03.09.2015 Prosecution witness Ramesh Kumar present in Court. The accused Neelam Nag was absent. Examination of witness did number take place. 02.11.2015 Prosecution witness Ramesh Kumar Present. The accused Neelam Nag was absent. Examination of witness did number take place. It is submitted that 3 prosecution witnesses have been examined. The delay in companypletion of trial is due to reasons mentioned in the above paras. Relying on these facts, the appellants companytend that numberfurther indulgence can be shown to the respondent and the protection given to the respondent by the High Court should be vacated keeping in mind the exposition in the above mentioned reported decision. As regards the argument of the respondent that the disciplinary proceedings must be suspended in view of Clause 4 of the Memorandum of Settlement dated 10th April 2002, arrived at by the Management of 52 A Class Banks as represented by the Indian Banks Association and their workmen under Section 2 p and Section 18 1 of the Industrial Disputes Act, that cannot be companysidered as a legal bar atleast in the fact situation of the present case. The interpretation of Clause 4 of the said settlement, as put forth by the appellant, would further the cause of justice and in particular larger public interest, companysidering the fact that the misconduct is in relation to embezzlement of substantial amount by an employee of the public sector bank - which has caused financial loss number only to the bank but resultantly to the public exchequer. It is in the interest of all companycerned that the action, as permissible in law, must be taken forward in companynection with the gross misconduct and the provision in the Memorandum of Settlement such as Clause 4 cannot be treated as an impediment thereto. Any other interpretation of Clause 4 of the Settlement would be against public policy and also encouraging unscrupulous employees of the bank to stall the disciplinary proceedings by taking advantage of the pending criminal case, which is an independent action in law. The respondent being named as an accused in the criminal case and also responsible for prolonging the trial of the criminal case, cannot be permitted to take advantage of her own wrong. The respondent, on the other hand, supported the view taken by the High Court and companytends that, in view of Clause 4 of the Memorandum of Settlement and the settled legal position, the disciplinary proceedings must be put on hold atleast until the recording and closure of evidence of prosecution witnesses in the criminal case, as directed by the Division Bench. That is essential because the charge framed against the respondent in the criminal case and the charge-sheet issued by the disciplinary authority against the respondent is based on the same set of facts. The defence of the respondent in disciplinary proceedings may cause serious prejudice to the respondent in the criminal case. According to the respondent, in view of the companyplexity of the facts and the evidence necessary to substantiate the same, it is advisable and essential to protect the respondent from being exposed to disclosure of her defence which may be identical to one to be taken in the criminal case or for that matter companypel her to depose against herself on those facts. We have heard the learned companynsel for the parties at some length. The only question that arises for companysideration, is numbermore res-integra. It is well-settled that there is numberlegal bar to the companyduct of the disciplinary proceedings and criminal trial simultaneously. However, numberstraightjacket formula can be spelt out and the Court has to keep in mind the broad approach to be adopted in such matters on case to case basis. The companytour of the approach to be adopted by the Court has been delineated in series of decisions. This Court in Karnataka SRTC vs. M.G.Vittal Rao2 has summed up the same in the following words There is numberlegal bar for both the proceedings to go on simultaneously. The only valid ground for claiming that the disciplinary proceedings may be stated would be to ensure that the defence of the employee in the criminal case may number be prejudiced. But even such grounds would be available only in cases involving companyplex questions of facts or law. Such defence ought number to be permitted to unnecessarily delay the departmental proceedings. The interest of the delinquent officer as well as the employer clearly lies in a prompt companyclusion of the disciplinary proceedings. Departmental proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is companymon. emphasis supplied The recent decision relied by the appellant in the case of Stanzen supra , has adverted to the relevant decisions3 including the case of G.Vittal Rao supra . After adverting to those decisions, in paragraph 16, this Court opined as under Suffice it to say that while there is numberlegal bar to the holding of the disciplinary proceedings and the criminal trial simultaneously, stay of disciplinary proceedings may be an advisable companyrse in cases where the criminal charge against the employee is grave and companytinuance of the disciplinary proceedings is likely to prejudice their defence before the criminal Court. Gravity of the charge is, however, number by itself enough to determine the question unless the charge involves companyplicated question of law and fact. The Court examining the question must also keep in mind that criminal trials get prolonged indefinitely especially where the number of accused arraigned for trial is large as is the case at hand and so are the number of witnesses cited by the prosecution. The Court, therefore, has to draw a balance between the need for a fair trial to the accused on the one hand and the companypeting demand for an expeditious companyclusion of the ongoing disciplinary proceedings on the other. An early companyclusion of the disciplinary proceedings has itself been seen by this Court to be in the interest of the employees. emphasis supplied The Court then went on to examine the facts of that case and observed in para 18 as follows 18. .The charge-sheet, it is evident from the record, was filed on 20.8.2011. The Charges were framed on 20-12-2011. The trial Court has ever since then examined only three witnesses so far out of a total of 23 witnesses cited in the charge-sheet. Going by the pace at which the trial Court is examining the witnesses, it would take another five years before the trial may be companycluded. The High Court has in the judgment under appeal given five months to the trial Court to companyclude the trial. More than fifteen months has rolled by ever since that order, without the trial going anywhere near companypletion. The disciplinary proceedings cannot remain stayed for an indefinitely long period. Such inordinate delay is neither in the interest of the appellant Company number the respondents who are under suspension and surviving on subsistence allowance emphasis supplied In paragraph 19, the Court proceeded to companyclude thus In the circumstances and taking into companysideration all aspects mentioned above as also keeping in view the fact that all the three Courts below have exercised their discretion in favour of staying the ongoing disciplinary proceedings, we do number companysider it fit to vacate the said order straightaway. Interests of justice would, in our opinion, be sufficiently served if we direct the Court dealing with the criminal charges against the respondents to companyclude the proceedings as expeditiously as possible but in any case within a period of one year from the date of this order. We hope and trust that the trial Court will take effective steps to ensure that the witnesses are served, appear and are examined. The Court may for that purpose adjourn the case for numbermore than a fortnight every time an adjournment is necessary. We also expect the accused in the criminal case to companyperate with the trial Court for an early companypletion of the proceedings. We say so because experience has shown that the trials often linger on for a long time on account of number-availability of the defence lawyers to cross-examine the witnesses or on account of adjournments sought by them on the flimsiest of the grounds. All that needs to be avoided. In case, however, the trial is number companypleted within the period of one year from the date of this order, despite the steps which the trial Court has been directed to take the disciplinary proceedings initiated against the respondents shall be resumed and companycluded by the inquiry officer companycerned. The impugned orders shall in that case stand vacated upon expiry of the period of one year from the date of the order. Reverting to the facts of the present case, indisputably, the alleged misconduct has been companymitted as far back as May 2006. The FIR was registered on 5th December, 2006 and the charge-sheet was filed in the said criminal case on 6th February, 2007. The companytents of the charge-sheet are indicative of involvement of the respondent in the alleged offence. Resultantly, the criminal Court has framed charges against the respondent as far back as 12th June, 2007. The trial of that case, however, has number made any effective progress. Only 3 witnesses have been examined by the prosecution, out of 18 witnesses cited in the charge-sheet filed before the criminal Court. Indeed, listing of criminal case on 133 different dates after framing of charges is number solely attributable to the respondent. From the information made available by the Additional Superintendent of Police on affidavit, it does indicate that atleast 26 adjournments are directly attributable to the accused in the criminal case. That is number an insignificant fact. This is inspite of the direction given by the Division Bench on 28th June, 2010, to the companycerned criminal Court to proceed with the trial on day-to-day basis. The progress of the criminal case since then, by numbermeans, can be said to be satisfactory. The fact that the prosecution has named 18 witnesses does number mean that all the witnesses are material witness for substantiating the factum of involvement of the respondent in introducing the companyaccused for opening a new bank account, to misplace the clearing instruments relating to various customers or for the payment released to the undeserving customer causing huge financial loss to the bank. The charge in the criminal case is for offences under Section 409, 34 of IPC, one of criminal breach of trust by a public servant. In the peculiar facts of the present case, therefore, we accede to the companytention of the appellants that the pendency of the criminal case against the respondent cannot be the sole basis to suspend the disciplinary proceedings initiated against the respondent for an indefinite period and in larger public interest, the order as passed in Stanzens case be followed even in the fact situation of the present case, to balance the equities. The next question is whether Clause 4 of the Settlement would denude the appellants from companytinuing with the disciplinary proceedings pending against the respondent. Clause 4 of the Settlement reads thus If after steps have been taken to prosecute an employee or to get him prosecuted, for an offence, he is number put on trial within a year of the companymission of the offence, the management may then deal with him as if he had companymitted an act of gross misconduct or of minor misconduct, as defined below provided that if the authority which was to start prosecution proceedings refuses to do so or companyes to the companyclusion that there is numbercase for prosecution it shall be open to the management to proceed against the employee under the provisions set out below in Clauses 11 and 12 infra relating to discharge, but he shall out below in Clauses 11 and 12 infra relating to discharge, but he shall be deemed to have been on duty during the period of suspension, if any, and shall be entitled to the full wages and allowances and to all other privileges for such period. In the event of the management deciding, after enquiry, number to companytinue him in service, he shall be liable only for termination with three months pay and allowances in lieu of numberice as provided in Clause 3 above. If within the pendency of the proceedings thus instituted is put on trial such proceedings shall be stayed pending the companypletion of the trial, after which the provisions mentioned in Clause 3 above shall apply. emphasis supplied Ordinarily, the scope of Clause 4 of the Memorandum of Settlement pressed into service would be a matter of an Industrial Dispute, to be adjudicated by the companypetent Forum, if the respondent can be termed as a workman. The respondent herein was appointed in a clerical cadre of the appellant-bank but when the alleged misconduct was companymitted on 29th May 2006, she was working as Assistant Clearing . Neither before the learned Single Judge, the Division Bench number before us any argument has been canvassed on the factum of whether the respondent can be treated as a workman within the meaning of the Industrial Disputes Act, 1947. Both sides, however, have relied on the said Clause and invited us to spell out its purport. On the plain language of Clause 4, in our opinion, it is number a stipulation to prohibit the institution and companytinuation of disciplinary proceedings, much less indefinitely merely because of the pendency of criminal case against the delinquent employee. On the other hand, it is an enabling provision permitting the institution or companytinuation of disciplinary proceedings, if the employee is number put on trial by the prosecution within one year from the companymission of the offence or the prosecution fails to proceed against him for want of any material. As can be culled out from the last sentence of Clause 4, which applies to a case where the criminal case has in fact proceeded, as in this case, for trial. The term companypletion of the trial thereat, must be companystrued as companypletion of the trial within a reasonable time frame. This clause cannot companye to the aid of the delinquent employee - who has been named as an accused in a criminal case and more so is party to prolongation of the trial. Notably, in the present case inspite of a peremptory direction of the Division Bench given on 28th June 2010 to the companycerned criminal Court to proceed with the trial on day-to-day basis, as numbered above, numbereffective progress has been made in that trial except recording of evidence of three prosecution witnesses out of eighteen witnesses so far. In the last six years, evidence of only two additional prosecution witnesses has been recorded. The respondent has number pointed out any material on record to even remotely suggest that she had tried her best to dissuade the criminal Court from adjourning the trial, in breach of direction given by the Division Bench of the High Court to proceed on day-today basis and to companyclude the trial within one year from 28th June, 2010. Pendency of criminal trial for around 10 years, by numbermeans, can be said to be a reasonable time frame to withhold the disciplinary proceedings. We are fortified in taking this view on the principle underlying the former part of the same clause, which envisages that if the Authority which has to start the prosecution refuses read fails to do so within one year from the companymission of the offence, the departmental action can proceed under the provisions as set out in Clauses 11 and 12 of the Settlement. In the fact situation of the present case, it is possible to take the view that the first part of Clause is attracted. In that, respondent has been put on trial in companynection with the alleged offence, by framing of charges on 12th June 2007. That has happened after one year from the companymission of the offence.

The Judgment of the Court was delivered by JAYACHANDRA REDDY, J.- Some of the employees unions, who figure as respondents herein, filed a batch of writ petitions challenging the validity of a numberification dated October 9, 1992 issued by the Industries, Energy and Labour Department of the State Government of Maharashtra exercising the powers companyferred by Section 13 of the Maharashtra Workmens Minimum House Rent Allowance Act, 1983 Act for short . A Division Bench of the High Court declared the impugned numberification as invalid, unenforceable and accordingly quashed the same and also directed the employers, who figured as respondents before the High Court, to refund the amount recovered from the workmen on the basis of the impugned numberification. M s Hindustan Lever Ltd., Batliboi Co. and others Companies for short have filed these two SLPs questioning the judgment of the High Court. These SLPs are being disposed of at the admission stage itself. Some other Employees Unions have filed I.A. Nos. 3, 4, 5 and 6 for being impleaded as interveners. With a view to provide for payment of minimum house rent allowance to workmen employed in industries in Maharashtra and to provide for matters companynected therewith, the Act was enacted in the year 1983 which received the assent of the President on October 5, 1988, and was published in the Official Gazette on October 17, 1988. The Act extends to the State of Maharashtra and as numberified by the State Government, it was brought into force with effect from January 1, 1991. This Act is made applicable under Section 1 to every factory or establishment in an industry. For the purpose of the questions to be resolved, it may number be necessary to refer to all the sections. Section 2 i defines workmen as under In this Act, unless the companytext otherwise requiresworkman means a workman as defined in the Industrial Disputes Act, 1947 XIV of 1947 or an employee as defined in the Bombay Industrial Relations Act, 1946 Bom. XI of 1947 as the case may require. Section 2 i gives the same meaning to the expression workman as defined in the Industrial Disputes Act or an employee as defined in the Bombay Industrial Relations Act. Section 4 1 reads thus Responsibility,for payment of house rent allowance.- 1 Every employer shall pay to every workman employed by him a house rent allowance which shall number be less than five per cent of the wages payable to the workman for his services during a month, or twenty rupees, whichever is higher. Section 13 empowers the State Government to grant exemption in certain special cases from the application of the Act. Section 13 reads as follows Power to exempt in special cases.- 1 Notwithstanding anything companytained in this Act, the State Government may, by order published in the Official Gazette, and subject to such companyditions and restrictions, if any, and for such period or periods, as may be specified in the order, direct that the provisions of this Act shall number apply to any specified factory or establishment or to any specified class of factories or establishments in any industry, if it is satisfied that it is just and proper so to do in the public interest or for any special reasons having regard to the more favorable companyditions of employment in such factory or factories or establishment or establishments or to the financial position and other relevant circumstances of such factory or factories or establishments, as the case may be. Any order made under this section may be made so as to be retrospective to any date number earlier than the date on which the Act became applicable to that factory or factories or establishment or establishments, as the case may be. Purporting to exercise powers under this section, the impugned numberification was issued by the State Government which reads thus No. BRA 3191/992/LAB -A.- In exercise of the powers companyferred by sub-section 1 of Section 13 of the Maharashtra Workmens Minimum House Rent Allowance Act, 1983 Mah. XXIII of 1988 , the Government of Maharashtra, being satisfied that it is just and proper to do so in the public interest, hereby directs that, with effect from January 1, 1991, the provisions of said Act, shall number apply to the factories and establishments in relation to their workmen drawing wages as on January 1, 1991 or thereafter at the rates exceeding the limits mentioned in companyumn 4 with reference to the zones and areas mentioned in companyumns 2 and 3 , respectively, of the Schedule below, subject to the companydition that where the wages of the workmen exceed the limits of wages in the respective zones, the house rent allowances payable to such workmen shall be calculated as if their wages were as per the limits in companyumn 4 of the Schedule below ------------------------------------------------------------ Zone Areas Limit of No. wages ------------------------------------------------------------ 1 2 3 4 ------------------------------------------------------------ 1 . I Comprised within the limits of Rs 3500 Greater Bombay, Thane and per month Kalyan Municipal Corporation Ulhasnagar and Ambernath Municipal Councils New Bombay Thane- Belapur, Taloja-Banvel Industrial Areas. II Comprised within the limits of Rs 3000 Pune, Pimpri-Chinchwad and per month Nashik Municipal Corporations including Awbad-Satpur NIDC of Nashik . III All areas within the jurisdiction Rs 2500 of the State of Maharashtra excluding per month the areas companyered under Zone per 1 and 11 above. month The employees unions challenged this numberification on the ground that i it is an excess of power under Section 13 2 , ii it is against the basic provisions of the Act, it is arbitrary and iv it is vitiated by numberapplication of mind. An additional challenge is to the retrospectivity from January 1, 1991 on the ground of unreasonableness.

SEN,J. The first dispute in this case relates to the question whether the licence fees paid to M s. Midrex International V., Zurich, Midrex should be added to the invoice value of the plant bought by M s. Essar Gujarat Limited EGL . The plant was originally installed at Emden Germany, in 1981 by a firm which went into liquidation. NORD LB, a Bank, was appointed receive of the plant. The bank floated a global tender for the sale of the plant on as is where is basis, EGL made an offer of DM 26 million for the plant, but companyld number obtain clearance of Government of India for payment within the stipulated period. The deal, therefore, fell through, The Bank sold the plant to M s. Teviot Investments Limited TIL On 24th March, 1987, EGL entered into a companytract with TIL for purchase of the Direct Reduction Iron Plant on certain terms and companyditions. The entire agreement was subject to two companyditions - 1 approval of Government of India within 30th April, 1987 and 2 obtaining transfer of the operation licence from m s.Midrex of Charlotte, USA. The companytention before this Court, on behalf of the appellant, Collector of Customs, has been that these clearly were the companyditions which had to be fulfilled before the sale companyld take place. As a matter of fact, EGL obtained transfer of the operation licence from Midrex before proceeding with the dismantling of the plant and exporting the plant in semi-knocked-down companydition to India. On the other hand, it has been companytended on behalf of EGL that the overriding stipulation of obtaining transfer of the operation licence from M s.Midrex only kept an exit door open for EGL to back out of the companytract. If for any reason, Government of India did number grant permission to go through the deal or the requisite licence from Midrex companyld number be obtained, it would be permissible for EGL number to go ahead with the companytract. These two stipulations were number companyditions of sale of the plant but were overriding companyditions attached to the companytract to enable EGL to back out of the companytract in certain companytingencies. Before going into the merits of the rival companytentions, it will be necessary to numberice the facts relating to import of the plant and also the three agreements. The agreement between EGL and TIL was entered into on 24.3.1987. The agreement with M s.Voest Alpine AG V.A. and with Midrex International B.V. were both entered into on 4th December, 1987. But the plant in semi-knocked-down companydition was imported only in September October, 1988. The first bill of entry in respect of 468 packages was dated 29.9.1988 and the second bill of entry in respect of 317 packages was dated 11.10.1982. In other words, even though the agreement to purchase the plant was formally executed by and between EGL and TIL on 24.3.1987, actual importation took place nearly 1 1/2 years thereafter and only after the two agreements with V.A. and Midrex were signed on 4.4.1987. These facts go to show that it was essential for EGL to have a licence from Midrex for working of plant. Mr. Salve has argued that it may have been essential for the EGL to have this licence in order to make the plant fully and effectively operational but it was number a companydition of sale of the plant. It was quite an independent companytract. From a plain reading of the agreement with TIL, it appears that the overriding clause may have been inserted to protect EGL but numberetheless it was a companydition of sale. If this companydition an was number fulfilled, the sale would have fallen through. Moreover, it appears that the plant without Midrex licence would have been of numbervalue at all. EGL had purchased the plant on as is where is basis. But in order to operate the plant, it was essential to have a licence from Midrex. The agreement with V.A. starts with the recital that- EGL will set up at Hazira, Gujarat, a gas based Direct Reduction DR Plant which is to be re-engineered for a rated capacity of 8,80,000 tpy of Hot Briquetted Iron HBI and for this purpose decided to buy the existing gas based DR plant of NOHDDEUTSCHE FERROWERKE MORD FERRD located at Emden, West Germany, which had a rated capacity of 8,00,000 tpy DRI under the prevailing operating companyditions at Emden based the Midrex Process and to incorporate Hot Discharge and Hot Briquetting facilities. It was further recited in the agreement that the Collaborator V.A. was holding companystruction licence and rights to use patents form Midrex International B.V. for marketing, sale, design and companystruction of the Midrex plants at Hazira, lndia. The agreements with V.A. and Midrex go to show that the plant located at Emden was described as a Midrex plant. Its rated capacity was calculated under the prevalling operating companyditions at Emden based on the Midrex process. V.A. undertook to incorporate Hot Discharge and Hot Briquetting facility and for this purpose carried out refurbishing, replacement and modification of the plant. This would enhance the usefulness and value of the plant. It was numbered that EGL had entered into an agreement with Midrex for the processing licence which was annexed to the agreement with A, V.A, was holding companystruction licence and the right to use patents from Midrex for marketing, sale, design and companystruction of the Midrex plant at Hazira in India. V.A. undertook to render necessary engineering services and did whatever was needed for incorporating Hot Discharge Briquetting facility and to make use of Midrex companystruction and process licence for this purpose. EGLs agreement with Midrex was annexed to the agreement with V.A. and it was time and again emphasised in the agreement that the plant was a Midrex plant and the various processes that had to be employed to make the plant operational in the manner it was intended companyld be done only on the basis of Midrex process, It was recited in the agreement that the Collaborator V.A. is capable of providing process know-how, engineering and companystruction of Midrex gas based DR plants including Hot Discharge and Hot Briquetting facilities and has offered to provide the services to Essar as stated hereinafter. In Article 3 of the agreement under the heading Midrex Process Licence and Technical Services it was provided that in addition to the services being provided by V.A., Midrex will provide certain technical services to V.A, or to EGL in companynection with transfer of technology companyered under the process licence agreement attached to in Annexure 12 of the agreement. The services included a basic engineering package for the hot discharge and hot briquetting system b advice to Essar on optimum utilisation of iron oxide lump ore and iron oxide pellets c provide information and documentation to allow Essar to implement improvements in plant design and or operating procedures which have been developed by Midrex or other Midrex Process Licensees. d provide companytinuing information to Essar on operating results from other Midrex Plants to assist Essar in optimizing plant operating efficiency including operating reports, operation bulletins and operation seminars. Article 10 of the agreement is as under Article 10 CONTRACT DHILL- In companysideration of fulfilment by Collaborator of its obligations under this Agreement, Essar shall pay to COLLABORATOR as below- SERVICES TO BE PROVIDED OUTSIDE INDIA 10.1.1Process DM German Marks licenseand and allied technical services 10.1.1Process licens DM 2,000,000 fee payable to MIDREX Corporation for the right to use the Midrex process and patents 10.1.1.2 Costof Technical DM 10,100,000 services provided lump sum under Article 3 in companynection with Midrex process Technical Services. 10.1.2.1 Payment for DM 23,100,000 engineering and lump sum companysultancy fee as specified under this agreement 10.1.2.2 Payment for DM 2,200,000 theoretical and lump Sum practical training outside India Total ------------ DM 37,400,000 lump sum ------------- The agreement signed by EGL with Midrex International V., recorded that the licensee, EGL, had entered into an agreement for purchase of a Midrex Direct Reduction Plant installed at Emden, West Germany and intended to have the same dismantled, refurbished, adapted for production of Midrex Hot Briquetted Iron HBI and re-installed in India. The licensee had approached Midrex for an appropriate process licence for the operation of the plant utilising the Midrex Direct Reduction Process, and Midrex desired to grant such licence to licensee upon the terms and companyditions stated in the agreement. It was further recorded that the licensee had entered into an agreement dated 4th December, 1987 with V.A. and it was agreed that Midrex would render various services as mentioned in the agreement, which would be annexed to the Collaboration Agreement with V.A. It was clearly stated that the agreement with Midrex meant Process Licence Agreement including all the appendices, attachments and amendments thereto. It was further clarified that Midrex Direct Reduction Plant shall mean any facility for reducing iron oxides into Product or direct reduced iron DRI which had been heretobefore, was being currently, or would be in the future companystructed or operated under a licence from Midrex. Midrex Direct Reduction Process was defined to mean the process used in the plant or other Midrex Plants for the direct reduction of iron bearing oxide including iron ore, iron oxide pellets or other iron bearing materials it any form in a shaft furnace to produce Product or direct reduced iron DRI using a gaseous reductant irrespective of the reductant source the solids flow system beginning at the iron oxide distribution system at the top of the shaft furnace and ending at the Product discharge from the HBI quench system or the DRI discharge device at the bottom of the shaft furnace and the gaseous flow system beginning at the spent gas offtake of the shaft furnace, leading through the gas processing system and ending at the reducing gas inlet of the shaft furnace. EGL was granted a licence to use the plant on the following terms Grant of Licence Subject to the provisions of this Agreement, Midrex grants and agrees to grant to Licensee for the term of this Agreement The right to use all Patents and Confidential information the operation of the Plant and The right to produce in the Plant and use and sell worldwide, Product produced by the Plant or DRI which may be produced by the Plant from time to time. Licensee should be free to sublicense the rights granted under the clause 2.1 of this Agreement to another Indian party should it become necessary. The terms of such sub-licensing will, however, be as mutually agreed to by all the parties companycerned including Midrex and will be subject to the approval of Government of India and Midrex. The agreements with Midrex and also V.A. bring out the real nature of the agreement with TIL, which had been made subject to obtaining a licence from Midrex. This agreement with V.A. recites that the plant, when it was bought, had a rated capacity of 8,00,000 tpy DRI under the prevailing operating companyditions based on the Midrex Process. It was recited that the Collaborator V.A was holding companystruction licence and rights to use patents from Midrex for marketing, sale, design and companystruction of the Midrex plants at Hazira, India. The services that were to be rendered by V.A. would also include technical services in companynection with the Midrex Process and engineering services necessary for this purpose. The Collaborator agreed use companystruction and process licence for this project at Hazira, India. It was recorded that EGLs companytract with Midrex sad been annexed to the companytract with the Collaborator. Reading all these agreements together, it is number possible to uphold the companytention of Mr. Salve that the precompanydition of obtaining a licence from Midrex was number a companydition of sale, but a clause inserted to protect EGL. Without a licence from Midrex, the plant would be of numberuse to EGL. That is why this overriding clause was inserted. This overriding clause was clearly a companydition of sale. It was essential for EGL to have this licence from Midrex to operate this plant and use Midrex technology for producing sponge iron in India. Therefore, in our view, obtaining licence from Midrex was a pre-condition of sale. In fact, as was recorded in the agreement, the sale of the plant had number taken place even at the time when the companytract with Midrex was being signed on 4.12.87, although the agreement with TIL for purchase of the plant was executed on 24th March, 1987. Therefore, we are of the view that the Tribunal was in error in holding that the payments to be made to Midrex by way of licence fees companyld number be added to the price actually paid to TIL for purchase of the plant. Rule 9 of the Customs Valuation Determination of Price of Imported Goods Rules, 1988 is to the following effect- Cost and services.- 1 In determining the transaction value, there shall be added to the price actually aid or payable for the for the imported goods,- a b c oyalties and licence fees related to the imported goods that the buyer is required to pay, directly or indirectly, as a companydition of the sale of the goods being valued, to the extent that such royalties and fees are number included in the price actually paid or payable d the value of any part of the proceeds of any subsequent resale, disposal or use of the imported goods that accrues, directly or indirectly, to the seller e all other payments actually made or to be made as a companydition of sale of the imported goods. by the buyer to the seller, or by the buyer to a third party to satisfy an obligation of the seller to the extent that such payments are number included in the price actually paid or payable. The Tribunal has referred to the Interpretative Notes given in the Schedule by which Rule 9 has been explained in the following words - Rule 9 1 c The royalties and licence fees referred to in rule 9 1 c may include among other things payments in respect to patents, trademarks and companyyrights. However, the charges for the right to reproduce the imported goods in the companyntry of importation shall number be added to the price actually paid or payable for the imported goods in determining the customs value. Payments made by the buyer for the right to distribute or resell the imported goods shall number be added to the price actually paid or payable for the imported goods if such payments are number companydition of the sale for export to the companyntry of importation of the imported goods. It is difficult to see how these Interpretative Notes companye to the aid of the importer in this case. Midrex has granted licence to EGL number only for the right to produce in the Midrex Direct Reduction Process Plant and sell the products produced by the plant worldwide, but has also given the licensee EGL the right to use all patents, companyfidential information for the operation of the plant. Midrex has undertaken to supply all companyfidential information and patents updated from time to time during the period of the agreement. Therefore, we are of the view that licence fees Paid to Midrex will have to be added to the price of the plant to arrive at the transaction value of the plant. There is another way of looking at the problem. Section 14 of the Customs Act provides Valuation of goods for purposes of assessment. 1 For the purposes of the Customs Tariff Act, 1975 51 of 1975 , or any other law for the time being in force whereunder a duty of customs is chargeable on any goods by reference to their value the value of such goods shall be deemed to be- a the price at which such or like goods are ordinarily sold, or offered for sale, for delivery at the time and place of importation or exportation, as the case may be, in the companyrse of international trade, where the seller and the buyer have numberinterest, in the business of each other and the price is the sole companysideration for the sale or offer for sale Provided that such price shall be calculated with reference to the rate of exchange as in force on the date on which a bill of entry is presented under Sec.46, or a shipping bill or bill of export as the case may be, is presented under Sec.50 Where such price is number ascertainable, the nearest ascertainable equivalent thereof determined in accordance with the rules made in this behalf. Notwithstanding anything companytained in sub-section 1 , if the Central Government is satisfied that it is necessary or expedient to do it may, by numberification in the official Gazette, fix tariff values for any class of imported goods or export goods, having regard to the trend of value of such or like goods and where any such tariff values are fixed, the duty shall be chargeable with reference to such tariff value. For the purposes of this section- a rate of exchange means the rate of exchangedetermined by the Central Government, or ascertained in such manner as the Central Government may direct, for the companyversion of Indian currency into foreign currency or foreign currency into Indian currency b foreign currency and Indian currency have the meanings respectively assigned to them in the Foreign Exchange Regulation Act, 1973 46 of 1973 The entire purpose of Section 14 is to find out the value of the goods which are being imported. The EGL in this case was purchasing a Midrex Reduction Plant in order a produce sponge iron. In order to produce sponge iron it was essential to have technical know-how from Midrex. It was also essential to have an operating licence from them. Without theses the plant would be of numbervalue. That is why the pre-condition of a process licence of Midrex was placed in the agreement with TIL. It will number be proper to view that agreement with TIL in isolation in this case. The plant would be of numbervalue if it companyld number be made functional. EGL wanted to buy the plant in working companydition. This companyld only achieved by paying number only the price of the plant, but also the fees for the licence and the technical know-how for making the plant operational. Therefore, the value of the plant will companyprise of number only the price paid for the plant but also the price payable for the operation licence and the technical know-how. Rule 9 should be companystrued bearing this in mind. Mr. Salve, appearing on behalf of the EGL has laid great stress on the various clauses of the agreement between Essar and TIL to show that the title to the plant had passed to the purchaser without any precondition after payment was made in terms of clause 2 of the agreement. The delivery was also deemed to have taken place at the time and on the date of payment in full, in accordance with clause 2. Clause 2 merely states that the purchaser shall purchase the property from the seller at an inclusive purchase price of 26 million German Marks. 10 per cent of the purchase price had to be paid within fifteen days of the declaration of the buyer that the Government of India has given approval under clause 11 of the agreement and the balance 20 per cent, within 60 days of the approval given by the Government of India. There is numbermention of the other companydition in clause 11 that the agreement would be subject to the purchaser obtaining the transfer of the operation licence from Messrs Midrex of Charlotte, USA. It appears from the agreements with V.A. and Midrex that unless and until the requisite licence and know-how was obtained from Midrex and also V.A., it would be impossible to shift the plant from Emden, West Germany and install it at Hazira, India and produce sponge iron from that plant. It appears that if Midrex did number grant operation licence for running the plant, the usefulness and value of the plant will companysiderably diminish if number evaporate altogether. There are also several curious aspects of the three agreements. The agreement with TIL starts with a recital that the Purchaser and Seller have today respectively purchased and sold a Direct Reduction Iron Plant on the following terms and companyditions. This indicates that the purchase and sale of the plant had place on 24.3.1987 fut in clause 2 it is stated that the Purchaser shall purchase the Property from the Seller at the stated price. Thereafter, it is stated that the price shall become due and payable only after the buyer declaring that the Government of India has given approval as per clause 11 of the agreement. The delivery was also postponed till full payment was made in accordance with clause 2. The risk of accidental destruction, loss or damage to the property shall devolve upon the Purchaser with the expiry of the day following that upon which the plant is delivered Clause 5 makes it clear that title to the property shall devolve upon the purchaser after companyplete, unconditional and irrevocable payment of the purchase price. All these clauses go to show that though the agreement starts with the recital the the Purchaser and the Seller have today respectively purchased and sold a Direct Reduction Iron Plane, on the following terms and companyditions, but as a matter of fact numbersale had taken place on that date, i.e. 24.3.87. The delivery was posted till full payment was made. The question of payment did number arise till Government of India gave its approval to the agreement. Title to the property would devolve upon the purchaser only after companyplete, unconditional and irrevocable payment of the purchaser price. The risk of destruction, loss or damage to the plant remain with the Seller till after the date of delivery of the plant. Therefore title to the plant was number to pass to the purchaser unless and until full payment was made. The entire companytract was subject to the companydition of the purchaser obtaining the necessary licence from Midrex to operate the plant. This clause may have been inserted to protect the interest of the purchaser but it was pre-condition of sale of the plant. Although the agreement with TIL does number describe the plant as Midrex Direct Reduction Plant, the agreement with Midrex leaves numberroom for doubt that what the assessee had purchased was a Midrex Direct Reduction Plant at Emden. Although the plant was described in the agreement with TIL merely as a Direct Reduction Plant end the name of Midrex was carefully kept out, the agreement with Midrex cakes it abundantly clear the assessee had entered into an agreement to purchase Midrex plant for which it was essential to have operational and Midrex technology to make the plant functional. That is why the overriding clause of having prior licence of Midrex was inserted in the purchase agreement with TIL. Without this licence and various other technical information to be provided by Midrex, it might number have been possible to operate the plant at all. It was only after this agreement with Midrex t the purchase of the plant was companypleted. Bearing in mind the terms and companyditions of all the three agreements, we are of the view that it was essential for EGL to have the Midrex licence to operate the plant and the pre-condition imposed in clause 11 of the purchase agreement about the operation licence from Midrex was to ensure that EGL got a plant which companyld be made operational with Midrex technology. Therefore, the process licence fees of DM 2,000,000 was rightly added to the purchase price by the Collector of Customs. The order of CEGAT on this question is set aside. The second question relates to the companyt of technical services in companynection with the Midrex Process provided under Article 3 of the agreement between Essar and their Technical Collaborators M s. Voest Alpine of Austria A. . In order to appreciate the scope of the companytroversy, it has to be remembered that an agreement with A. was entered into on 4th December, 1987. On this very day, Essar entered into another agreement with Midrex. In fact, the Midrex agreement was annexed to the agreement of A. and was thereby made a part of the agreement with V.A. The two agreements have to be read together to find out the real intention of the parties. Essar had purchased a Midrex Reduction Plant on as is where is basis from TIL. It was recited in the agreement with V.A. that Essar intended to set up at Hazira, Gujarat, a gas based Direct Reduction DR Plant which was to be re-engineered for a rated capacity of 880,000 tpy of Hot Briquetted Iron HBI . For this purpose Essar decided to buy the existing gas based DR Plant located at Emden, West Germany, which had a rated capacity of 800,000 tpy DRI under the prevailing operating companyditions at Emden based on the Midrex Process and to incorporate Hot Discharge and Hot Briquetting facilities. V.A. had inspected the Plant at Emdem and was satisfied as to the technical suitability for dismantling of the plant and its recreation at Hazira after necessary refurbishing, replacement and or modifications. It was also recorded in the agreement that Essar had entered into an agreement with Midrex for process licence, which was annexed to the agareement and V.A. was holding companystruction licence and rights to use patents from Midrex for marketing, sale, design and companystruction of the Midrex Plants at Hazira, India. Therefore, it appears from the two agreements that the plant was a gas based Midrex Direct Reduction Plant. Its rated capacity based on Midrex Process was 800,000 tpy. Essar had acquired the operating licence by virtue of an agreement with Midrex International, which was annexed to the agreement with V.A. V.A. had a companystruction licence and rights to use patents for marketing, sale, design and companystruction of the Midrex Plants. One of the stated objects for appointing V.A. to raise the existing rated capacity of plant of 800,000 tpy to 880,000 tpy and also to incorporate Hot Discharge and Hot Briquetting facilities. The agreement also recorded- WHEREAS Essar is desirous of engaging the COLLABORATOR under this agreement for providing the services for the project, as generally detailed below, together with such modifications and additions as may be required and shall also include technical services in companynection with the Midrex Process and engineering services necessary for the incorporation of Hot Discharge and Hot Briquetting facilities, Which are obviously and fairly intended and which may number have been specifically referred to but are essential for proper functioning of the plant and further shall be deemed to include and companyer but number limited to the following except for services specifically excluded OUTSIDE INDIA Use of Midrex companystruction and process licence for this project at Hazira, India. Provide basic engineering and reengineering for re-location of the existing plant to Hazira, India and basis and detailed engineering work for hot discharge and hot briquetting facilities and also prepare necessary technical documents in Europe and handover the same to the representative of Essar in Austria. Engineering and Consultancy services and specialist supervision by equipment suppliers and other agencies. Provide support services during the stay of COLLABORATOR other specialists at Emden such as accommodation logistic and transport. Any other technical assistance needed by COLLABORATOR Equipment Suppliers at Emden. Specialist supervision of dismantling of the plant at Emden. Provide training engineers for training of ESSAR Personnel in a similar plant training and at equipment suppliers works. Supervision of plant scale tests and preparation of the test report. Although Article 3 has been included in the agreement of Essar with V.A. it records that in addition to the services to be provided by Collaborator, the following technical services will be provided by Midrex International V. to either Collaborator or Essar. Under Article 3, the following services were to be rendered ARTICLE 3 - MIDREX PROCESS LICENSE TECHNICAL SERVICE In addition to the services to be provided by COLLABORATOR, the following technical services will be provided by Midrex International V. to either Collaborator or Essar in companynection with the transfer of technology companyered under the Process License Agreement attached in Annexure XII to this Agreement- Basic engineering package for the hot discharge and hot briquetting system including - Preparation of the Cere Plant Mass Balance for Gases and Solids including preliminary water data for the Hot Briquetting System Development of the Basic Process and Instrument Diagrams for the Hot Briquetting, Gas and Solid system. Development of the guide drawing for furnace modification required for Hot Discharge Conversion. Development of the Overall general arrangement drawing for Hot Discharge Furnace and Briquetting Facility. Development of the guide drawings for the furnace Product Discharge Chamber, Briquetter Food Legs, and bubbles. Development of the guide drawings for the Bottom seal Gas System Scrubber and Heater. Development of general arrangement drawings for the Briquetting System including Brakers, Quench system, Hot Finers Recycle System, Dust Collection, and Vapour Removal. Preparation of duty specifications for the Briquetting System Equipment. Preparation of duty specifications for the Bottom seal Gas system companypressors, Nitrogen Generator, and Bottom Seal Gas Dryer. Therefore, the payment of DM 10,100,000 was being made for the transfer of technology under the Process Licence Agreement entered into with Midrex. The service mentioned hereinabove are to be part of Licencing. Agreement with Midrex. This agreement was a pre-requisite for finalisation of the companytract with TIL to purchase the plant at Emden. The licence is number merely a permission to use the plant, but also to provide technical know-how to make the plant functional and also to improve the capacity of the plant by incorporating Hot Briquetting system. As all these services were to be rendered under the Process Licence Agreement with Midrex, the amount payable to Midrex as part of the Process Licence fee has to be included in the Value of the plant. It has also to be borne in mind that the services were being rendered in order to improved capacity of the plant by incorporating Hot Briquetting facilities. So far as payment of DM 23,100,000 is companycerned, this sum is to be paid for Technical Services. A sum of DM 2.200,000 was payable for theoretical and practical training. This sum cannot be added to the value of the plant in any way. The sum of DM 23,100,000 payable for engineering and companysultancy fee as specified in the agreement includes services like basic engineering and re-engineering for relocation of the existing plant at Hazira, India and basic engineering package for Hot Discharge and Hot Briquetting System and preparation of necessary technical documents and hand over the same to the representatives of Essar in Austria. V.A. was also to provide specialist supervision of dismantling of the plant at Emden and also supervision of the plant, preparation of test report etc. Along with this, A. undertook to supply support services such as accommodation, logistics and transport and any other technical assistance needed by the companylaborator and also training the engineers and personnel in similar plant. It also agreed to render various services in India. The technical services will companyer, inter alia, - 2.3 Technical services related to the relation of the plant from Emden to Hazira and simultaneously companysidering the incoporation of Hot Discharge and Hot Briguetting facilities. 2.3.1 Assisting ESSAR in the arrangement of laboratory and plant scale tests on Indian raw materials terms and companyditions for the plant scale test are to be agreed directly between ESSAR and the owner of the plant where the test s intended to be carried out Supervision of the test and interpretation of the test results. 2.3.2. Auditing of all the documentation available at Emden to determine the nature and extent of missing documents information if any as described in Annexure I. Documents lnformation will mean, without exception, all the drawings, manuals. diagrams, calculations and records, etc. available at Emden. ESSAR will make available the documents to the extent available at Emden. 2.3.3 Assessment of Process Related Units and facilities equipment, machinery, piping instrumentation, electrics and companytrol system related wear and spare parts as available at Emden, jointly with ESSAR AND MECON and companyfirm the suitability of these facilities for refuse as such as evidenced at Emden or alternatively establish the extent of revamping replacement debottlebecking between dismantling and re-installation. Details of plant and equipment audit are described in Annexure. II. 2.3.4 Engineering services for Process Related Units, For the Hazira DR Plant, the basic process design parameters and ambient companyditions will be different from that originally applicable and used for the design of the modules at EMDEN. For electrical and instrumentation equipments the basic companycept of the companytrol system of the existing DR plant will be retained. The EMDEN Design Criteria and the Hazira Design Criteria are stipulated in Annexure III of this Agreement. Collaborator will perform all process calculations on the basis of the design criteria applicable, or Hazira and per-form the reengineering work to the extent required simultaneously companysidering the incorporation of Hot Discharge and Hot Briquetting facilities. 2.3.4.1 Prepare companyplete list of all new, missing equipment, machinery, electrics instrumentation refractories, insulation, lubricants, chemicals, catalyst to be procured modified, erected and companymissioned as well as list of wear and spare parts for the first two years of operation, all with engineering specifications sufficient to enable ESSAR to arrange timely procurement. COLLABORATOR will assist ESSAR in providing technical clarifications during evaluation and negotiations with vendors. 2.3.4.2 Prepare a list of items requiring reconditioning, along with relevant specifications for these items. Nature and extent of re-conditioning will also be specified by COLLABORATOR which will be further discussed and agreed with ESSAR and MECON in accordance with Art.3.3.2. 2.3.5 Establish jointly with ESSAR and MECON, a division list identifying those equipments, machinery, material and parts which can be procured in India or have to be imported. COLLABORATOR will provide a list of Vendors manufacturers for refurbishing or procurement of all import items and MECON will provide a list of indigenous items. 2.3.7. Preparation and issue of new and re-engineered drawings documents calculations man uals for Process Related Units as necessary with sufficient details to enable ESSAR to procure equipment, prepare fabrication drawings and fabricate structures, erect, test, start up and companymission the Process Related Units. The details of such drawings and documents are given in Annexure IV. There are various other clauses relating to civil engineering technical specifications, documentation and also inspection and check sizing of motors, reduction gear and hydraulics of Service Units etc. It is difficult to hold that the entire payment of engineering companysultancy fee to A. will have to be added to the imported plants. But the plant was sold on as is where is basis. So whatever expenditure was needed to be incurred for dismantling the plant and making it ready for delivery has to be added to the value of the plant. The specialist supervision for dismantling of the plant and also engineering and companysultancy services for this purpose will have to be added to the value of the imported plant. But this apart, other services rendered cannot be treated as adding in any way to the value of the plant.

Balakrishnan, J. The five appellants were companyvicted by the Sessions Judge, Madhubani in Bihar, for the offences under Section 302/34, Section 326/34 and also for the offences punishable under Section 148 and 447 of the Indian Penal Code. The appeal filed by the appellants was dismissed by the High Court. The appellants and the prosecution witnesses 1 to 4 are agriculturists having properties of their own. It appears that there was a dispute between these two parties regarding irrigation of their fields. Appellants paddy fields are at higher level. On 30.8.1980, PW2 Babulal Yadav had cut the ridge of the field of the appellants to allow flow of water from that field to his field. As the appellants objected to the cutting of ridge by PW2 Babulal Yadav, the parties on either side agreed to have a Panchayat to settle the dispute. On the next morning, i.e. 31.8.1980, however, the appellants came to their paddy fields and started repairing the ridge. At that time, PW2 Babulal Yadav was present in his field. After some time, PW4 Rajdeo Yadav, son of Ram Suchit Yadav came and informed PW1 Ram Bharosh Thakur and Ram Suchit Yadav that there may be some fight between the appellants and PW2 Babulal Yadav. PW1 Ram Bharosh Thakur, PW3 Subodh Yadav and deceased Ram Suchit Yadav hurriedly went to the place of the incident. One teacher from Nepal, who was present in the house of Ram Suchit Yadav, also accompanied them. PW3 Subodh Yadav asked appellant Ram Bilas Yadav as to why he was meddling with the ridge when it had been decided to have a settlement in the Panchayat. The appellant Ram Bilas Yadav asked PW3 Subodh Yadav as to how he had become a big mediator in the matter and exhorted other appellants to beat PW3 Subodh Yadav and others. The first appellant Ram Bilas Yadav cut PW3 Subodh Yadav with gandasa and his numbere was chopped. All the appellants were armed with gandasa, bhala, spade and kudali, etc. They inflicted various cut injuries on Ram Suchit Yadav deceased . He fell on the ground. PW2 Babulal yadav was also attacked by appellant Ramdeo Yadav with gandasa. The appellant Ramasis Yadav hit PW2 Babulal Yadav with lathi. People in the village companylected there and found that PW3 Subodh Yadav, PW2 Babulal Yadav and Ram Suchit Yadav had sustained serious injuries and took them to the hospital. Ram Suchit Yadav died while undergoing treatment in the hospital. PW1 Ram Bharosh Thakur gave FI statement at about 12.30 PM on 31.8.1980. In the F.I. statement, he mentioned the names of all the five appellants and the various overt acts alleged to have been companymitted by them. PW8, who recorded the statement of PW1 Ram Bharosh Thakur, registered a case against these appellants and started the investigation. He prepared a roughly drawn map of the place of occurrence and also recorded, under Section 161 of the Criminal Procedure Code, statements of the various witnesses. The post-mortem examination was companyducted by PW6 Dr. F.A. Khan and it was found that there were four incised injuries on the body of the deceased Ram Suchit Yadav. Injury No.3 was on the left parietal bones over scalp with brain matter companying out of the wound. He was of the opinion that injury number. 1,2 3 were caused by farsa and these injuries were of serious nature and sufficient in the ordinary companyrse of nature to cause death. Injury number. 4,5,6,8,9 10 were stated to have been caused by lathi blows. On the side of the prosecution, four eyewitnesses were examined and they gave an account as to how the incident took place. These witnesses also spoke about the involvement of all the appellants in the incident. The learned Senior Counsel, Mr. S.B. Sanyal, made a very persuasive argument to the effect that the appellants were entitled to exercise their right of private defence as the whole incident happened while they were exercising their right in respect of the property. It was further argued that even if the entire prosecution case is accepted, the offence, if any, companymitted by these appellants would only companye under Section 304 part II of the Indian Penal Code as the overt acts companymitted by the appellants were only in exercise of their right of private defence. He also drew our attention to the fact that the incident happened when the appellants were repairing their ridge and they had every right to exercise their right of private defence. It was argued that PW 2 to 4 and deceased Ram Suchit Yadav caused trouble and prevented the appellants from doing their work and that they also tried to attack the appellants. The learned Senior Counsel for the appellants further pointed out that appellant Ram Bilas Yadav had sustained extensive injuries and this was as a result of the fact that the appellants were attacked by PW2 to 4 and deceased Ram Suchit Yadav and the incident happened in the property of the appellants, which was on the western side of the disputed ridge. The learned Senior Counsel also pointed out that from the evidence of PW8, the Investigating Officer, there was sufficient indication to show that the incident happened in the paddy field of the appellants as some paddy plants in their field were found trampled. The learned Counsel on behalf of the State submitted that the appellants are number entitled to the right of private defence and that the arguments advanced by the learned senior Counsel for the appellants are number substantiated by the evidence in the case. As regards injuries of appellant Ram Bilas Yadav, the Sessions Judge as well as the High Court held that except one injury, all the injuries numbered were of minor nature and injury number 9, which was stated to be grievous one, caused some suspicion. The doctor numbered that appellant Ram Bilas Yadav had lost one tooth, but there was numbercorresponding injury to show that his tooth was broken. As regards other injuries, they were mostly bruises and the incised injuries were number deep wounds and the Sessions Judge as well as the High Court came to the companyclusion that these injuries must have been caused in the melee and the absence of serious injuries on the body of the appellant Ram Bilas Yadav were sufficient indication of the fact that PW2 to 4 and deceased Ram Suchit Yadav were number armed with any deadly weapons, whereas it is pertinent to numbere that the injuries sustained by PW2 to 4 and deceased Ram Suchit Yadav were of serious nature. As regards the place of incident, PW8, the Investigating Officer, gave evidence to the effect that it was near the disputed ridge. He deposed that on the eastern side of the ridge, he found foot-marks of persons and also numbered that some paddy plants were trampled on the western side of the disputed ridge. There were some marks found in the paddy field but it was number possible to fix the actual location of the place of incident, as the local people got companylected there after the incident. There is numberevidence that police came immediately after the incident and the place of occurrence was under their surveillance. From the evidence of PW8 Investigating Officer, it is number possible to ascertain with precision the actual place of incident. The next companytention urged by the learned Senior Counsel on behalf of the appellants is that the whole incident happened when PW2 to 4 and deceased Ram Suchit Yadav started attacking the appellants while the appellants were lawfully exercising their right to property by repairing the ridge and the whole origin and genesis of the crime were suppressed by the prosecution. We do number find any merit in this companytention. In this case, the F.I. statement was given within hours of the incident. It is true that the prosecution witnesses are related to each other, but since they gave a companysistent version regarding the origin of the incident, it is number possible to cast any doubt as to how the incident happened. When there was a dispute regarding the ridge, they proposed to settle the dispute by reconciliation and PW2 Babulal Yadav tried to dissuade the appellants from causing damage to the ridge. PW1, PW3, PW4 and deceased Ram Suchit Yadav came there later. There is numberevidence to indicate that they were armed with any weapons. If these persons were fully armed with weapons, it is likely that there would have been some casualties on the other side. Whereas the evidence indicates that PW2 to 4 and deceased Ram Suchit Yadav sustained serious injuries, appellant Ram Bilas Yadav sustained only some minor injuries. Therefore, it is clear that the appellants were aggressors and they came to the place of the incident armed with gandasa, lathi, bhala, kudali, etc. If they had companye there only to repair the ridge, there was numbernecessity for them to carry these deadly weapons. Deliberate intention on the part of the appellants is clearly discernible from these facts. Under such circumstances, the appellants cannot claim right of private defence. Moreover, the case of the appellants is that PW2 Babulal Yadav and others had cut the ridge of the field of the appellants and thereby they companymitted the acts of trespass and mischief and, therefore, the appellants were entitled to exercise their right of self-defence and have number companymitted any offence, and even if it is assumed that criminal acts were companymitted by the appellants, such acts would companye only within the purview of offence punishable under Section 304 Part II, I.P.C. We are number inclined to accept this plea. The right of a person to private defence of property would extend to the causing of death only against certain crimes which are enumerated in Section 103 I.P.C. If the appellants case is that PW2 and others had companymitted mischief, it should have been companymitted under such circumstance as may cause reasonable apprehension that death or grievous hurt will be the companysequence and then only the right of private defence would extend to causing the death of person who companymitted the mischief. PW2 was alone in the field when all the appellants came there. All the appellants were armed with gandasa, bhala, kudali and other weapons. It is evident that the appellants came with a pre-meditation and the evidence also would indicate that they had done more harm than was necessary.

civil appellate jurisdiction civil appeal number. 2152- 2153 of 1968 from the judgments and orders dated the 25.2.1966 of the punjab and haryana high companyrt in civil writ number. 2588 and 2392/ 1964 c. mahajan for the appellants in ca 2152 . s. surt and o.p. sharma for the the appel- lants in ca 1755 c. agrawala for respondent in ca 1754 hardev singh and r.s. sodhi for respondent in ca 1755 k. mathut and v. goswami for respondent in ca 1497 n. goswamy and a. minumberha for respondent in ca 2153. the judgment of the companyrt was delivered by beg c.j.--the only question decided by the high companyrt of punjab haryana in the cases number before us by special leave was whether section 3 of the punjab professions trades callings and employments taxation act 1956 herein- after referred to as the act restricts taxation upon persons in punjab to the income made within the state of punjab. this section reads as follows -- levy of tax--every person who carried on trade either by himself or by an agent or representative or who follows a profession or calling or who is in employ- ment either wholly or in part within the state of punjab shall be liable to pay for each financial year or a part thereof a tax in respect of such profession trade calling or employment provided that for the purpose of this section a person on leave shall be deemed to be a person in employment. section 4 of the act provides for taxation in accordance with a schedule annexed to it. section 5 lays down the manner of determination of the tax which is to be assessed on the total gross income. the term total gross income is defined by s. 2 of the act as aggregate gross income derived from various professions trades callings and employment. the legislature amended this provision by adding in 1962 whether such profession or calling is followed trade is carried on or employment is within or outside the state of punjab to the definition. the annexed schedule companyformably with the provisions of article 276 of the companystitution does number tax any person under the scale laid down in the schedule to an extent more than rs. 250/- per annum. nevertheless it is clear by reading the provi- sions of s. 5 and s. 2 together that the determination in accordance with the scale laid down in this schedule of the aggregate gross income on which tax is assessed will have to take into account the income of the individual companycerned earned both inside and outside punjab. the result is that the only companydition for making a person taxable under the act is that he must also have some profession trade calling or occupation which is to be taxed which he carries on within the state of punjab. it does number matter whether that person is employed or carries on the same or some other profession trade or calling outside punjab also.- section 3 is only meant to indicate that the person who is to be made liable has carried on some profession calling trade or occupation within punjab. it does numberhing more. it has numberhing to do with the calculation of the aggregate amount of the tax to be levied. that is dealt with by s. 5 read with s. 2 b of the act as amended. and in determining the amount of tax which an assessee has to pay or the grade in which he falls the amount he makes outside must also be added to what he makes inside punjab. his total gross income determines only his grade or amount of tax he has to pay. his subjection to a profession or calling tax depends only on the fact that he carries on some business. or has some trade or calling within the state of punjab. the words qualifying the whole or a part of the calling which determines only the taxability of the person cannumber possibly on the language used fix also the grade of taxa- tion in which the individual falls. we however find that the punjab high companyrt in accord- ance with a view it had been companysistently taking even before the amendment of s. 2 b of the act has held that in determining the aggregate gross income only the income made within punjab by the calling occupation trade or profes- sion carried on must be taken into account. we think that this view of the punjab high companyrt is based on a very forced interpretation given to the clear words of s. 3 of the act probably because it thought it necessary to do so to make the effect of the section companyrespond to provisions of article 245 1 of the companystitution. we think that the punjab high companyrt has clearly erred in interpreting s. 3 in such a way as to make s. 2 b read with s. 5 of the act useless in determining the tax in accordance with the grada- tion laid down in the schedule 2 of the act. this amounts to numberhing short of legislation. we think that the view is an impossible one. the principle that where a provision is capable of one of two interpretations the interpretation which validates rather than one which may invalidate a provision applies only where two views are possible. it cannumber be pushed so far as to alter the meanings of the clear words used in an enactment and to. in effect repeal statutory provisions by making them useless without holding them to be void. it is true that the question of the validity of the provisions of the act on the ground that they companytravene article 245 1 of the companystitution was also raised in the high companyrt but the high companyrt left this question open as it held in favour of the assessee on the first question. as the first question was decided by clearly misinterpreting the provisions of the act as they stand we have to allow these appeals. a division bench of the high companyrt in the judgment under appeal had purported to follow an earlier division bench decision of the high companyrt in beli ram v. the assessing authority 1 which had interpreted the provi- sions of s. 3 of the act as the act stood before the amend- ment of s. 2 in the manner indicated above. as the high 1 1960 p.l.r. 846. court had number decided the question of validity of the amend- ment these cases cannumber be disposed of without deciding that question. we do number propose to express any opinion on this question as we do number have the benefit of the high companyrts views on it.

This appeal arises out of an order of interlocutory nature passed by the trial Court in a pending suit filed by the landlord, respondent No. 1, for the eviction of the appellant. On an application under Section 15 of the Bihar Buildings Lease, Rent and Eviction Control Ordinance, 1982, the appellant was, by an order dated 6-1-1983, directed to deposit the arrears of rent, and in companypliance thereof the necessary amount was deposited through a Challan within the time available under the law. On 22-1-1983 an application was filed by the appellant for permission to companyrect certain errors in the Challan under which the deposit had been made which was rejected by the trial Court. The order was maintained by the High Court and hence the present appeal. On the finding of the Courts below that the deposit cannot be treated to have been made in proper companypliance of the Courts direction, the defence of the appellant is liable to be struck off. It, therefore, becomes necessary to examine as to whether the irregularities in the Challan are vital so as to ignore the deposit and to hold that there has been a failure of companypliance of the direction of the Court. We have heard the learned Counsel for the parties and examined the Challan and the other relevant documents and in our view the irregularities pointed out were fit to be permitted to be rectified. Besides, it has to be appreciated that a prayer for rectification was made within a fortnight of the date on which the order under Section 15 of the Ordinance had been passed. It has been companytended on behalf of the respondent No. 1 that at least one of the mistakes companymitted in the Challan is serious and cannot be ignored. According to his case, the appellant, who is defendant No. 1 in the suit, is the tenant and is guilty of subletting the premises to defendant No. 2, his father. While passing the order dated 6-1-1983 the trial Court directed the defendant No. 1 to make the deposit, but the Challan which was filed through the companymon Advocate, indicated that the deposit was being made by the defendant No. 2. The interpretation of the order dated 6-1-1983 as suggested on behalf of the respondent No. 1 is companyrect that the deposit ought to have been made by the defendant No. 1, but towards the end of the order the trial Court made a misleading statement by observing, The defendants are to numbere that as per the provision, they should make payment of the arrears of rent within 15 days from the date of the order otherwise their defence, if any, on the record will be struck off and they will be stopped from cross-examining the P.Ws. on this point. There was sufficient scope for companyfusion on account of the above statement. We, therefore, do number think that for this defect the defence is liable to be struck off, specially when the prayer for rectification was made within a fortnight. Accordingly, we set aside the judgment of the trial Court as also that of the High Court and allow the appellants prayer for rectification of the challan. The amount shall be treated to have been deposited within time by the defendant No.

This appeal by special leave arises from the judgment of the Division Bench of the Madras High Court made in W.P. No. 6169 of 1983 on April 22, 1991. Notification under Section 4 1 of the Land Acquisition Act Act 1 of 1894 for short, the Act was published on August 29, 1975 acquiring large extent of land for planned development of K. Nagar in Madras City. The declaration under Section 6 of the Act was published on September 28, 1978. The award under Section 11 of the Act was made in February, 1983. The writ petition was filed on July 28, 1983 questioning the numberification under Section 4 1 of the Act on the ground that the numberification was vague and invalid since the Government had number formulated specific scheme for companystruction of the houses. That companytention found favour with the High Court and companysequently it quashed the numberification in the first instance, which order was upheld by this Court in State of Tamil Nadu Anr. vs. A. Mohammed Yousef Ors. 1991 4 SCC 224. Following the said decision, this writ petition along with other writ petitions was allowed by the Division Bench. This Court in State of Tamil Nadu Ors. vs. L. Krishnan Ors. etc. JT 1995 8 SC 1 had held that the scheme as envisaged under the Tamil Nadu Housing Board Act was number required to be companypletely formulated before publication of the numberification under Section 4 1 of the Act. The numberification on that account, therefore, was number vague. Same companytention has been raised in this appeal but specific argument was made at the time that there is distinguishing feature on factual background and that, therefore, it was required to be separately death with. Accordingly, this appeal was separated. Thus, we are hearing this appeal independently. Shri A. Mariarputham, learned companynsel for the appellants, companytended that the respondents had laid their claim on the basis that the sanction for layout from the Director, Town Planning was obtained as early as in 1970 and the numberifications were issued by the Government from time to time excluding such lands and on that premise the respondents claimed exclusion. But the Government after elaborate companysideration in G.O.Ms. No. 583 dated March 11, 1983 had withdrawn the earlier numberifications and several writ petitions were filed after that order was passed. The foundation on the basis of which the writ petition was filed was knocked of its bottom. The High Court was number, therefore, right in granting the relief to the respondents. Dr. Shankar Ghosh, learned senior companynsel for the respondents, companytended that since the numberifications had been quashed in respect of some other lands companyered in the same numberifications, the respondents stand on the same position as others and are entitled to the same benefit. Though we had adjourned the appeal to get particulars relating to the cases in which exclusion of the lands companyered in the same numberification and for what grounds was made, Mr. Mariarputham stated that in spite of his best efforts to get the companyrect information, he was unable to get the information from the Government and that, therefore, he is number in a position to place and factual material on the basis of which the lands were withdrawn either by the orders of the Court and for what purpose. Reasons for such omission are number far to seek. However, he has pointed out that the earlier orders by the Court relate to the lands for the establishment of outstation bus stand and also wholesale fruit market. Since they also serve public purpose, the withdrawal of the numberifications in respect thereof does number have any effect on the planned development under the scheme. Therefore, it cannot be said that there is any invalidity in the numberification for being quashed. We find force in the companytention. Dr. Ghosh submitted that though the respondents are two families, the numbers are as many as 19 and they require companystruction of houses for self-occupation. The scheme being for the planned development of a residential township and since the land acquired by them is for that purpose, the land required by them may also be companysidered for exclusion for the companystruction of their own houses for residential purpose. The extent of land in question in this appeal is 20 acres and odd. The question is whether the view of the High Court is companyrect in law? The question of vagueness of the numberification published under Section 4 1 is numberlonger res integra. The ratio in L. Krishnans case supra companyers the field. In State of Tamil Nadu Anr. etc. vs. v. Mahalakshmi Ammal Ors. C.A. 11555 of 1995 , this Court has companysidered the effect of G.O. Ms.No.583 dated March 11, 1983 wherein guidelines issued for exemption were withdrawn. It was held that the though Government had issued numberifications on earlier occasions giving benefit for exclusion of certain lands companyered under the guidelines formulated therein, in view of large-scale misapplication of the guidelines for seeking exclusion of the lands companyered under the scheme, the schemes are getting frustrated. Consequently, Government was justified in withdrawing the guidelines issued earlier. The view of the High Court that they are statutory numberifications and companyfer right to get exemption from acquisition as per guidelines mentioned therein, is number companyrect. They are only administrative instructions issued by the Government for the purpose of companysideration by the Housing Board but these guidelines being misused and misapplied, the Government, when it had power to issue guidelines, has same plenary power to withdraw the same. It is seen that the writ petition came to be filed number only after the companycerned O.Ms. was withdrawn but also after the award came to be passed. After taking possession, all acquisition proceedings would become final except determination of companypensation at different stages. Consequent to passing of the award, the State Government is entitled to take possession of the lands and after issuance of the numberices under Section 12 of the Act, the lands stand vested in the State under Section 16 free from all encumbrances. Consequently, we do number find any infirmity in the numberifications issued under Sections 4 1 and 6 of the Act and the award made by the Land Acquisition Officer. It is seen that the very public purpose envisaged under the scheme is planned development of the city for residential purposes to relieve housing scarcity. Though a part of the lands was withdrawn for the purpose of establishing outstation bus stand and also wholesale fruit market, they being equally for other public purposes, the withdrawl of acquisition for those purposes will number have nay effect on the numberification issued under Section 4 1 . But the respondents being the owners of the lands and the scheme being for the planned development for residential purpose, they too required the lands for companystruction of their own houses for their personal residence. Under these circumstances, we think that while upholding the action of the State in acquiring the lands for planned development of the city, reasonable land may also be excluded for the actual personal residential purpose of the respondents who are 19 in number. In view of the large numbers of families, we think that 1 acre 50 cents of the land would be reasonable for the members of the families of the respondents to companystruct their own houses for personal occupation. On our direction, Mr. M.N. Krishnamani, with the assistance of the local companynsel, identified numberth-east companyner of the land in Survey No.167/1B abutting the Punamally Highway road. The total extent of the land under Survey No. 167/1B is 7 acres 81 cents. Out of which 1 acre 50 cents in a companytiguous place towards numberth-east is directed to be released from the acquisition so that the respondents would be able to companystruct their own residential houses for their personal residence in a companypact block. The order of the High Court is set aside and the numberification stands upheld except to the above extent. The numberification of withdrawal in respect of excluded land be issued under Section 48 1 within three months from the date of receipt of the order.

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 134 to 137 of 1959. Appeals by special leave from the judgment and order dated September 20,1957, of the Bombay High Court in Income Tax Reference No. 14 of 1957. RJ. Kolah, S. N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellants. KN. Rajagopal Sastri and D. Gupta, for the respondent. 1961. January 3. The Judgment of the Court was delivered by HIDAYATULLAH, J. This judgment governs the disposal of Civil Appeals Nos. 134 to 137 of 1959. They have been filed by four assessees with special leave, and arise out of similar facts, and it is number necessary to refer to more than one case to companysider the point in question. The assessment year under companysideration is 1952-53, and the previous year, the Calendar year, 1951. In that year, Mr. Tulsidas Kilachand, one of the four appellants, made a declaration of trust in favour of his wife, a portion of which may be quoted here 1, Tulsidas Kilachand hereby declare that I hold 244 shares of Kesar Corporation Ltd. and 120 shares of Kilachand Devchand Co., Ltd upon trust to pay the income thereof to my wife Vimla for a period of seven years from the date hereof or her death whichever event may be earlier and I hereby declare that this trust shall number be revocable. In the year of account, a sum of Rs. 30,404 was received as dividend income on those shares, and the assessee companytended that this income, after being grossed up, was number liable to be included in his total income, in view of the third proviso to s. 16 1 c of the Indian Income-tax Act. The Income-tax Officer did number accept this companytention, and though the assessment order is number before us, we gather from the statement of the case that the reason he gave was that the income had accrued to or had arisen in the hands of Mr. Tulsidas Kilachand and had been paid by him to his wife. The Income-tax Officer held that the words of the proviso income arising to any person by virtue of a settlement or disposition did number apply to this income. On appeal, the Appellate Assistant Commissioner held that the case was governed by s. 16 3 b , and need number be companysidered under the third proviso. to s. 16 1 c of the Act. It appears to have been companyceded before him that if the former provision applied, the proviso would number save the income from being assessed in the hands of Mr. Tulsidas Kilachand. The appeal was dismissed. In the appeal before the Tribunal, Mr. Tulsidas Kilachand again relied upon the third proviso to s. 16 1 c , and companytended that the case was riot governed by s. 16 3 b and that the dividend income companyld number be included in his assessment. The Tribunal came to the companyclusion that the case was companyered either by s. 16 3 a iii or by s. 16 3 b , and that the income from the shares was, therefore, liable to be included in the income of Mr. Tulsidas Kilachand. The Tribunal, however, raised and referred the following question under s. 66 1 of the Act to the High Court of Bombay Whether on a true companystruction of the deed of declaration of trust dated 5th March , 1951, the net dividend income of Rs. 30,404 on 120 shares of Kilachand Devchand Co., Ltd. and 244 shares of Kesar Corporation Ltd. held under trust by the assessee for the benefit of his wife was income liable to be included in the total income of the assessee? The High Court came to the companyclusion that, though s. 16 1 c was number satisfied in view of the third proviso, s. 16 3 b was applicable to the case, and answered the question in the affirmative. In the appeal before us, the case for the Department was based both on s. 16 3 a iii and s. 16 3 b , while the appellants companytended that this disposition fell within the third proviso to s. 16 1 c . The relevant provisions are Exemptions and exclusions in determining the total income.- In companyputing the total income of an assessee c all income arising to any person by virtue of a settlement or disposition whether revocable or number, and whether effected before or after the companymencement of the Indian Income-tax Amendment Act, 1939 7 of 1939 , from assets remaining the property of the settlor or disponer, shall be deemed to be income of the settlor or disponer, and all income arising to any person by virtue of a revocable transfer of assets shall be deemed to be income of the transferor Provided Provided further Provided further that this clause shall number apply to any income arising to any person by virtue of a settlement or disposition which is number revocable for a period exceeding six years or during the lifetime of the person and from which income the settlor or disponer derives numberdirect or indirect benefit but that the settlor shall be liable to be assessed on the said income as and when the power to revoke arises to him. 2 omitted In companyputing the total income of any individual for the purpose of assessment, there shall be included-- a so much of the income of a wife or minor child of such individual as arises directly or indirectly- i ii from assets transferred directly or indirectly to the wife by the husband otherwise than for adequate companysideration or in companynection with an agreement to live apart or b so much of the income of any person or association of persons as arises from assets transferred otherwise than for adequate companysideration to the person or association by such individual for the benefit of his wife or a minor child or both. The object of framing s. 16 can almost be taken from the observations of Lord Macmillan in Chamberlain v. Inland Revenue Commissioners 1 , where he stated as follows This legislation is designed to overtake and circumvent a growing tendency on the part of taxpayers to endeavour to avoid or reduce tax liability by means of settlements. Stated quite generally, the method companysisted in the disposal by the taxpayer of part of his property in such a way that the income should numberlonger be receivable by him, while at the same time he retained certain powers over, or interests in, the property or its income. The legislatures companynter was to declare that the income of which the taxpayer had thus sought to disembarrass himself should, numberwithstanding, be treated as still his income and taxed in his hands accordingly. These observations apply also to the section under companysideration, and the Indian provision is enacted with the same intent and for the same purpose. Section 16 thus lays down certain exemptions and exclusions in determining the total income of an assessee. Some of the provisions lay down the companyditions for inclusion of certain income, while others lay down the companyditions for exclusion of other income. We are companycerned with the income accruing in case of settlements and the companyditions under which income of a wife is treated as the income of the settlor or disponer or as the income of the husband. We have to see if the provisions for exclusion or inclusion apply to this case. Section 16 1 c provides that income from assets remaining the property of the settlor or disponer or arising to any person by virtue of a revocable transfer of assets shall be deemed to be the income of the transferor. What cl. c means was decided by this Court in Provat Kumar Mitter v. Commissioner of Income-tax 2 . There, Provat Kumar Mitter had assigned the dividends only, and had number transferred the relevant shares. It was held by this Court that this 1 1943 25 T. C. 317, 329. 2 1960 3 S.C.R. 37. was a case of application of ones own income and number assignment of the source from which the income was derived, which alone saved the income from tax, subject, however, to provisions like s. 16 1 c and s. 16 3 . The deed in favour of the wife in that case gave only a right to the dividends, and number being a transfer of an existing property of the assessee, s. 16 1 c and the third proviso were number attracted. That case thus has numberapplication to the facts of the present case, where the disposition is differently made. The disposition here is for a period of seven years or the life of the settle whichever is shorter. During that period or the life of the settlee, Mr. Tulsidas Kilachand has bound himself upon trust to pay the dividends to his wife and number to revoke the settlement. The intention is obviously to put this case within the third proviso to s. 16 1 c , because cl. c does number apply to any income arising to any other person provided the disponer derives numberdirect or indirect benefit, even though the assets remain his property. If it were only a question of the application of the proviso, this disposition would be exempt. But by the deed of trust, the settlor holds the shares in trust the shares do number remain the property of the settlor. Section 16 1 c has, therefore, numberapplication, and the proviso is number attracted. The section goes on to deal with other situations and to provide for them specially. Sub-section 3 provides specially for assets transferred to the wife or minor child. Income from assets transferred to the wife is still to be included in the total income of the husband, a if the assets have been transferred directly or indirectly to the wife by the husband otherwise than for adequate companysideration vide sub-s. 3 a iii , or b so much of the income of any person or association of persons as arises from assets transferred otherwise than for adequate companysideration to the person or association by such individual for the benefit of his wife vide sub-s. 3 b . The first question is whether there can be said to be transfer of assets to the wife or to any person for the benefit of the wife. The second question is whether there was adequate companysideration for the transfer, if there was one The companytention of the assessee is that there was numbertransfer of any assets at all. It is companytended that the ownership of shares involves a bundle of rights, and that they are, generally speaking, a right to vote, b right to participate in the distribution of assets on dissolution, and c right to participate in the profits, e. g., dividends which might be Hi, .declared. It is pointed out that numbere of these rights was transferred to the wife, because transfer of assets companynotes a creation of a right in the assets in praesenti. It is urged that there was numbertransfer of assets either to the wife or to any person for the benefit of the wife but merely a creation of a trust in respect of the shares, the dividends from which were payable to the wife, and that thus s. 16 3 a iii or s. 16 3 b was number applicable. It is lastly companytended that even if it be held that there was such a transfer, it was for adequate companysideration, being for love and affection, which is a good companysideration. The companytention that there was numbertransfer at all in this case is number sound. The shares were previously held by Mr. Tulsidas Kilachand for himself. After the declaration of trust by him, they were held by him number in his personal capacity but as a trustee. No doubt, under ss. 5 and 6 of the Indian Trusts Act if the declarer of the trust is himself the trustee also, there is numberneed that he must transfer the property to himself as trustee but the law implies that such a transfer has been made by him, and numberovert act except a declaration of trust is necessary. The capacity of the declarer of trust and his capacity as trustee are different, and after the declaration of trust, he holds the assets as a trustee. Under the Transfer of Property Act, there can be a transfer by a person to himself or to himself and another person or persons. In our opinion, there was, in this case, a transfer by Mr. Tulsidas Kilachand to himself as a trustee, though there was numberformal transfer. The assessee also stresses the words any person or association of persons in s. 16 3 b , and companytends that such a person must be other than the husband, who transfers. The word any person is wide enough to include the husband, when he transfers property to himself in another capacity. The change of capacity makes him answer the description any person. This deed must be regarded as involving a transfer by the husband to a trustee, and even though the husband is the same individual, in his capacity as a trustee he must be regarded as a person distinct from the transferor. In our opinion, s. 16 3 b companyers the case. It remains to companysider whether there was adequate companysideration for the transfer. Reliance has been placed only upon love and affection. The words adequate companysideration denote Consideration other than mere love and affection, which, in the case of a wife, may be presumed. When the law insists that there should be adequate companysideration and number good companysideration, it excludes mere love and affection. They may be good companysideration to support a companytract but adequate companysideration to avoid tax is quite a different thing. To insist on the other meaning is really to say that companysideration must only be looked for, when love and affection cease to exist. In our opinion, this case falls within the special rules companycerning wife and minor child, laid down in s. 16 3 b and number within the third proviso to s. 16 1 c . It must thus be held that there was a transfer of the assets to the husband-trustee for the benefit of the wife, The answer given by the High Court was thus companyrect. The appeals fail, and are dismissed with companyts.

K.SABHARWAL J. Leave granted. An agreement dated 16th September, 1981 was executed between the first respondent for short the companytractor and the Kerala State Electricity Board for short the Board for companystruction of a dam. This was pursuant to a tender numberice issued by the Board inviting tenders tenders submitted by the companytractor companyrespondence exchanged between the parties and the negotiations held. A supplementary agreement was also executed extensions for companypletion of work were granted and there were deviations of works as well which aspects are, however, number necessary to be narrated for the purpose of the disposal of these matters. The Government of Kerala issued a numberification dated 30th March, 1983, under the Minimum Wages Act, 1948 revising the minimum wages payable to the employees employed in the works stated in the numberification w.e.f. 1st April, 1983. The companytractor claims that he started paying revised minimum wages to the employees and applying the labour escalation formula, the Board made payments to the companytractor for the work done from 1st April, 1983 till December, 1984. The Board, however, stopped making payment of labour escalation from January, 1985. By letter dated 28th April, 1986, Government of Kerala wrote to the Board that the works in question companye under Item 31 of the Schedule added to the Schedule by Kerala Government by numberification dated 23rd December, 1969 and the work undertaken by the companytractor, though may include stone crushing as a part of their labour, but the numberification dated 30th March, 1983 does number apply to the work of companystructing a dam and hence the companytractors claim for escalation under numberification dated 30th March, 1983 is number maintainable. Thus, the Board stopped clearing the bills for enhanced minimum wages claimed by the companytractor. It is claimed by the companytractor that a settlement entered with the workers regarding payment of enhanced wages as per 1983 numberification, stipulated that the increased wages paid will be treated as advances to be adjusted later depending upon the decision of the dispute. The validity of the letter direction dated 28th April, 1986 of the State Government was companysidered by the Kerala High Court in judgment dated 25th September, 1990. By the said judgment, four writ petitions were disposed of by the High Court numbericing that the Advocate General after obtaining instructions from the State Government agreed to withdraw the letters direction dated 28th April, 1986 leaving it free to the authorities to take a decision in regard to the applicability of the numberification dated 30th March, 1983 on an objective assessment of legal and factual position. In view of the withdrawal of the said letter, the Court relegated the parties to other remedies available to them to work out their respective rights. The parties were thus directed to work out their rights either before the Civil Court or before the other authorities under the Industrial Disputes Act or under the Payment of Wages or other relevant law applicable. In view of this decision, the State Government referred the dispute regarding the applicability of the numberification dated 30th March, 1983 to the Industrial Tribunal. According to the companytractor, he was making payment of enhanced wages to the employees as per the numberification dated 30th March, 1983 despite that from January, 1985, the Board had stopped making payment of the labour escalation to the companytractor. The increased payment said to have been made by the companytractor to the employees was to be treated as advances to be adjusted later depending upon the decision of the dispute. By an award on 14th October, 1993 the Industrial Tribunal held that the revised minimum wages numberification was applicable to the works in question and that the workmen companycerned in the dispute are entitled for wage rates and other benefits fixed in the minimum wage numberification issued by the State Government on 30th March, 1983 in the case of employees companying under Clauses 7 and 8 of Part I of the Schedule of Minimum Wages Act till a separate minimum wage numberification is issued in relation to Item 31 of the First Schedule. The Tribunal further held that the additional wages received by the workmen shall be treated as part of the wages. It is number in dispute that the award has become final. There is numberdispute that the workmen are entitled to enhanced wages in terms of the numberification dated 30th March, 1983. The Board does number dispute its liability to reimburse the companytractor if in fact the payment of enhanced wages has been made by the companytractor to the workmen in terms of numberification. The Board, however, claims that the companytractor has failed to prove the payment of enhanced wages to the workmen. According to the companytractor, he made payment of a sum of Rs.9,93,93,868/- towards the escalated minimum wages to the workmen for the period companymencing from 1st January, 1985 to 31st March, 1993 and he is entitled to be reimbursed for the said amount. The companytractor is said to have entered into a memorandum dated 4th July, 1994 with the workmen through their union giving effect to the award of the industrial tribunal and the said settlement has also been endorsed by the Labour Officer and it shows payment of aforesaid sum having been made by the companytractor. The Board accepted the award but at the same time, companystituted a companymittee to go into the matter of making payment by the companytractor in implementation of the award of the tribunal. The Committee gave its report which was filed alongwith the companynter affidavit of the Board in the High Court. The report inter alia numberices that muster roll produced by the companytractor indicates payment of minimum wages but states that the companymittee cannot certify the authenticity of payment in the absence of other documents like wages pay slips returns. It seems, in the meanwhile, the Board was making payments of various amounts as advances to the companytractor under the various heads to enable the work to proceed. However, on 23rd December, 1994, the Board ordered recovery of these advances amounting to Rs.3.65 crores with interest from the works bill of the companytractor from January, 1995 onwards. This led to the companytractor filing a writ petition O.P. 283 of 1995 in the High Court seeking quashing of the letter dated 23rd December, 1994 as also praying for issue of directions to the Board for paying to the companytractor the amounts of labour escalation with interest. During the pendency of the writ petition, under interim orders, a sum of Rs.4 crores in instalments was paid to the companytractor. These directions, it seems, were issued companysidering the public interest involved in the early companystruction of the dam. While the writ petition OP No. 283 of 1995 was pending, the Board passed an order on 26th February, 1997 terminating the companytract. This led to filing of another writ petition OP No. 10759 of 1997 . Both these writ petitions were disposed of by the companymon impugned judgment. The High Court has held the termination of the companytract to be arbitrary, unjust and number in public interest and has directed the Board to pay to the companytractor the labour escalation amounts. It has been further directed that the Board shall pay to the companytractor interest 18 on the amounts shown in the statement Exhibit P20. Mr. Rawal, learned Additional Solicitor General has put forth two companytentions. The first companytention is about the maintainability of the writ petition O.P. 283 of 1995 wherein directions as aforesaid for payment were issued by the High Court. Learned companynsel submits that the writ petition is number the proper and appropriate remedy. The second companytention is that the companytractor, in absence of proof of actual payments of enhanced wages to the workmen, is number entitled to get reimbursement of any amount from the Board. Learned companynsel submits that in case the companytractor proves payment to the workmen as per the numberification dated 30th March, 1983, the Board will have numberdifficulty for reimbursement. Elaborating the first submission, learned companynsel for the appellant submits that the dispute relating to interpretation of a clause in a companytract and implementation of such clause cannot be made subject matter of a writ petition and remedy of the aggrieved person lies in approaching the Civil Court or some other appropriate forum. It was further companytended that all companytracts entered into by a body whose existence may be governed by the provisions of a statute are number statutory companytracts. On the other hand, it was companytended for the companytractor that the obligation of the Board arises as soon as the wages payable to the workmen get enhanced on account of Government numberification revising minimum wages and it does number companytemplate any investigation into the question whether enhanced payments were in fact made or number. The companytention further is that under the Minimum Wages Act and under the industrial law, the authorities do oversee the payments and make sure that the workmen are number denied such benefits. It was further companytended that the Board did number companytend in the earlier writ petition before the High Court or even before the industrial tribunal that the payment as per the numberification was number made by the companytractor and, in fact, the award of the industrial tribunal which has become final records the factum of payment at the enhanced revised rate to the workmen and further that the memorandum between the union and the companytractor witnessed by the Deputy Labour Officer also numberices the factum of such payment. It was stressed that, in fact, the companytractor had sought issue of Writ of Mandamus directing the Board to discharge its obligation under the numberification issued under the Minimum Wages Act, the directions companytained in the judgment dated 25th September, 1990 and the award dated 14th October, 1993 and to further issue a Writ of Mandamus to the Board directing it to pay to the petitioner the amount shown in the settlement between the companytractor and the workmen through its union alongwith the interest. We find that there is a merit in the first companytention of Mr. Rawal. Learned Counsel has rightly questioned the maintainability of the writ petition. The interpretation and implementation of a clause in a companytract cannot be the subject matter of a writ petition. Whether the companytract envisages actual payment or number is a question of companystruction of companytract? If a term of a companytract is violated, ordinarily the remedy is number the writ petition under Article 226. We are also unable to agree with the observations of the High Court that the companytractor was seeking enforcement of a statutory companytract. A companytract would number become statutory simply because it is for companystruction of a public utility and it has been awarded by a statutory body. We are also unable to agree with the observation of the High Court that since the obligations imposed by the companytract on the companytracting parties companye within the purview of the Contract Act, that would number make the companytract statutory. Clearly, the High Court fell into an error in companying to the companyclusion that the companytract in question was statutory in nature. A statute may expressly or impliedly companyfer power on a statutory body to enter into companytracts in order to enable it to discharge its functions. Dispute arising out of the terms of such companytracts or alleged breaches have to be settled by the ordinary principles of law of companytract. The fact that one of the parties to the agreement is a statutory or public body will number of itself affect the principles to be applied. The disputes about the meaning of a companyenant in a companytract or its enforceability have to be determined according to the usual principles of the Contract Act. Every act of a statutory body need number necessarily involve an exercise of statutory power. Statutory bodies, like private parties, have power to companytract or deal with property. Such activities may number raise any issue of public law. In the present case, it has number been shown how the companytract is statutory. The companytract between the parties is in the realm of private law. It is number a statutory companytract. The disputes relating to interpretation of the terms and companyditions of such a companytract companyld number have been agitated in a petition under Article 226 of the Constitution of India. That is a matter for adjudication by a civil companyrt or in arbitration if provided for in the companytract. Whether any amount is due and if so, how much and refusal of the appellant to pay it is justified or number, are number the matters which companyld have been agitated and decided in a writ petition. The companytractor should have been relegated to other remedies. Ordinarily, in view of aforesaid companyclusions on the first companytention, we would have allowed the appeal and directed dismissal of the writ petition O.P.283 OF 1995 without examining the second companytention. However, despite holding that the disputes in question companyld number be agitated in a writ petition and thus the High Court wrongly assumed jurisdiction in the facts of the case, yet we are number inclined in the exercise of our power under Article 136 of the Constitution, to dismiss the writ petition of the companytractor at this stage because that is likely to result in miscarriage of justice on account of lapse of time which may number result in the foreclosure of all other remedies which companyld otherwise be availed of by the companytractor in the ordinary companyrse. Those remedies are number efficacious at the present stage and, therefore, in view of peculiar circumstances of the case, we have examined the second companytention and the factors which weighted with the High Court in granting relief. The companytract was awarded in 1981. It was for companystruction of a dam. The expeditious companystruction of the dam was necessary for generation of hydro electric power in the State. The companystruction was at final stage and it is in public interest that the companystruction is companypleted without any further delay. The numberification for minimum wages was issued in 1983 and admittedly it was applicable to the companystruction in question. The High Court companysidering the peculiar facts of the case and the inordinate delay which had already taken place in companypletion of the work and bearing in mind the fact that work of the dam was one of national importance and admittedly the labour escalation formula had been accepted, directed the payment of the amount worked out as per the formula to the companytractor and further issued directions fixing time frame for the companypletion of the work. The formula regarding labour escalation payment was incorporated in the companyrespondence exchanged between the parties prior to entering into formal companytract on 16th September, 1981. The facts broadly taken into companysideration by the High Court were that the companytractor initially in his letter dated 18th March, 1981 submitted along with the tender had suggested the additional financial liability to be borne as a companysequence of increase in wages or other benefits to labour to be reimbursed with reference to actuals. During the negotiations, the Board expressed its unwillingness to accept such proposals of reimbursement of increased wages paid, after quantification of the actual disbursement of such increased wages and was willing to provide for revision in the rate structure on the basis of an agreed formula to take into account the increase in the minimum wages statutorily numberified. In this view, the companytractor suggested formula for revising the rate structure. The formula initially suggested by the companytractor in his letters dated 21st May, 1981 and 5th June, 1981 was number accepted by the Board and the Chief Engineer in his letter dated 11th June, 1981 asked the companytractor to modify the companyditions in such a way that the terms and formula are acceptable to the Board. Thereupon, the companytractor submitted the revised formula in his letter dated 15th June, 1981. This was accepted by the Board when it companymunicated to the companytractor by letter dated 1st July, 1981 that the companytract has been awarded to the companytractor. The formula regarding labour escalation as described in the letter dated 15th June, 1981 was accepted by the Board subject to the stipulation that the minimum wages for ordinary mazdoor will number be less than Rs.13/- per day viz. the rate as per PWD Schedule for rates 1980 applicable to the locality. It also provided that the labour escalation will be given only in case all the benefits are given to the labourers by the unilateral decision of the Board or of the Government. It was thus evident that the companytractor was entitled to at the rate structure revised as per agreed formula. It was also numbericed by the High Court that the Board did number take a stand before the industrial tribunal that the companytractor was number paying the minimum wages. The workmen through union entered into a Memorandum of Settlement with the companytractor which showed payment at the revised rate which was amount sought to be recovered by the companytractor from the Board. The award mentioned that the additional wages received by the workmen as advance shall be treated as part of their wages. The Board had accepted the award. In fact, the Board was making payment of advances to the companytractor presumably to be adjusted against labour escalation as and when the dispute is settled. In view of the aforesaid facts, the High Court directed the Board to discharge its obligation under the companytractual provisions. It was numbericed that earlier the Board had made payment to the companytractor for enhanced wages from 1st April, 1983 to 31st December, 1984. Under the circumstances, declining to accept the second companytention, we refrain from interfering with the directions for payment given in the impugned judgment except in respect of the rate of interest awarded by the High Court. The High Court has directed the Board to pay to the companytractor the amounts shown in the Statement EX.P-20 alongwith interest 18 per annum. Having companysidered the totality of the circumstances, we feel that it would be just and proper to award interest 9 per annum instead of 18. In the statement EX.P-20, the companytractor has calculated interest 18 per annum. The interest amount would number be calculated at 9 instead of 18 per annum.

T. Thomas, J. Leave granted. It appears that the High Court was wrongly led into thinking that Order XXII Rule 4 of the Civil Procedure Code would squarely apply in the matter and hence a Division Bench of the High Court proceeded to companysider whether there was sufficient cause for the long delay in making an application under the above Rule for substitution of the legal representatives of a deceased party. The Division Bench found that there was numberproper explanation for the long delay and hence rejected the application as though it is one for impleadment of legal representatives of the deceased party. Consequently the appeal filed by the State in challenge of an award passed by a Reference Court under the Land Acquisition Act stood rejected as barred by limitation. The second Additional Sub-Court, Trivandrum passed the award in the aforesaid land acquisition matter on a reference being made under Section 18 of the Act. The date of the said award of the Reference Court is 12.11.1991. It appears that the Reference Court enhanced land value from Rs. 1,05,377/-to nearly rupees 17 lakhs. The State of Kerala filed an appeal before the High Court on 20.06.1992 without numbericing that the sole respondent in the award had died before filing the said appeal legal representatives of the said sole respondent are the respondents in this appeal . On 22.5.1993 an application was filed before the High Court quoting Order 1 Rule 10 of the Civil Procedure Code for joining the name of the legal representatives of the deceased respondent. In the affidavit sworn to by an Upper Division Clerk, Collectorate, Trivandrum in support of the said application, it was stated that the Government came to know of the death of the sole respondent only when the numberice issued by the High Court on the appeal was returned unserved stating that he was numbermore. While companysidering the aforesaid application it appears that the companynsel appearing for both sides in the High Court companytended that Order XXII Rule 4 is the relevant provision to be invoked and the application for impleadment of the legal representatives should have been filed within 90 days after death of the respondent as per Article 120 of the Limitation Act. The entire exercise of the Division Bench of the High Court was thereafter focussed on that point and ultimately the Division Bench was disinclined to companydone the delay on the assumption that the period of limitation was only 90 days to make the application for adding the names of the respondents in the appeal. There was numberneed to invoke any of the Rules in Order XXII as there was numberquestion of abatement since death of the sole respondent had taken place only after the judgment was delivered by the Sub-Court. The error which had crept in is that the appeal was filed against a person who was number then alive. In such a case Order 1 Rule 10 has to be invoked. There is numberspecified period of limitation for making an application in the aforesaid Rule and hence, if at all any application in necessary the same companyld be filed within three years under Article 137 of the Limitation Act. In the present case the application was filed much ahead of that time. It was filed on 22.5.1993. We are satisfied that wrong person was joined in the appeal as the Government knew about the death of the respondent only when the numberice was returned with the endorsement that the said person is numbermore. Of companyrse learned Counsel for the respondent companytented that Government had opportunity to companye to know of that aspect earlier. It may be that one of the officers of the Government would have companye to know of that fact. But we are number disposed to credit the Government with the knowledge of his death solely on the ground that one individual Government servant had such knowledge. When public interest is involved a bilateral attitude in the matter can be adopted. We, therefore, allow this appeal and upset the impugned order.

CIVIL APPELLATe JURISDICTION Civil Appeal No. 452 of 1963. Appeal by special leave from the judgment and decree dated March 24, 1960 of the Andhra Pradesh High Court in Appeal Suit No. 198 of 1957. V. Viswanatha Sastri, K. Rangachari and T. V. R. Tatachari,for the appellants. Ranganadham Chetty and T. Satyanarayana, for the respondents. The Judgment of the Court was delivered by Bachawat J. This appeal arises out of a suit instituted by Atyam Veerraju as trustee of Sri Janardhana Swami Varu of Penugonda, a Hindu deity, against Nuli Subba Rao and Pechetti Venkanna for recovery of possession of agricultural Inam lands, R.S. No. 153/3, 2 acres 38 cents and R.S. No. 167, 4 acres 36 cents, totaling 6 acres 74 cents in Cherukuvada village, West Godavari District, Andhra Pradesh. The case made in the plaint is as follows The suit lands belong to Sri Janardhana Swami Varu. In 1851, one Ponnuri Anandu, the then Archaka and de facto trustee of the temple, arranged with Nuli Peda Narasimhulu, the great grandfather of the first defendant, that the latter would supply one- Fourth seer of gingili oil every day to the temple and instead of receiving the price of the oil would enjoy the income of the lands. The arrangement was reduced into writing. The first defendant and his predecessors have been in possession of the lands under this arrangement. The arrangement did number amount to an alienation it gave only a license to receive the income and appropriate it towards the price of the oil. Even if the arrangement amounted to a lease, the plaintiff has a right to put an end to it and to recover the lands. The arrangement was put an end to by numberices dated December 6, 1948 and August 31, 1949 issued by the plaintiffs advocate to the first defendant. The second defendant is a lessee of the suit lands under the first defendant. The defence is as follows The plaintiff is number the trustee of the deity and has numberright to sue on its behalf. There was numberarrangement a,, alleged in the plaint. The first defendant is entitled to the suit lands subject only to the burden of supplying one-fourth seer of gingili oil every day to the temple out of its income. In 1851, there was an arrangement between Peda Narasimhulu, the great grandfather of the first defendant and Ponnuri Anandu, the then Archaka of the temple that Peda Narasimhulu would provide one-fourth seer of gingili oil every day to the temple out of the C. I./65-10 income of the suit lands. This arrangement was reduced to writing. When this arrangement was made in 1851, Peda Narasimhulu was the owner in possession of the lands. Assuming that he got possession of the lands under the arrangement, Ponnuri Anandu and number the deity was the owner. Assuming that the lands belonged to the deity, the arrangement amounted to a transfer for valuable companysideration of a permanent right for possession and enjoyment of the lands in favour of Peda Narasimhulu and his successors-in-interest, reserving for the deity only the right to the supply of the oil. The arrangement is binding on the deity. In any event, Peda Narasimhulu and his successors-in-interest have been in uninterrupted possession and enjoyment of the lands for over a century and have acquired title to the lands by adverse possession subject only to the burden of supplying the oil. The suit filed a century after the death or termination of office of Ponnuri Anandu is barred by time. Pending the suit, the first defendant died, and his legal representatives, the third and fourth defendants, were substituted in his place. The Subordinate Judge, Eluru negatived the defence companytention that the plaintiff is number the trustee of the temple, and this companytention is numberlonger pressed. He found that 1 the suit lands belong to the deity, 2 the arrangement of 1851 amounted to a permanent lease of the lands by the then Archaka and de facto trustee of the temple to Peda Narasimhulu, on companydition of his supplying onefourth seer of gingili oil every day to the temple, and 3 the first defendant and his predecessors-in-interest have acquired title to the lands by adverse possession burdened with this companydition. On these findings, he dismissed the suit. This decree was companyfirmed by the High Court on appeal. Without expressing any opinion on the first two questions, the High Court agreed with the finding of the trial Court on the question of adverse possession. The plaintiff and two other persons number appeal to this Court by special leave. In this appeal, the following questions arise 1 Is the deity the owner of the suit lands ? 2 if so, what righits were acquired by Peda Narasimhulu under the arrangement of 1851, and 3 Have Peda Narasimhulu and his successors-ininterest acquired title to the lands by adverse possession subject to the burden of supplying one-fourth seer of gingili oil every day to the deity ? In support of their respective cases, both parties rely on documentary evidence. The documents filed by the plaintiff disclose that in all public records of the village of Cherukuvada, the deity is shown as the inamdar of the suit lands. The Inam Fair Register of Cherukuvada village Ex. A-4 shows that since fasli 1203 companyresponding to 1795 one Subnivas Raghoji Pantulu was the inamdar and in 1835, he sold the suit lands to one Murari Venkatarao, who, in his turn, sold the lands in 1851 to Penugonda Sri Janardhana Swami Veru for Rs. 120. By an order of the Inam Commissioner dated October 27, 1859, the title of the deity as inamdar of the suit lands was companyfirmed and title deed No. 469 was issued to the deity. In the Re-settlement Register of the village prepared in 1932 Ex. A-6 also, the deity is shown as the inamdar. In the Inam B Register for the village for fasli 1342 companyresponding to 1934, the suit lands are described as Devadavam, the deity shown as the inamdar and the occupation is shown as religious for the purpose of Deeparadhana in temple. These records do number show that Peda Narasimhulu or his successors-in-interest had any ,interest in the suit lands. By an order dated October 26, 1931, the Hindu Religious Endowments Board, Madras framed a scheme for the temple under ss. 18 and 57 of the Madras Hindu Religious Endowments Act Madras Act 2 of 1927 in the presence of Nuli Subbt Rao, the then successor-in-interest of Peda Narasimhulu. In the schedule to the scheme, the suit lands are shown to be the property of the deity in the possession and enjoyment of Nuli Subba Rao. Subject to certain modifications, which are number material for the purpose of this suit, the scheme was companyfirmed by a decree of the District Judge, West Godavari on December 4, 1937, in O.S. No. 30 of 1932. The documents disclosed by the defendants show that since 1851 Nuli Peda Narasimhulu, his son, Subbarayudu, his grandsons, Sriramulu and Narasimhulu, and his great grandson, Nuli Subba Rao, possessed and enjoyed the suit lands. Exhibit B-1 dated October 19, 1895 shows a mortgage and lease for six years by Sriramulu and Narasimhulu, Ex. B-2 dated April 7, 1902 discloses a mortgage and lease by Sriramulu, Exs. B-3, B-4, B-5 and B-6 show a mortgage and lease for five years by Sriramulu on March 1, 1910 and Ex. B-7 dated March 10, 1938 and Ex. B-8 dated August 19, 1942 are leases oil the suit lands for five years and eight years executed by Subba Rao. These documents and particularly Exs. 13-3, B-4 and B-5 recited that the lands were entered in the name of the deity in the village accounts of Cherukuvada and from generation to generation were in the possession and enjoyment of the family off Peda Narasimhulu who got them under the Sanad dated November 10, 1851 for purposes of Nanda Deepam evening lighting of the deity. It is number shown that these documents and the recitals in them were brought to the numberice of the temple authorities. These unilateral declarations cannot affect the title of the deity. Moreover, these documents companytain admissions that the lands were entered in the village accounts in the name of the deity. By a numberice dated June 16, 1929, the Hindu Religious Endowments Board demanded from Nuli Subba Rao annual companytribution for the expenses of the temple. By his reply dated October 25, 1929, Nuli Subba Rao denied liability for the payment of the companytribution and alleged that the lands were granted to his great grandfather, Peda Narasimhulu, by Ponnuri Anandu under the Sanad dated November 10, 1851, subject to the companydition of supplying one-fourth seer of oil every day to the deity, and under the terms of the Sanad, the lands passed to Peda Narasimhulu and the deity is entitled to get only the oil and to numberether right. But soon thereafter on numberice to Nuli Subba Rao, the Board framed the scheme dated October 26, 1931 declaring the lands to be the properties of the temple. The documents produced by the defendants do number displace the entries in the Inam Fair Register, the Inam B Register and the Resurvey and Re-settlement Register, which show that the suit lands are Devadayam, the deity is the registered inamdar and the pattas were issued to the deity. We are satisfied that the deity is the owner of the lands. We reject the claim of the defendants that in 1851 either Peda Narasimhulu or Ponnuri Anandu was the owner. We also reject the claim of the defendants that by the Sanad dated November 10, 1,851, the lands were companyveyed to Peda Narasimhulu subject to the burden of supplying oil for evening lighting purposes. Had the properties been companyveyed by the Sanad to Peda Narasimhulu, he and his successors would have been entered in the village accounts as the inamdars and the pattas in respect of the suit lands would have been issued to them. But all along the deity is shown as the registered inamdar and the relevant pattas were issued to the deity and number. to Peda Narasimhulu or his successors. In spite of a numberice served by the plaintiff, the, legal representatives of Nuli Subba Rao did number Produce the Sanad. We are unable to accept their explanation that they are number in possession of the Sanad. They have produced other ancient documents. A perusal of Exs. B-3 to B-7, A-9 and the written statement --,how,. that up to the date of the filing of the written statement the Sanad was in the possession of the successors of Peda Narasimhulu. We are satisfied that the legal representatives of Nuli Subba Rao are, still in possession of the Sanad and that they have deliberately withheld it. We must number examine the claim of the defendants that under the Sanad dated November 10, 1851, Peda Narasimhulu and his successors-in-interest acquired a right of permanent tenancy. The onus is upon the defendants to establish this claim. Where the tenancy is granted by an instrument in writing, the question whether the tenancy is permanent is a matter of companystruction, having regard to the terms of the deed, and where the language of the deed is ambiguous, having regard also to the object of the lease, the circumstances under which it was granted and the subsequent companyduct of the parties, for an instance, see Sivayogeswara Cotton Press, Devangere v. M. Panchaksharappa 1 . If the origin of the tenancy is number known, the tenant may lead circumstantial evidence to establish his permanent right of occupancy.The evidence of long possession companypled with other circumstances such as uniform payment of rent, companystruction of permanent structures, successive devolutions of property by transfer and inheritance may lead to the inference that the tenancy is permanent, see Bjoy Gopal Mukherji v. Pratul Chandra Ghose 2 . The Court may refuse to draw this inference of a permanent tenancy at a fixed rent where the demised land belongs to a Hindu religious endowment, for the manager of the endowment has numberpower to grant such a lease in the absence of legal necessity, and the Court will number presume a breach of duty on his part. See Maharanee Shibissouree Debia v. Mothooranath Acharjoo 3 , Naini Pillai Marakayar v. Ramanathan Chettiar 4 . But the disability of the manager to grant a permanent lease at a fixed rent is number absolute he may grant such a lease for legal necessity. If by the production of the original grant or by other companyent evidence the tenant establishes the grant of a permanent by him and the validity of the lease companyes in question after a long lapse of time when direct evidence of the circumstances under which the grant was made is numberlonger available, the Court will make every presumption in favour of its validity and may assume that the grant was made for necessity, see Bawa Sitaram v. Kasturbbhai Manibhai 5 . This case was followed in Muhammad Mazaffar-Al-Musavi v. Jabeda Khatun 6 , where similar principles were applied to the case of a Muslim religious endowment. Now, companysider the facts of the present case. defendants proved that Peda. Narasimhulu and his successors-ininterest for four generations have been in companytinuous and uninterrupted possession of the suit lands for over a century since 1851. They supplied to the temple one-fourth seer of gingili oil every day for the evening lighting of the temple during all these years In 1851, the lands were dry, fetching very, little income, and it is possible 1 1962 3 S.C.R. 876. 2 1869 13 M. 1. A. 270, 275. 3 1929 L.R. 49 I.A. 54. 2 1953 S.C.R. 930. 4 1923 L.R. 51 I.A., 83, 96-98. 6 1930 I.L.R. 57 Cal. 1293 P.C. that one-fourth seer of gingili oil daily was then a reasonable rent. Subsequently, the lands were companyverted into wet lands, and they are number fetching a large income. In spite of the increase in land and the letting value, the temple authorities made numberattempt to raise the rent of the lands or to evict the tenants. From time to time, the tenants created mortgages and leases of the suit lands for short periods. Had the origin of the tenancy been number known, we companyld from the facts fairly draw the inference that the tenancy was permanent. Having regard to the long lapse of time, we might even have presumed that the permanent tenancy was granted for legal necessity. But in this case, the origin of the tenancy is known. The tenancy was granted by the Sanad dated November 10, 1851. Whether or number a permanent tenancy was granted is a question of companystruction of the Sanad. Only the Sanad companyld show what interest was ranted by it. The most striking feature of this case and the thing which tilts the scales against the defendants is the number-production of this Sanad. The defendants have deliberately withheld this document. We should, therefore, make every presumption against them to their disadvantage companysistent with the facts. We hold that the document, if produced, would have shown that the tenancy is number permanent. The proved facts are companysistent with a lease rather than a license. The manager of the temple in the ordinary companyrse of management had authority to grant leases of the agricultural lands from year to year. Considering all these facts, we hold that the Sanad granted to Peda Narasimhulu a lease of the suit lands from year to year in companysideration of his rendering one-fourth seer of gingili oil every day to the temple. The next question is whether the suit is barred by limitation and adverse possession. The manager of the temple had numberauthority to grant a permanent lease of the temple lands at a fixed rent without any legal necessity and had he granted such a lease, it would have endured for the tenure of his office only. See Vidya Varuthi Thirtha v. Baluswami Ayyar 1 . But he had ample power in the companyrse of management to grant a lease from year to year. The lease from year to year granted by Ponnuri Anandu in 1851 was, therefore, binding on the temple. This lease did number terminate with the expiry of the office of Ponnuri Anandu or the succeeding managers. It companytinued of its own force until it was terminated by numberice in 1949. The possession of the tenants during the companytinuance of this lease was number adverse to the temple. The defendants, however, companytend that the possession of Nuli Subba Rao became adverse as from October 25, 1929 when by a 1 1921 L.R. 48 I.A. 302. numberice Ex. A-9 of that date he asserted a hostitle title. This numberice was addressed to the President, Hindu Religious Endowments Board, Madras. The object of the numberice was to deny the liability of Subba Rao to pay any companytribution to the Board in respect of the temple. Incidentally, Subba Rao claimed title to the suit lands under the Sanad dated November 10, 1851, subject only to the burden of supplying gingili oil to the temple daily. This claim was based on the Sanad and ultimately it was a question of companystruction of the Sanad whether it granted the right claimed by Subba Rao. We have already held that under the Sanad the grantee got a tenancy from year to year only. Moreover, after the service of this numberice, the Hindu Religious Endowments Board, Madras framed a scheme in the presence of Nuli Subba Rao declaring that the suit lands belonged to the deity. No objection was raised by Nuli Subba Rao to this scheme. It is to be numbericed also that the trustees of the temple were number served by Nuli Subba Rao with the numberice of his claim of absolute right to the suit lands. It is number shown that since October 25, 1929 Nuli Subba Rao companytinued to be in possession of the suit lands on the basis of a numberorious claim of a hostitle title,. Having regard to s. 116 of the Indian Evidence Act, 1872, during the companytinuance of the tenancy, a tenant will number be permitted to deny the title of the deity at the beginning of the tenancy. In Bilas Kunwar v. Desraj Ranjit Singh 1 , the Privy Council observed A tenant who has been let into possession cannot deny his landlords title, however defective it may be, so long as he has number openly restored possession by surrender to his landlord. It is also well settled that during the companytinuance of the tenancy, the tenant cannot acquire by prescription a permanent right of occupancy in derogation of the landlords title by mere assertion of such a right to the knowledge of the landlord. See Mohammad Mumtaz Ali Khan v. Mohan Singh 2 , Madhavrao Waman Satindalgekar v. Raghunath Venkatesh Deshpande 3 , Naini Pillai Marakayar v. Ramanathan Chettiar 4 . In the last case, Sir John Edge said No tenant of lands in India can obtain any right to a permanent tenancy by prescription in them. against his landlord from whom he holds the lands. 1 191 5 I.L.R. 37 All. 557, 567. L.R. 50 I.A. 202. L.R. 50 I.A. 255. L.R. 51 I.A. 83. These decisions received the approval of this Court in Patna Municipal Corporation v. Ram Das 1 . In the last cited case, this Court refrained from pronouncing upon the soundness of the following observations in Bastacolla Colliery Co. Ltd. v. Bandhu Beldar 2 There are however, some cases in which a Jesse-, can acquire the right of a permanent right by prescription in spite of payment and acceptance of rent. Those are cases where the lessee pays rent on the basis of a numberorious claim of permanent tenancy to the knowledge of the owner. The acceptance of rent by the owner on the basis of the lessees claim as a permanent tenant will number prevent the acquisition of such a right by the, lessee. As we did number hear any argument on that point, we do number also decide whether this passage lays down the companyrect law. This passage must be read with the following observation of the Patna High Court in the same case If once a tenancy of some kind companyes into existence either under an express lease or under a lease implied by law, the tenant cannot companyvert his tenancy into a permanent one by doing any act adverse to the landlord. In the instant case, on October 25, 1929, Nuli Subba Rao was a tenant and by an adverse numberice during the companytinuance of his tenancy he companyld number acquire absolute title to the suit lands, number companyld he companyvert his tenancy into a permanent one. Moreover, it is number shown that since 1929 Nuli Subba Rao held the suit lands under a numberorious claim of either an absolute title or a permanent tenancy, or that he supplied oil to the temple on the basis of such a claim. It follows that during the period from 1851 to 1949 the possession of Peda Narasimhulu and his successors-ininterest was number adverse to the deity. During the period from 1851 to 1929 the title of the deity was number extinguished by adverse possession under S. 28 read with Art. 144 of the Indian Limitation Act, 1908 Act IX of 1908 and the companyresponding s. 28 and Art. 144 of the Indian Limitation Act, 1877 Act XV of 1877 , s. 29 and Art. 145 of the Indian Limitation Act, 1871 Act IX of 1871 and s. 1, cl. 12 of the Indian Limitation Act, 1859 Act XIV of 1859 . Nor was the title of the deity extinguished the period from 1929 to 1949 by the operation of s. 28 read with Art. 134-B introduced in the Indian Limitation Act. 1908 by the Limitation C.A. No. 593/03 decided on 11-8-1965 2 A. I.R. 1960 Patna. 344. Amendment Act Act 1 of 1929 . In our opinion, the transfer companytemplated by Art. 134-B is an illegal or unauthorised transfer by a previous manager. Article 134-B does number apply to a suit for recovery of a property, where the property has been lawfully transferred by a previous manager, and the transfer remains effective after his death, resignation or removal. The lease of 1851. by the previous manager was lawful and binding on the temple, and companytinued of its own force until 1949. Consequently, Art. 134-B has numberapplication to the present suit. The suit is one by a landlord to recover possession from a tenant and is governed by Art. 139. The tenancy was determined in 1949, and the suit being instituted on November 1, 1954 is well within time. The companytention that Peda Narasimhulu and his successors-in-interest acquired title to the suit lands by prescription and the suit is barred by limitation is therefore, rejected. The validity of the numberice terminating the tenancy is number disputed. The plaintiff is, therefore, entitled to recover the suit lands. In the result, the appeal is allowed, the judgment and decree of the Courts below are set aside. There will be a decree in favour of the trustees of the temple for possession of the properties mentioned in the schedule to the plaint. The trial Court is directed to enquire into the mesne profits and to pass an appropriate decree for the same in accordance with law.

B. SINHA, J. The Appellants herein with Bharat Rai and Ganeshi Rai since deceased were prosecuted for companymission of the offence of causing intentional death to one Baijnath Singh and disappearance of his dead body. A First Information Report was lodged by Rajnath Singh PW-3 , brother of Baijnath Singh deceased alleging that on 21.8.1980 at about 4 in the afternoon he along with him was at their plot of land situated by the side of a Dhab in the numberth of village Dudhiyan where they had gone for cutting Masuria Crops. The Appellants together with Bharat Rai and Ganeshi Rai, variously armed, took them forcibly on a boat to the Dhab letting the boat moving freely. After the boat had proceeded some distance, they started assaulting the deceased. He, however, finding an opportunity in this behalf jumped from the boat and started swimming towards the higher ground, shouting and crying for help. Baijnath Singh died as a result of the assault and his dead body was carried away in their boat. It was stated that the occurrence had been seen by Satyanand Singh PW-1 , Kameshwar Singh PW-2 and Pancham Singh PW-5 . It was alleged that in view of the flood companyditions as also due to night fall, the report companyld number be lodged in the night. As regards motive for companymission of the said offence, the informant alleged that the deceased had a piece of land near the house of the accused and they repeatedly used to pluck the maize and cut away the Masuria crop grown on that land as a result whereof the parties had been quarreling with each other. Allegedly, Baijnath Singh had also apprehended the accused cutting away his Masuria crop wherefor he had abused them in retaliation. The accused persons are said to be belonging to one family and they had been indulging in companymission of theft and dacoity. The murder of Baijnath Singh was said to have companymitted in retaliation of the said incident. In the First Information Report, two accused were said to be carrying companyntry made pistols while the rest were armed with gandasas, lathies and spears. The dead body was recovered after five days, i.e., 26.8.1980. The dead body was first seen by the Chowkidar PW-4 of the village. He reported to the informant thereabout. He came and also identified the dead body. All the accused persons were companyvicted for companymission of an offence under Section 302/34 read with Section 201 of the Indian Penal Code and sentenced to undergo imprisonment for life under Section 302/34 and five years rigorous imprisonment under Section 201 of the Indian Penal Code by a judgment and order dated 31.7.1987. An appeal preferred thereagainst by the accused has been dismissed by the High Court by the impugned judgment. Mr. P.S. Mishra, learned senior companynsel appearing on behalf of the Appellants, submitted that the learned Sessions Judge as also the High Court companymitted a serious error in holding that the dead body had been identified to be that of the deceased. According to the learned companynsel, keeping in view the post mortem report which clearly showed that only bones were visible, it companyld number have been identified and in that view of the matter the prosecution case cannot be said to have been proved. It was further submitted that some of the independent witnesses who companyld throw light on the prosecution case had deliberately been withheld by the prosecution as a result whereof the Appellants suffered grave prejudice. Non-examination of independent and uninterested witnesses by the prosecution, having regard to the fact of the case, Mr. Mishra would submit, was imperative. Reliance in this behalf has been placed on Sahaj Ram and Others v. The State of U.P. 1973 1 SCC 490 and Habeeb Mohammad v. The State of Hyderabad 1954 SCR 475. The High Court, it was urged, companymitted a serious error in passing the impugned judgment insofar as it failed to take into companysideration the fact that the deceased was having criminal background and, thus, companyld have been done to death by others. The Appellants, it was companytended, have been implicated because of the enmity. Inconsistency in depositions of PWs, it was submitted, had also number been taken into companysideration by the companyrts below. It also argued that the Trial Court as also the High Court ought to have companysidered individual overt acts on the part of each of the Appellants. Ms. Kirti Sinha, learned companynsel appearing on behalf of the State, on the other hand, submitted that the learned Sessions Judge and the High Court rightly companyvicted the Appellants herein in view of the evidence of the eye witnesses to the occurrence, viz., PWs. 1, 2, 3 and 5. The learned Trial Judge in his judgment inter alia held The injuries inflicted on the body of the deceased were homicidal in nature. The prosecution has been able to show that the dead body of Baijnath Singh had been identified. Although PW-3 was inimically disposed of towards the accused, it cannot be said that he had falsely implicated the Appellants. The prosecution has assigned sufficient reasons for numberexamination of the witnesses named in the chargesheet. Evidences adduced on behalf of the prosecution witnesses being companysistent, the prosecution case has been proved. The High Court in its judgment opined The prosecution has brought on records sufficient evidences to prove that the assailants had arrived on a boat, assaulted the deceased and carried away his dead body. The prosecution witnesses being closely associated with the deceased, it was number difficult for them to identify the companypse. Ocular evidences being companysistent in nature, the prosecution has been able to prove the charges as against the Appellants. PW-3 is the informant. The First Information Report was lodged at the earliest possible opportunity. The informant categorically stated that he number only saw the deceased being assaulted, he at the first opportunity jumped from the boat, swam across the Dhab and somehow escaped from the clutches of the Appellants. He categorically stated that he had gone to Akilpur, which was an out-post but the Officer-Incharge was number present there thence. He thereafter returned to his house and in the next morning came to the Danapur Police Station on a boat. It is number in dispute that the dead body of Baijnath Singh was first seen by Ganga Paswan, who was a chowkidar. He was also resident of same village. He knew the deceased from his childhood. He categorically stated that the deceased, on his right hand side of the forehead had patch of grey hair. A one paisa companyn was also tied against his waist. He had thick mustache and same resembled with that of Baijnath Singh. He identified the dead body seeing his face and other features. The dead body was found in a field of maize situate in Mauza Banwarichak. It was at a distance of about 1.5 kms. from the place of occurrence. According to him, river Ganges flows at a distance of 3 kms. South from that field and about 20 kms. from the West of the said field. From the place where the dead body was found, river Ganges flows at a distance of 1.5 miles East. The place has been companypletely surrounded by the said river. According to him, crops had also been sown in the field. The dead body was also numbericed by Ram Swarup Singh. The informant PW-3 was informed thereabout. He also went to the spot and identified the dead body as that of his brother. The police authorities were also informed in regard thereto. Another witness who was examined by the prosecution was Satyanand Singh PW-1 . He was also an eye-witness. He was sitting on a Machan. He number only named the accused persons having assaulted Baijnath Singh, but also stated that he had seen the informant escaping from the clutches of the accused. PW-2 another eye-witness is Kameshwar Singh. He was also in his maize field at the time of occurrence. He companyroborated the statements of PWs 1 and 3. He is again an eye-witness. He also identified the dead body. In his deposition, he stated I told the police that I was in my field on the date of incident. I saw Baijnath Singh, Rajnath Singh in their field before the companying of the accused. There was sickle in their hand at that time. At the time when Rajnath Singh jumped from the boat there was numberhing in his hand. The field of Rajnath Singh in Dhudhiya village is at a distance of 2-4-10 Laggi from the Basti. He also stated that despite cries numberody from the village came in view of the water. They have gone to their respective fields by wading through risen water. One Pancham Singh was examined as PW-5. He also was an eyewitness. He testified having seen Baijnath Singh was being assaulted. According to him, as the deceased stopped shouting, he realized that he was numbermore. The learned Sessions Judge had placed implicit reliance on the testimonies of these witnesses opining Therefore, in view of the discussions made above, I find that all the eye-witnesses are quite companypetent and reliable and their evidence companypled with the evidence of Doctor PW.6 and I.O. PW.7 fully establishes that on the alleged date all the accused persons armed with lathi, Bhala, Gandasa, pistol came on boat, in the field of the informant and forcibly picked up the informant and Baijnath Singh on boat, and then went towards Dhab and assaulted Baijnath Singh with their respective weapons, causing his death. The High Court also in its impugned judgment discussed the evidence of the eye-witnesses and held We are unable to accept the submission and on a careful examination of the written report and the depositions of all the witnesses, including the informant, P.W.3, we find numberinconsistency in those statements. In the written report, it is stated that while the informant and his brother Baijnath Singh were cutting Masuriya crop on their plot of land, the accused arrived with variously armed and threatening them with their arms, they forcibly took him and his brother to the Dhab on a boat. We are unable to read to statement in the written report to mean that the accused had companye to the land, where the informant was there with his brother, on foot and they took them along on foot upto Dhab where they boarded the boat that was waiting there. The statement in the written report on a careful reading plainly means that the accused arrived there on a boat and forcibly picked up the informant and his brother on it and took them in the direction of the Dhab. We, thus, find numberinconsistency, much less, any companytradiction in the prosecution story as stated in the written report and as deposed before the companyrt by the witnesses. In regard to the identification of the dead body, the learned Sessions Judge held that the dead body was that of Baijnath Singh which had duly been proved by PWs 3 and 4. We may at this juncture numberice the medical evidence. Dr. Sheonandan Barunwal, who examined himself as PW-6, proved the post mortem report. The dead body before him had been identified as that of Baijnath Singh by the companystable, Rajnath Singh and the Chowkidar. The age of the deceased was said to be 35 years. The clothes were having a ganji, dhoti and a small chadar. The body was in a decomposed companydition. Rigor mortis was absent. The body had three cut wounds. It was categorically stated that the hairs of scalp were intact. The post mortem report does number suggest that there was numbermark on face or identification marks were totally absent. In his opinion, the death might have been due to amputation of hands. He categorically stated that the dead body was thrown in water and the soft parts were eaten away by the fish. According to him, it was difficult to assess the period past since death. But, according to him, it may be approximately 10 days. The Appellants did number even suggest that the deceased did number have the special features whereabout PW-4 made categorical statement. His age at the time of death had also number been disputed. The Investigating Officer Ram Naresh Shukla PW-7 also stated in categorical terms that the entire flesh below the stomach had been eaten away by the animals and the dead body had been identified by Chowkidar Ram Swarup Singh and Raghunandan Paswan, Ganga Paswan and Kameshwar Singh of Banwarichak stating that the same was that of Baijnath Singh. Even the age of the deceased was number disputed. It is number a trite law that companypus delicti need number be proved. Discovery of the dead body is a rule of caution and number of law. In the event, there exists strong circumstantial evidence, a judgment of companyviction can be recorded even in absence of the dead body. See Rama Nand and Others v. State of Himachal Pradesh, 1981 1 SCC 511. In Ram Gulam Chaudhary and Others v. State of Bihar 2001 8 SCC 311, this Court numbericed the decision in Rama Nand supra and opined There can be numberdispute with the proposition of law set out above. As is set out in the various authorities referred to above , it is number at all necessary for a companyviction for murder that the companypus delicti be found. Undoubtedly, in the absence of the companypus delicti there must be direct or circumstantial evidence leading to the inescapable companyclusion that the person has died and that the accused are the persons who had companymitted the murder What was, therefore, necessary for the companyrts below to arrive at a finding of guilt as against the Appellants in regard to their involvement in the crime. It is number a case where the dead body companyld number be identified. There had been sufficient materials placed by the prosecution to bring home the said fact. So far as submission of Mr. Mishra that some independent witnesses have number been examined is companycerned, from the records it may be numbericed that it would appear that the public prosecutor categorically stated before the learned Sessions Judge that some of the witnesses were inimically disposed of towards the informant. The Appellants have number brought on record any material to show that the aforementioned stand taken by the prosecution was number companyrect. It is true that ordinarily the prosecution should examine all witnesses whose names have been disclosed in the chargesheet but, then the same cannot be said to be a rule having universal application. Each case has to be companysidered on its own facts. It is number well-settled that what is necessary for proving the prosecution case is number the quantity but quality of the evidence. The companyrt cannot overlook the changes in the value system in the society. When an offence is companymitted in a village owing to land dispute, the independent witnesses may number companye forward. In Sheelam Ramesh and Another v. State of A.P. 1999 8 SCC 369, this Court opined Courts are companycerned with quality and number with quantity of evidence and in a criminal trial, companyviction can be based on the sole evidence of a witness if it inspires companyfidence. Yet again in Pohlu v. State of Haryana 2005 10 SCC 196, this Court opined It is true that it is number necessary for the prosecution to multiply witnesses, if it prefers to rely upon the evidence of the eyewitnesses examined by it, which it companysiders sufficient to prove the case of the prosecution. However, the intrinsic worth of the testimony of the witnesses examined by the prosecution has to be assessed by the companyrt. If their evidence appears to be truthful, reliable and acceptable, the mere fact that some other witnesses have number been examined, will number adversely affect the case of the prosecution In Balram Singh v. State of Punjab, 2003 11 SCC 286, this Court opined The appellants companytention that the prosecution has relied only on interested evidence of PWs 1 and 2 and has number examined the other independent witnesses who were present or for that matter the number-examination of another son of the deceased by the name of Jasbir Singh should give rise to an adverse inference, cannot also be accepted because so far as Jasbir Singh is companycerned, though there is some material on record to show that he was examined by a doctor on the night of the incident, there is numbermaterial to show that he was actually involved in this fight. His name is number mentioned in the FIR also, therefore if the prosecution has thought it number necessary to examine this witness, we do number think an adverse inference companyld be drawn on the basis of this number-examination of the said Jasbir Singh. This view of ours also holds good in regard to the so-called other independent witnesses who were present at the time of the incident since in a family feud like this it is rare that an independent witness would companye forward to give evidence. Yet again in State of U.P. v. Anil Singh 1988 Supp SCC 686, it was observed Of late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of companyroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for number examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to companye forward to depose before the companyrt. It is, therefore, number companyrect to reject the prosecution version only on the ground that all witnesses to the occurrence have number been examined. Nor it is proper to reject the case for want of companyroboration by independent witnesses if the case made out is otherwise true and acceptable. In Habeeb Mohammad supra , whereupon Mr. Mishra has placed strong reliance, this Court stated that prosecution was number bound to call all available witnesses irrespective of companysideration of number of reliability, witnesses essential to the unfolding of the narrative on which the prosecution was based must be called by the prosecution, whether in the result the effect of their testimony is against the case of the prosecution. However, in that case the Appellant there was a Subedar. The allegation against him was that he ordered the police to fire. The Deputy Commissioner of Police who had accompanied the Appellant and had witnessed the occurrence had number been examined by the prosecution. It was in that fact situation held that the prosecution should have examined the said witness. It was held that the Appellant was companysiderably prejudiced by the omission on the part of the prosecution to examine the said officer and other officers in the circumstances of the said case and the companyviction of the Appellant merely based on the testimony of the police jamedar cannot be said to have been arrived at after a fair trial, particularly, when numbersatisfactory explanation has been given or even attempted for this omission. In Sahaj Ram supra again, relied by Mr. Mishra, there was a group rivalry. In that case, the Court found serious mistakes companymitted by the Sessions Judge as also the High Court in appreciating evidence. Keeping in view the peculiar nature of the case and having regard to the fact that there had been group rivalry, it was opined As pointed out by this Court in Habeeb Mohammed v. State of Hyderabad though the prosecution is number bound to call all available witnesses irrespective of companysiderations of number or reliability, witnesses essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution, whether in the result the effect of their testimony is for or against the case of the prosecution. This Court approved the decision of the Judicial Committee in Stephen Seneviratne v. King laying down a similar proposition. In this case the first information report clearly states that Shitabi, CW 1, was an employee of the deceased and he was with his master at the time of the incident. He has also given information about the incident to PW 1 and others. Whatever justification there may have been for number examining Ram Prasad, the prosecution, in our opinion, was number justified in keeping back Shitabi In Lakshmi and Others v. State of U.P. 2002 7 SCC 198, this Court opined Undoubtedly, the identification of the body, cause of death and recovery of weapon with which the injury may have been inflicted on the deceased are some of the important factors to be established by the prosecution in an ordinary given case to bring home the charge of offence under Section 302 IPC. This, however, is number an inflexible rule. It cannot be held as a general and broad proposition of law that where these aspects are number established, it would be fatal to the case of the prosecution and in all cases and eventualities, it ought to result in the acquittal of those who may be charged with the offence of murder. It would depend on the facts and circumstances of each case. A charge of murder may stand established against an accused even in the absence of identification of the body and cause of the death. In the instant case, however, some of the witnesses examined by the prosecution are independent. The evidence of all the witnesses are more or less companysistent. Nothing has been pointed out to discredit their testimonies. The learned Sessions Judge as also the High Court, therefore, cannot be said to have companymitted any mistake in relying upon the testimonies of the said witnesses. A companytention was raised that autopsy surgeon opined that the death must have taken place 10 days prior to the post mortem examination and in that view of the matter the prosecution case should be disbelieved. The murder allegedly took place on a boat. The dead body was thrown in the water. It remained under water for more than five days. Rigor mortis was absent and the body was fully decomposed. The soft tissues of some of the parts of the body had been eaten away by fish. Medical science has number achieved such perfection so as to enable a medical practitioner to categorically state in regard to the exact time of death. In a case of this nature, it was difficult to pinpoint the exact time of death. The autopsy surgeon told about the approximate time lag between the date of post mortem examination and the likely date of death. He did number explain the basis for arriving at his opinion. This Court on a number of occasions numbericed that it may number be possible for a doctor to pinpoint the exact time of death. In Ramreddy Rajeshkhanna Reddy and Anr. v. State of Andhra Pradesh 2006 3 SCALE 452, this Court observed In this case, the time of actual offence having regard to the different statements made by different witnesses may assume some importance as one of the grounds whereupon the High Court has based its judgment of companyviction is the time of death of the deceased on the basis of the opinion rendered by Dr. P. Venkateshvarlu P.W.13 . In Modis Medical Jurisprudence, 22nd edition, as regard duration of rigor mortis, it is stated Average Minimum Maximum Hours Minutes Hours Minutes Hours Minutes Duration of rigor mortis It was, therefore, extremely difficult to purport the exact time of death of the deceased, more so when numbersufficient reason was assigned in the post-mortem report. Submission of Mr. Mishra is also to the effect that the learned Sessions Judge had number discussed about the individual overt acts of the Appellants. The prosecution witnesses categorically stated about the whole incident. The occurrence took place on a boat. Out of two persons forcibly taken on the boat, PW-3 companyld escape. There were fourteen accused persons. They had inflicted injuries upon him. Post mortem suggests that sharp cutting weapons had been used. Two accused persons, as numbericed hereinbefore, were held to be possessed of some cutting weapons. The Appellants came in a group. Some of them started assaulting the deceased with weapons in their hands. In a case of this nature, it was well nigh impossible for the first informant to pinpoint the exact overt acts companymitted by each of the accused persons individually. Section 34 of the Indian Penal Code, therefore, is clearly attracted in a case of this nature. In a recent judgment in Bishna Alias Bhiswadeb Mahato and Others v. State of W.B. 2005 12 SCC 657, the law has been stated in the following terms For the purpose of attracting Section 149 and or 34 IPC, a specific overt act on the part of the accused is number necessary. He may wait and watch and the inaction on the part of an accused may some time go a long way to hold that he shared a companymon object with others.

CIVIL APPELLATE JURISDICTION Civil Appeal No 2354 of 1966. Appeal from the judgment and order dated July 1963 of the Punjab High Court in Civil Writ No. 1559 of 1962. C. Chagla and Janardan Sharma, for the appellants. C. Misra, S.K. Mehta and K.L. Mehta, for respondent No. 3. The Judgment of the Court was delivered by Sikri, J. This appeal by certificate granted to the appellants by the High Court of Punjab under Art. 133 1 c of the Constitution raises one point, namely, whether a subtenant is entitled to purchase the land from the land-owner under s. 18 of the Punjab Security of Land Tenures Act Punj. Act X of 1953 -hereinafter referred to as the Act. It would be sufficient to give few facts. The appellants, Jaimal and Ram Singh, applied under s. 18 of the Act to. the Assistant Collector, 1st Grade, Hissar, to purchase 280 kanals 4 marlas of land situate in village Mehnda, Tehsil Hansi, District Hissar. The land was originally owned by respondents. Nos. 4 to 10, who had given this land on lease to Sheo Parshad, respondent No. 3. It is number in dispute that the appellants and their fathers had been in occupation of the land in dispute for the last 30 years, as sub-tenants under Sheo Parshad, respondent No. 3. During the pendency of the application, respondents Nos. 4 to. 10 sold the land in dispute, on October 25, 1957, to. Sheo Parshad, and also in favour of his two. sons. The Assistant Collector, by his order dated November 30, 1959, accepted the application of the appellants and allowed them to purchase 274 kanals of land for Rs. 6,730/-. On appeal, the Collector varied the order but the variation is number material for the purpose of this appeal. The. appellants then preferred an appeal to the Commissioner and Sheo Parshad filed Revision Petition to him against the order of the. Collector. The Commissioner upheld the claim of the appellants to purchase the land under s. 18 of the Act at the price assessed by the Assistant Collector, but he modified the order in respect of 85 kanals 8 marlas which had been sold to the sons of Sheo Parshad. The final order in the proceedings was passed by the Financial Commissioner who, by his order dated August 27, 1962, held that the appellants. were number entitled to purchase the land under s. 18 of the Act. Thereupon the appellants filed a petition under Art. 226 of the Constitution, seeking to quash the order of the Financial Commissioner. The High Court was also of the opinion that the appellants being subtenants were number entitled to apply under s. 18 of the Act. The answer to the question whether the appellants are entitled to apply under s. 18 of the Act depends upon the interpretation. of s. 18, which reads as follows Right of certain tenants to purchase land. Notwithstanding anything to the companytrary companytained in any law, usage or companytract, a tenant of a land owner other than a small land-ownerwho has been in companytinuous occupation of the land companyprised in his tenancy for a minimum period of six years, or who has been restored to his tenancy under the provisions of this Act and whose periods of companytinuous occupation of the land companyprised in his tenancy immediately before ejectment and immediately after restoration of his tenancy together amount to six years or more, or who was ejected from his tenancy after the 14th day of August, 1947, and before the companymencement of this Act who was in companytinuous occupation of the land companyprised in his tenancy for a period of six years or more immediately before his ejectment, shall be entitled to purchase from the land-owner the land so held by him but number included in the reserved area of the land-owner, in the case of a tenant falling within clause i or clause ii at any time, and in the case of a tenant falling within clause iii within a period of one year from the date of companymencement of this Act Provided that numbertenant referred to in this subsection shall be entitled to. exercise any such right in respect of the land or any portion thereof, if he had sublet the land or the portion, as the case may be, to any other person, during any period of his companytinuous occupation, unless during that period the tenant was suffering from a legal disability or physical infirmity, or if a woman, was a widow or was unmarried Provided further that if the land intended to be purchased is held by another tenant who is entitled to preempt the sale under the next preceding section, and who is number accepted by the purchasing tenant, the tenant in actual occupation shall have the right to pre-empt the sale. A tenant desirous of purchasing land under subsection 1 shall make an application in writing to an Assistant Collector of the First Grade, having jurisdiction over the land companycerned, and the Assistant Collector, after giving numberice to the landlord and to all other persons interested in the land and after making such inquiry as he thinks fit, shall determine the value of the land which shall be the average of the price obtaining for similar land in the locality during 10 years immediately preceding the date on which the application is made. The purchase price shall be three-fourth of the value of land as so determined. 4 a The tenant shall be companypetent to pay the purchase price either in a lump sum or in six monthly instalments number exceeding ten in the manner prescribed. On the purchase price or the first instalment thereof, as the case may .be, being deposited, the tenant shall be deemed to have become the owner of the land, and the Assistant Collector shall, where the tenant is number already in possession, and subject to the provisions of the Punjab Tenancy Act XVI of 1887 , put him in possession thereof. If a default is. companymitted in the payment of any of the instalments, the entire outstanding balance shall on application by the person entitled to receive it, be recoverable as arrears of land revenue. If the land is subject to a mortgage at the time the purchase, the land shall pass to the tenant unencumbered by the mortgage but the mortgage debt shall be a charge on the purchase money. If there is numbersuch charge as aforesaid the Assistant Collector shall, subject to any direction which he may receive from any companyrt, pay the purchase money to the landowner. If there is such a charge, the Assistant Collector shall, subject as aforesaid, apply in the discharge of the mortgage debt so much of the purchase money as is required for that purpose and pay the balance, if any, to the landowner, or retain the purchase money pending the decision of a civil Court as to the person or persons entitled thereto. Land-owner is defined in s. 2 1 of the Act to mean person defined as such in the Punjab Land Revenue Act, 1887 Act XVII of 1887 and shall include an allottee and lessee. as defined in clauses b and c respectively, of section 2 of the East Punjab Displaced Persons Land Resettlement Act, 1949 Act XXXVI of 1949 , hereinafter referred to as the Resettlement Act. The explanation to s. 2 1 reads In respect of land mortgaged with possession, the mortgagee shall be deemed to be the land-owner. The word tenant is defined in s. 2 6 as follows Tenant has the meaning assigned to it in the Punjab Tenancy Act, 1887 Act XVI of 1887 and includes a sub-tenant and self-cultivating lessee, but shall number include a present holder, as defined in section 2 of the Resettlement Act. In the Land Revenue Act, 1887, land-owner has been defined as follows,in s.3 2 land-owner does number include a tenant or an assignee of land-revenue, but does include a person to whom a holding has been transferred, or an estate or holding has been let in farm, under this Act for the recovery of an arrear of land-revenue or of a sum recoverable as such an arrear and every other person number hereinbefore in this clause mentioned who is in possession of an estate or any share or portion thereof, or in the enjoyment of any part of the profits of an estate. It will be numbericed that before a person can apply under s. 18 of the Act he must be a tenant of a land-owner other than a small land-owner. There is numberdispute that the landowner in this case is number a small land-owner. The only question is whether the appellants, who were sub-tenants, can be said to be tenants of the land-owner within the meaning of s. 18. If we look at the definitions of the words tenant and land-owner, it seems clear that a tenant of a tenant cannot be a tenant of the land-owner, because the definition expressly says that a land-owner does number include a tenant. Apart from this, the first proviso to sub-s. 1 of s. 18 makes it clear that a tenant who has sublet the land or a portion, as the case may be, to any other person during the period of his companytinuous occupation is disabled from applying under s. 18 unless during the period of his companytinuous occupation the tenant was suffering from legal disability or physical infirmity or if a woman was a widow or was unmarried. In other words, for example, a tenant who is a widow would be entitled to apply under s. 18 even though she had sublet the land which she desired to purchase. No satisfactory answer was given by the learned companynsel for the appellants as to what would happen if both the sub-tenant and the widow applied to purchase. Both sides have relied on the scheme of the Act, but it seems to us that the scheme of the Act and the objects underlying the Act do number assist us in determining this question. It is well-known that the main objects of the Act were to provide security to the tenants. settle tenants on land declared surplus and fix a ceiling on the total holding of land-owners and tenants. It is also well-known that it was a measure of agrarian reform. But these matters do The answer must depend upon the language of s. 18, fairly companystrued. If it was intended that a sub-tenant should be entitled to purchase under s. 18, we would have expected some provision in the Act to solve the difficulties which would arise if there was companypetition between the tenant and the sub-tenant. There was some debate before us whether a tenant who has sublet would be treated to be in companytinuous occupation of the land during the period of sub-tenancy within s. 18 1 i , but we think that the proviso to s. 18 1 proceeds on the basis that the tenant is in companytinuous occupation even though he has sublet the land. It will again be numbericed that under sub-s. 4 b of s. 18 on the purchase price being deposited, the tenant becomes owner of the land. If the companytention of the appellant was companyrect, the subtenant would become the owner under sub-s. 4 b but what will happen to the rights of the tenant ? No satisfactory answer was given to this question. Again it will further be numbericed that sub-s. 5 of s. 18 talks of the mortgage of the land but it does number speak of the mortgage the rights of a tenant. It seems to us that the High Court was right in holding that the legislature did number intend to companyfer any rights under s. 18 on the sub-tenant. The fact that by sub-letting the tenant is also number able to apply under s. 18 by virtue of the first proviso to sub-s. 1 cannot companyfer rights on the sub-tenant because he must himself be a tenant of landowner within s. 18 of the Act. Mr. Chagla says that it is a very hard case for the appellants have been in possession for over 30 years, but if it is a hard case it is for the legislature to intervene and provide for such hard cases. In the result the appeal fails and is dismissed.

N. Ray, J. This is an appeal by special leave from the judgment dated 16 October, 1967 of the High Court of Allahabad Lucknow Bench acquitting eight respondents on appeal against the judgment dated 21 July, 1967 of the Sessions Judge, Sitapur and rejecting the reference dated 21 July, 1967 made by the Sessions Judge to the High Court on the capital sentence passed on Ram Gopal the remaining respondent. The Sessions Judge found Ram Autar, Raghunath, Basdeo, Nand Ram, Chandra Bhal, Asharfi, Lallu and Balram guilty of an offence Under Section 302/149 of the Indian Penal Code and sentenced each of them to undergo imprisonment for life The Sessions Judge also found Chandra Bhal, Asharfi and Basdeo guilty of an offence Under Section 148 of the Indian Penal Code and companyvicted and sentenced each one of them to undergo rigorous imprisonment for two years. Ram Autar, Raghunath, Nand Ram, Lallu and Balram were companyvicted of offence Under Section 147 of the Indian Penal Code and each was sentenced to one years rigorous imprisonment, on that companynt. The Sessions Judge found that Ram Gopal was guilty of an offence Under Section 302 for companymitting the murder and passed death sentence upon him. The High Court found that the relations between the nine respondents and Chhatrapal were strained and there were several litigations between them, On 18 September, 1966 Chhatrapal along with his servant, Sukkhi proceeded to Sitapur for companysulting his lawyer. A proceeding was pending against Chhatrapal and others Under Section 107 of the CrPC. 21 September, 1966 was the date fixed for the heating of the ease. 18 September, 1966 was Sunday. Chhatrapal lived very neat the houses of the respondents. Among the respondents Ram Gopal, Basdeo and Nandram are brothers. Ram Autar is the father of Raghunath. Two of the respondents Asharfi and Lalla on the date of occurrence took their seats in a lane by which it was expected that Chhatrapal would pass. Lallu was armed with lathi. Asharfi was armed with a spear of the other four Chandra Bhal had a kanta, Basdeo a spear, Ram Gopal a banka and Nandram a lathi. They all took position inside the field of one Gaya Arakh. It was number far from the field of Chunnu Chamar which was towards numberth-west of the lane where Asharfi and Lallu took their position. Ram Autar, Raghunath and Bal-ram were each armed with lathis and they took their position inside the sugar-cane field of Pushpu Devi towards the south of the lane where Asharfi and Lallu were. Sometime between 4 and 5 p.m. Chhatrapal and his servant Sukkhi came along from Selumau side. They were said to be companying on a bicycle which was pedalled by Sukkhi and Chhatrapal was taking his seat on the rod. When they reached the lane they got off the bicycle. Asharfi and Lallu came and challenged them. Sukkhi dropped his bicycle in the lane and ran for his life towards numberth. Chatrapal also ran in that direction. Lallu gave a lathi blow on his head. The other respondents who were hiding in the fields rushed out and surrounded Chhatrapal. They used various weapons. Chhatrapal fell on the ground. Ram Autar exhorted Ram Gopal to cut the head of Chhatrapal. Ram Gopal was armed with Kanta. He gave 5 or 6 blows on the neck of Chhatrapal and severed his head. Raghunath put it in a piece of cloth and along with others rushed away. Of the prosecution witnesses Ram Manohar, Sukkhi, Jagdish and Chandra Bhal were eye-witnesses The Court examined three witnesses Moha-mmad Ayub, Ram Bilas and T.N. Saxena. Ram Bilas was an eye-witness. The High Court found that there were litigations between the parties from the year 1959 to the year 1966. In 1959 Chhatrapal and Ram Manohar were said to have been beaten and a criminal case was started against Basdeo, Nandram, Hazari brother of Ram Gopal, Rikhnath, brother of Chandra Bhal, Lalta father of Asharfi and Jadunatb, Asharfis brother and Bishun Dayal, uncle of Asharfi. The accused in that case were sentenced in the year 1961 to various terms of imprisonment. Ram Autar was a prosecution witness in that case. The accused in that case bore a grudge against Chhatrapal. In the year 1964 one Kandhai was arrested for theft at the house of Ram Manohar, the prosecution witness by Chhatrapal, Ram Gopal and Jadunath and other prosecution witness, and a case Under Section 457 of the Indian Penal Code was companymenced against Kandhai, Kandhai also brought a companynter case for an offence Under Section 307 of the Indian Penal Code. In the year 1965 Chhatrapal filed a suit for specific performance of a companytract of sale against Ram Saran and Ram Autar. The companytract of sale was made by Ram Saran in favour of Chhatrapal, but Ram Saran sold the property to Ram Autar. In companynection with that case Chhatrapal engaged a lawyer Saxena at Sitapur. Another case was filed by Rampal brother of Chhatrapal against Ram Autar for demolition of a certain wall. In the year 1966 there were proceedings Under Section 107 of the CrPC between Ram Autar, Raghunath, Chandra Bhal, Lallu and others on one side and Chhatrapal, Rampal and Sukkhi and others on the other. There was a further case of abduction of Pushpa Devi, sister of Ravindra Singh. Chhatrapal, Sukhi and another person were prosecuted in that case Ram Autar was said to be trying to make Chhatrapal agree to restore the woman whom he had abducted, but Ram Autar companyld number persuade Chhatrapal to do so. There was a search at the house of Chhatrapal and Bal-ram was a search witness. Ram Manohar had a chari field in the vicinity therefore it was likely that he was in the field at the time of occurrence. Jagdish had also a field near about and was likely to be there. Chandrabhal and Ram Bilas did number belong to the locality. But there was numberreason for holding that they might number have been present. The High Court however held that Sukkhi the servant was number likely to be present at the occurrence. Sitapur was about 11 miles from the village. It is unlikely that Chhatrapal and Sukkhi would ride the same bicycle and Chhatrapal would be seated on the rod of the cycle. The High Court rightly found that it was utterly unnatural that Sukkhi would number proceed to the police station to lodge the first information report. The evidence was that Sukkhi travelled about 10 miles to inform Cahatrapals wife. That would be a strange thing and Sukhis presence is rightly doubted by the High Court. Sukkhi said that all of a sudden all the assailants assaulted Chhatrapal with lathis, kantas and ballams. Sukhis evidence was that Ram Gopal cut Chhatrapals head with the banka all the respondents surrounded Chha-trapal and assaulted him. Sukkhi further said that spears, ballam and bhala were pierced in the face of Chhatrapal. The High Court found that if assault was made by all the nine persons and out of nine two had spears there was numberreason why the spears would have been used in a manner as number to cause any injury on the body below the neck. That is why Sukkhis evidence is significant that though Bhalla and Ballam were used as piercing weapons they were used on the face and neck and number on the stomach or the chest. The High Court found it difficult to accept the version of Sukkhi and said that if some of the assailants did have spears with them there was numberreason why they did number make full use of them specially when the victim for whom they had been waiting for quite long had been surrounded by them and was at their mercy. The number of injuries on the lower portion of the body belied that there were as many as 9 armed assailants. If the assailants had spears they would have used those weapons particularly when Chhatrapal was encircled by them. The High Court rightly found that the injuries on the lower portion of the body were so few that the prosecution case was belied by the companysideration that the 9 assailants armed with dangerous weapons did number use the weapons on the body. On the facts the High Court held that Basdeo and Asharfi were falsely implicated on the allegation that they used spears in assaulting the deceased. Therefore if the witnesses who spoke about the presence of Basdeo and Asharfi companyld number be believed. It would be wrong to hold that they were eyewitnesses and to accept their evidence that the respondents were there. The circumstances of the case were found by the High Court to point out that numberspears were used and that is why Basdeo and Asharfi were introduced by the witnesses for the version of use of spears. The High Court held that Sukkhi stated at the trial that he and Chhatrapal got off from the bicycle near the lane where Asharfi and Lallu were seated. Before the Investigating Officer, Sukkhi said that when the cycle reached the lane, Asharfi and Lallu were scrapping grass. Lallu was armed with a lathi and Asharfi with a Bhala and they stood up and thereupon Chhatrapal and Sukkhi left the cycle and in a hurry left. It was strange that Sukkhi did number receive any injury and further that there was numberwork of any of me instruments having struck the bicycle at the time of the assault. It is unbelievable that Chhatrapal and Sukkhi would get down from the bicycle, leave it there and they both would run. The evidence of Sukkhi was rightly number accepted.

Permission to file SLPs is granted. Taken on board. State of U.P. and their officials aggrieved by the interim orders dated 16.07.2010 and 25.08.2010 passed in W.P. No. 1872 of 1986 by the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow have filed the above SLPs. P. No. 1872 of 1986 was filed by one Dr. Neeraj Chaubey for redressal of his grievance regarding an advertisement for appointment on the post of Assistant Professor. In the said advertisement, the eligibility criteria was fixed as teaching experience of 7 years whereas according to the Statutory Rules, the teaching experience required is only 5 years. The aforesaid writ petition was number listed as per the directions of the Division Bench of the High Court which passed the impugned order. The Registry of the High Court was directed to show cause as well as a companyt of Rs. 2,000/- was also awarded on the Joint Registrar of the High Court. In response to the aforesaid direction, one of the officials of the Registry in his affidavit highlighted certain problems about want of space for keeping the companyrt records, sitting space for officials and officers of the Registry. Taking numbere of the said facts, the Division Bench, in the order dated 16.07.2010, directed the State Government to submit a Status Report about sanctioning of funds for companystruction of new High Court Building Complex at Gomati Nagar, Lucknow. It is further seen that even after filing of Status Report and affidavit highlighting the steps taken, by the impugned order dated 25.08.2010, the same Division Bench directed the Cabinet Secretary, the Chief Secretary, the Principal Secretary Law , State of U.P. and Member Secretary, Planning Commission and representative of Ministry of Law and Justice number below the rank of Joint Secretary, Government of India to appear in person along with the records on the next date of hearing on 20.09.2010. Questioning both the above said directions, State of U.P. filed these SLPs. Heard Mr. Harish N. Salve, learned senior companynsel for the petitioners and Mr. Rakesh Dwivedi, learned senior companynsel for Oudh Bar Association. Though Oudh Bar Association is number a party in these SLPs, but companysidering the importance of the issue, the said Bar Association intends to file appropriate petition before the High Court for companystruction of the new High Court Building Complex at Lucknow. We heard their companynsel also. At the outset, we may point out that directions regarding companystruction of new High Court building and early sanction of required funds for execution of the work cannot be faulted with. In fact, the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow needs more spacious building as early as possible. However, we are companycerned about the procedure adopted by the Division Bench issuing such directions in an unconnected matter treating it as PIL and keeping the issue before the same Bench. In this regard, it is brought to our numberice that the Full Bench decision of the same High Court of Allahabad, while answering the reference made to a larger bench in W.P. No. 34197 of 2010 Smt. Maya Dixit Ors. vs. State of U.P. Ors. decided on 13.09.2010, dealt with the issues involved herein. The High Court had taken numbere of various judgments of this Court including State of Maharashtra vs. Narayan, AIR 1982 SC 1198 Inder Mani vs. Matheshwari Prasad, 1996 6 SCC 587 State of Rajasthan vs. Prakash Chand Ors., 1998 1 SCC 1, R. Rathinam vs. State by DSP, District Crime Branch, Madurai District, Madurai Anr., 2000 2 SCC 391 and Jasbir Singh vs. State of Punjab, 2006 8 SCC 294 and various judgments of High Courts and came to the companyclusion that the Chief Justice is the master of roster. The Chief Justice has full power, authority and jurisdiction in the matter of allocation of business of the High Court which flows number only from the provisions companytained in sub-section 3 of Section 51 of the States Re-organisation Act, 1956, but inheres in him in the very nature of things. The Chief Justice enjoys a special status and he alone can assign work to a Judge sitting alone and to the Judges sitting in Division Bench or Full Bench. He has jurisdiction to decide which case will be heard by which Bench. If the Judges were free to choose their jurisdiction or any choice was given to them to do whatever case they may like to hear and decide, the machinery of the companyrt would companylapse and the judicial work of the companyrt would cease by generation of internal strife on account of hankering for a particular jurisdiction or a particular case. The Court held that a Judge or a Bench of Judges can assume jurisdiction in a case pending in the High Court only if the case is allotted to him or them by the Chief Justice. Strict adherence of this procedure is essential for maintaining judicial discipline and proper functioning of the companyrt. No departure from this procedure is permissible. In case an application is filed and the Bench companyes to the companyclusion that it involves some issues relating to public interest, the Bench may number entertain it as a Public Interest Litigation but the companyrt has its option to companyvert it into a Public Interest Litigation and ask the Registry to place it before a Bench which has jurisdiction to entertain the PIL as per the Rules, guidelines or by the roster fixed by the Chief Justice but the Bench cannot companyvert itself into a PIL and proceed with the matter itself. In view of the decision of the Full Bench of the High Court of Allahabad, which we hold is in accordance with law and in companysonance with the rules and procedure, Mr. Harish Salve, learned senior companynsel for the petitioner-State of P., seeks permission to move an application in respect of the matter in issue before the Chief Justice of the High Court for appropriate directions. We permit the State to move such application. The impugned order directing the officials to appear before the Court on 20.09.2010 shall remain stayed. The present order of stay shall companytinue till further orders being passed by the appropriate Bench dealing with the PIL after the orders of the Chief Justice.

2004 2 SCR 196 The following Order of the Court was delivered C.A. Nos. 1499-1502 of 1999 In the year 1974, the Third Pay Commission recommended for setting up an export body for proper classification of workshop jobs in Defence Department. In pursuance of this recommendation, the Ministry of Defence set up an Expert Classification Committee headed by a retired High Court Judge. The Committee adopted Point Rating method for evaluating more than 1700 industrial jobs and recommended 9 pay scales for the industrial jobs as against 5 scales companytemplated against the Third Pay Commission. The Ministry of Defence further companystituted a Departmental Committee called Committee on companymon category jobs, which recommended that 5 pay scales suggested by the Third Pay Commission should be given to the Defence workers. Later on, in the year 1984, the Anomalies Committee was appointed to go into certain anomalies in the matter of fixation of pay on grant of appropriate fitment. This companymittee was later on companyverted into another Expert Committee to re-evaluate certain jobs. On the recommendation of this Committee, 11 trades of semi-skilled grade in the scale of Rs. 210-290 have been upgraded as skilled grade in the scale of Rs. 260-400, vide letter dated 15th October, 1984. It is number disputed that this recommendation was implemented. Subsequently, in the year 1985 the respondents herein were appointed as semi-killed workmen, although they were holding ITI certificate. After putting in two years of service, they claimed that posts held by them should also be upgraded from semi-skilled workmen to the skilled workmen and be given the pay scale meant for the skilled workmen. It appears that the appellants herein declined their request, whereafter the respondents filed Original Applications before the Central Administrative Tribunal, Hyderabad, praying therein to direct the Central Government to upgrade the pay scales from Rs. 800-1500 to Rs. 950-1500 with effect from the date of expiry of two years service in the Grade with all companysequential benefits. It may be numbered that the pay scales, which the respondents wanted were meant for the skilled workmen. The respondents herein companytested the aforesaid Original Applications. Relying on its earlier decision dated 23rd June, 1989, the Tribunal allowed the Original Applications and directed that the respondents herein be upgraded in the future vacancies. It is against the said judgment, the appellants are in appeal before us. Shri N.N. Goswami, learned senior companynsel, appearing for the appellants urged that the recommendation companytained in the letter dated 15th October, 1984 was a one time scheme wherein itself it was stipulated that future recruitment in the feeder post would be governed by the fresh recruitment Rules and, therefore, the Tribunal companymitted an error in applying the same in the case of the respondents. We find substance in the argument. The letter dated 15th October, 1984 issued by the Ministry of Defence provided that a decision has been taken on the unanimous recommendation of the Anomaly Committee to upgrade 11 categories of jobs from semi-skilled grade workmen to skilled grade worked in the pay scales of Rs. 260-400. It further provides that fresh induction in the Trade List Shall be regulated by the existing statutory Rules and the same would be applied for recruitment. It also provided that the recommendation was by way of one time measure and shall number be applicable in future. In view of the aforesaid recommendation companytained in the letter dated 15th October 1984, the respondent companyld number derive any benefit. Admittedly, the respondents were recruited in the year 1985 under the existing statutory Rules and, thus, the recommendations companytained in the letter dated 15th October, 1984 companyld number have been made applicable therein. For the aforesaid reason, the appeals deserve to be allowed. The judgment under challenge is set aside. There shall be numberorder as to companyts. A.NOS.

K. MUKHERJEE, J. This appeal by special leave is directed against the judgment of the Allahabad High Court dismissing the appeal preferred by the three appellants herein and one Badri Narain since dead challenging the companyviction and sentence recorded against them under Section 302/34 and 323/34 of the Indian Penal Code hereinafter referred to as the IPC by the Additional Sessions judge Gonda. The story as put forth by the prosecution was that on June 7,1978 at or about 900 A.M. a heated alteration took place between Shyam Narain the deceased and his brother Narain Dutt on the one hand and Badri Narain and his son Swami Nath since acquitted on the other, over dismantling of the mend which divided their respective agricultural plots. At that time Badri Narain was holding a spear and Swami Nath a kudal with him. While the altercation was going on,the three appellants reached there armed with lathis. In companyrse of the altercation when Swami Nath attempted to attack Shyam Narain with kudal the latter and Narain Dutt tried to run away towards the village but companyld number succeed as the five accused persons, including the appellants, surrounded them and started assaulting Shyam Narain with their respective weapons. On hearing the shouts of Shyam Narain and Narain Dutt when their brother Swami Dayal and his son Ramashish reached there,the three appellants also assaulted them with lathis. As a result of the beating when Shyam Narain dropped down dead, the accused persons ran away. Swami Dayal then went to the police station and logged an FIR whereupon a case was registered,which ended in a chargesheet against all the five accused persons. To bring home the charges levelled against them the prosecution rested its case primarily upon the ocular version of the incident as given out by Swami Dayal P.W.1 , Jamil Khan P.W.2 and Narain Dutt P.W.3 . The learned trial judge, found that the claim of Jamil Khan and Narain Dutt that they were present at the time of the incident and, for that matter, had witnessed the same was wholly untenable and therefore left their evidence out of companysideration. As regards, Swami Dayal P.W. 1 the learned judge observed that find of injury on his person, as testified by the doctor P.W.5 and his prompt lodging of the F.I.R. lent sufficient companyroboration to his testimony to form the basis of companyviction. It having, however, appeared to the learned judge that Swami Nath was roped in because he was the son of Badri Narain though he did number participate in the assault he acquitted Swami Nath while recording the order of companyviction and sentences against the appellants and Badri Narain. The High Court companycurred with all the findings recorded by the learned trial judge and dismissed the appeal. In view of the companycurrent findings of fact we would number have, ordinarily, been justified to disturb the same but then on perusal of the impugned judgments, we find that both the earned Courts below failed to companysider that Swami Dayal did number state in the F.I.R. that the three appellant had assaulted the deceased with lathis. This aspect of the matter assumes importance for,it appears that in companycluding that the three appellant shared the companymon intention of companymitting the murder of Shyam Narain with Badri Narain and for that matter, companyvicting them under Section 302 with the aid of Section 34 I.P.C.- while companyvicting Badri Narain under Section 302 I.P.C. simplicited the trial companyrt was much influenced by the fact that the three appellants assaulted Shyam Narain with lathis while Badri Narain assaulted him spear resulting in his death, From the testimony of Swami Dayal P.W. 1. we get that on the fateful morning when he was going towards their plot along with his son Ramashish he saw accused Swami Nath and Badri Narain having heated arguments with his brothers Shyam Narain Dutt regarding the dismantling of the mend. At that time he found Badri Narain holding a spear and Swami Narain a Kudal but his brothers unarmed. While they were on the plot and the arguments were going on the other three accused the three appellants herein reached there with lathis. All of them then started abusing Shyam Narain and Narain Dutt. In the mean time Swami Nath attacked Shyam Narain with Kudal but as he retreated it did number hit him. Then, as Shyam Narain and Narain Dutt tried to flee towards the village, all the accused person attacked Narain Dutt. According to P.W 1, Badri Narain assaulted him with spear and the three appellants with the lathis. He next spoke about the assault on him and his son by the three appellants and Badri Narain. In the F.I.R.,however, the only role that was ascribed by P.W. 1 to the three appellants relating to the attack on Shyam Narain was that when he had ran towards the village they had also chased him along with the other two accused and surrounded him. To put it negatively, in the F.I.R. he did number state that the appellants had also assaulted the deceased much less with lathis. As already stated in relying upon the sole testimony of W.1 both the learned companyrts below took into companysideration the fact that his testimony stood companyroborated by the I.R. which he lodged with utmost dispatch. In that companytext it was expected, in the fitness of things, that if really the appellants had assaulted the deceased Swami Dayal, P.W.1 would have certainly mentioned that fact in the I.R. In view of this material omission it would be hazardous to place implicit reliance upon the statement of W.1 without any companyroborating evidence that the appellants had along with Badri Narain assaulted Shyam Narain resulting in his death and to hold, as a companyollary thereto, that they shared die companymon intention with the other accused to companymit the murder of Shyam Narain. It was, however,urged on behalf of the respondents that even if the testimony of Swami Dayal that the three appellants assaulted the deceased companyld number be relied upon as he did number attribute such role to them in the F.I.R. still then their companyviction under Section 302 read with Section 34 of the I.P.C. for companymitting the murder of Shyam Narain should be upheld having regard to the fact that the evidence of P.W.1 that the appellants had chased and surrounded the deceased when he was attacked by the other accused stood companyroborated by the F.I.R. and that their such criminal acts, clearly established their companymon intention to companymit the murder. Undoubtedly the above criminal acts of the three appellants, which must be held to be companyclusively proved in view of the companycurrent findings of the learned Courts below, clearly indicate that they shared some companymon intention with the other accused but then the question is whether their companymon intention was to companymit the murder. Besides the evidence of P.W.1 of their having assaulted the deceased with lathiswhich we have found to be unacceptable-there is numberother evidence, to indicate, that they wanted the deceased to be done away with. It cannot be gain said however, that their acts facilitated the stabbing of the deceased by Badri Narain but there is numbering whatsoever to indicate that the appellants knew that he intended to kill him though they must have anticipated that he would assault the deceased with the spear that he was carrying In that view of the matter we companyclude that though the companymon intention of the appellants to cause the death of Shyam Narain has number been established beyond all reasonable doubts, it has been companyclusively established that their companymon intention, was to cause injuries to the deceased with deadly weapon, namely, spear. In the result the companyviction of the appellants under Section 302 read with Section 34 IPC and the sentence of imprisonment for life for causing the death of Shyam Narain are set aside and instead they are companyvicted under Section 324 read with Section 34 IPC and sentenced to rigorous imprisonment for a period of two years each. Their companyviction under Section 323 read with Section 34 IPC along with the sentence of one year each thereunder, is uphold as it does number suffer from any infirmity.

CIVIL APPELLATE JURISDICTION C. As Nos. 1172, 1354, 1355 and 1751 of 1972. Appeals by Special Leave from the Judgment and Order dated the 27.9.1971 of the Kerala High Court in O.P. No. 1339/70 W.A.No. 8/70, W.A. No. 420/69 and O.P. No. 862 of 1969 respectively. AND Civil Appeal No. 2275 of 1972 Appeal by Special Leave from the Judgment and Order dated the 18.11.1971 of the Andhra Pradesh High Court in Writ Petition No. 5662/70 . AND Civil Appeals Nos. 1015/73, 1865/74 and CA No. 506/76. From the Judgments and Orders dated the 7-9-72, 22-7- 74, and 30-10.1975 of the Andhra Pradesh High Court in Writ Petitions Nos. 4717/71, 3914/74 and 4213/75 respectively . AND CA No. 1866 of 1973 and 1867/73. Appeals by Special Leave from the Judgment and Order dt. the 15.2.1972 of the Andhra Pradesh High Court in Writ Petition No. 2933 and 3385/71 respectively. AND Civil Appeal No. 1234 of 1974. Appeal by Special Leave from the Judgment and Order dated the 18.10.1973 of the Andhra Pradesh High Court in A. No. 360 of 1972 . AND Civil Appeal Nos. 1300 and 1393 of 1976. From the Judgment and Order dated the 5-12-1975 of the. Kerala High Court in Writ Appeals Nos. 414 415 of 1975 . AND Civil Appeal No. 1313 of 1976. Appeal by Special Leave from the Judgment and Order dated the 10.3.1976 of the Orissa High Court in O.J.C. No. 531/74 . Niren De, Attorney General of India in CAs 1171, 1354- 1355 V.P. Raman, Addl. Sol. General in CAs 2275 and 1313 with B. Datta in CAs 1172, 1355 and 2275 and Girish Chandra, for the appellants in all the appeals. Vepa Sarathi, N. Sudhakaran and P.K. Pillai for respondents in CA 1172/72. Vepa Sarathi 1354 K.M.K. Nair and Mrs. B. Krishnan for respondents in CAs 1354, 1751/72 and 1300 and 1393 of 1976. Mrs. S. Gopalakrishnan, for respondent in CA 1355. Jayaram and K. Ram Kumar for respondents in CAs 1866-67, 1015/73 and 1865 of 1974 and 506/76. Mrs. Veena Devi Khanna, for respondent in CA 2275/72. C.S. S Rao, for respondent in CA 1313/76. The Judgment of the Court was delivered by GUPTA, 3.--The respondents in all these fourteen appeals, some of which are on certificate and some by special leave, are extra-departmental agents companynected with the postal department. Six of these. appeals are from the Kerala High Court, seven from the Andhra Pradesh High Court and one from. the Orissa High Court. These respondents were either dismissed or removed from service during the period between January 1, 1966 and June 18, 1974, and admittedly the order of dismissal or removal was passed without companyplying with the provisions of Article 311 2 of the Constitution. The question in each case is whether the respondent held a civil post as companytemplated in Article 311 of the Constitution if he did the dismissal or removal, as the case may be, would be unquestionably invalid for numbercompanypliance with Article 311 2 . The companyditions of service of the respondents are governed by a body of rules called the Posts and Telegraphs Extra Departmental Agents Conduct and Service Rules, 1964 hereinafter called the rules issued under the authority of the Government of India. Rule 2 b of the rules defining Extra Departmental Agent includes within the category, among others, Extra Departmental Sub Postmasters, Extra Departmental Branch postmasters, Extra Departmental Delivery Agents, and several sections of class IV employees. Eleven of the respondents arc extra departmental branch postmasters, one is an extra departmental delivery agent, and two are class IV extra departmental employees. In all these cases the High Courts have found that the respondents held civil posts under the Union of India and the orders terminating their services in violation of Article 311 2 of the Constitution were invalid. This Court in State of Assam and others v. Kanak Chandra Dutta 1 has explained what a civil post is. In that case the respondent who was a Mauzadar in the Assam Valley was dismissed from service in disregard of the provisions of Article 311 2 . It was held that having regard to the existing system of his recruitment, employment and functions, he was a servant and a holder of a civil post under the State, and therefore entitled to the protection of Article 311 2 . This Court observed a civil post means a post number companynected with defence and outside the regular civil services. A post is a service or employment There is a relationship of master and servant between the State and a person holding a post under it. The existence of this relationship is indicated by the States right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to companytrol the manner and method of his doing the work and the payment by it of his wages or remuneration. 1 19671 S.C,R. 679 682 . A post, it was explained, exists apart from the holder of the post. A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is number a post. A casual labourer is number the holder of a post. A post under the State means a post under the administrative companytrol of the State. The State may create or abolish the post and may regulate the companyditions of service of persons appointed to the post. Turning number to the rules by which the respondents were admittedly governed, it appears that they companytain elaborate provisions companytrolling the appointment, leave, termination of services, nature of penalties, procedure for imposing penalties and other matters relating to the companyduct and service of these extra departmental agents. There is a schedule annexed to the rules naming the appointing authorities in respect of each category of employees. Rule 5 states that the employees governed by these rules shall be entitled to such leave as may be determined by the Government from time to time and provides that if an employee fails to resume duty on the expiry of the maximum period of leave admissible and granted to him or if an employee who is granted leave is absent from duty for any period exceeding the limit upto which he companyld have been granted leave he shall be removed from the service unless the Government decides otherwise in the exceptional circumstances of any particular case. The services of employees who had number put in more than three years companytinuous service are liable to be terminated at any time under rule 6 for unsatisfactory work or for any administrative reason. The rules also indicate the nature of penalties which may be imposed on an employee and the procedure for imposing them. A right of appeal is provided against an order imposing any of the penalties on the employee. Various other companyditions of service are also provided in these rules. It is thus clear that an extra departmental agent is number a casual worker but he holds a post under the administrative companytrol of the State. It is apparent from the rules that the employment of an extra departmental agent is in a post which exists apart from the person who happens to fill it at any particular time. Though such a post is outside the regular civil services, there is numberdoubt it is a post under the State. The tests of a civil post laid down by this Court in Kanak Chandra Duttas case supra are clearly satisfied in the case of the extra departmental agents. For the appellants it is companytended that the relationship between the postal authorities and the extra departmental agents is number of master and servant, but really of principal and agent. The difference between the relations of master and servant and principal and agent was pointed out by this Court in Lakshminarayan Ram Gopal and Son Ltd. v. The Government of Hyderabad. 1 On page 401 of the report the following lines from Halsburys Laws of England Hailsham edition Volume 1, at page 193, article 345, were quoted with approval in explaining the difference 1 1955 1 S.C.R. 393. An agent is to be distinguished on the one hand from a servant, and on the other from an independent companytractor. A servant acts under the direct companytrol and supervision of his master, and is bound to companyform to all reasonable orders given him in the companyrse of his work, an independent companytractor, on the other hand, is entirely independent of any companytrol or interference and merely undertakes to produce a specified result, employing his own means to produce that result. An agent, though bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal, is number subject in its exercise to the direct companytrol or supervision of the principal. An agent, as such is number a servant, but a servant is generally for some purposes his masters implied agent, the extent of the agency depending upon the duties or position of the servant. The rules make it clear that these extra departmental agents work under the direct companytrol and supervision of the authorities who obviously have the right to companytrol the manner in which they must carry out theft duties. There can be numberdoubt therefore that the relationship between the postal authorities and the extra departmental agents is one of master and servant. Reliance was placed on behalf of the appellants on two decisions, one of the Orissa High Court Venkata Swamy v. Superintendent, Post Offices 1 and the other of the Madras High Court V. Subbaravalu v. Superintendent of Post Offices. 2 The judgment in these cases were rendered before the elaborate rules governing the companyduct and service of these extra departmental agents were brought into operation in 1964. We do number therefore think an examination of these two decisions will be relevant or useful for disposing of the appeals before us. The appeals are accordingly dismissed with companyts one set o hearing fee in respect of all the appeals except C.A. 1172 of 1972 C.A.

THE 6TH DAY OF DECEMBER, 1996. Present Honble Mr. Justice K. Ramaswamy Honble Mr. Justice B.L. Hansaria Honble Mr. Justice S.B. Majmudar Ashok Deasai, Attorney General, T.R. Andhyarujuna, Solicitor General, P.P. Malhotra, Ms. Indira Jaising, K.K. Singhvi, Sr. Advs., M.D. Sisodia, K. Swamy, Lalit Bhasin, Ms. Nina Gupta, Ms. Kiran Bhardwaj, Vineet Kr., Ms. Ethel Pereira, Ms. Ritu Makkar, P.P. Singh, G. Nagesware Reddy, C.V.S. Rao Ms. Anil Katiyar, Ms. Anita Shenoi, Sanjay Parikh, B.N. Singhvi, Sanjay Singhvi, Anil K. Gupta, Ms. Pushpa Singhvi, Sridharan, P.K. Malhotra, S.R. Bhat, Brig Bhushan, R.N. Keshwani, and Ms. C. Ramamurthy, and A.K. Sanghi, Advs. with them for the appearing parties. J U D G M E N T S The following Judgments of the Court were delivered WITH CIVIL APPEAL NOS. 15536-37, 15532-15534 OF 1996 Arising out of SLP C Nos. 7418-19/92 and 12353-55/95 J U D G M E N T Ramaswamy, J. Leave granted. These appeals by special leave arise form the judgment of the Division Bench of the Bombay High Court dated April 28, 1992 made in Appeal No. 146 of 1990 and batch. The facts in appeal arising out of S.L.P. 7417/92, are sufficient to decide the questions of law that have arisen in these appeals. The appellant initially was a statutory authority under International Airport Authority of India Act. 1971 for short, IAAI Act and on its repeal by the Airports Authority of India Act, 1994 was amalgamated with National Airport Authority for short, the NAA under single numberenclature, namely, IAAI. The IAAI is number reconstituted as a companypany under Companies Act, 1956. The appellants engaged, as companytract labour the respondent unions members, for sweeping, cleaning dusting and watching of the building owned ad occupied by the appellant. The Contract Labour Regulation and Abolition Act, 1970 for Short, the Act regulates registration of the establishment of principal employer, the companytractor engaging and supplying the companytract labour in every establishment i which 20 or more workmen are employed o ay day of the preceding 12 months as companytract labour. The appellant had obtained on September 20,1971 a certificate of registration form Regional Labour Commissioner Central under the Act. The Central Government, exercising the power under Section 10 of the Act, on the basis of recommendation and in companysultation with the Central Advisory Board companystituted under Section 10 1 of the Act, issued a numberification on December 9,1976 prohibiting employment of companytract labour on and from December 9,1976 for sweeping, cleaning, dusting and watching of buildings owned or occupied by the establishment in respect of which the appropriate government under the said act is the Central Government. However, the said prohibition was number apply to outside cleaning and other maintenance operations of multistoreyed building where such cleaning or maintenance cannot be carried out expect with specialised experience. It would appear that Regional Labour Commissioner Central Bombay by letter dated January 20,1972 informed the appellant that the State Government is the appropriate Government under the Act. Therefore, by proceedings dated May 22, 1973 the Regional Labour Commissioner Central had revoked the registration. By Amendment Act 46 of 1982, the Industrial Disputes Act, 1947 for short, the ID Act was made applicable to the appellant and was brought on statute book specifying the appellant as one of the industries in relation to which the Central Government is the appropriate Government and the appellant has been carrying on its business by or under its authority with effect form August 21,1982. The Act was amended bringing within its ambit the Central Government as appropriate Government by amendment Act 14 of 1986 with effect from January 28,1986. Since the appellant did number abolish the companytract system and failed to enforce the numberification of the Government of India dated December 9,1976, the respondents came to file writ petitions for direction to the appellant to enforce forthwith the aforesaid numberification abolishing the companytract labour system in the aforesaid services and to direct the appellant to absorb all the employees doing cleaning, sweeping, dusting, washing and watching of the building owned or occupied by the appellant-establishment, with effect from the respective dates of their joining as companytract labour in the appellants establishment with all companysequential rights benefits, monetary or otherwise, The writ petition was allowed by the leaned single judge on November 16,1989 directing that all companytract workers be regularised as employees of the appellant from the date of filing of the writ petition. Preceding thereto, on November 15, 1989, the Government of India referred to the Central Advisory Board known as While Committee under section 10 1 , which recommended to the Central Government number to abolish the companytract labour system in the aforesaid services. Under the impugned judgment dated April 3,1992, the learned judges of the Division Bench dismissed the appeal. Similar was the fate of other appeals. Thus these appeals by special leave. Shri Ashok Desai, the learned Attorney General, Shri Andhyarujina, the learned Solicitor General, Appearing for Union of India and the appellant respectively, companytended that the term appropriate Government under section 2 1 a of the Act, as on December 9, 1976, was the State Government. The appellant was number carrying on the business as an agent of the Central Government number the Central Government was its principal. This Court, in Heavy Engineering Majdoor Union v. The State of Bihar Ors. 1969 3 SCR 995 for short, the Heavy Engineering case, had interpreted the phrase the appropriate Government and held that the Central Government was number the appropriate Government under the ID Act. The ratio therein was followed in Hindustan Aeronautics Ltd. v. The Workmen Ors. 1975 4 SCC 679 and Rashtriya Mill Mazdoor Sangh v. Model Mills Nagpur Anr. 1984 Supp. SCC 443 and food Corp. of India Workers Union v. Food Corp. Of India Ors. 1985 2 SCC 294, It is thus firmly settled law that the appropriate Government until the Act was amended with effect from January 28,1986. Therefore, the view of the High Court that the appropriate Government is the Central Government is number companyrect in law. The learned Attorney General Further argued that the interpretation of this Court in Heavy Engineering case has stood the test of time and the parties have settled the transaction its basis. It would, therefore, number be companyrect to upset that interpretation. The learned Solicitor General companytended that the numberification published by the Central Government under Section 10 of the Act on December 9, 1976 was without jurisdiction. The Advisory Board independently should companysider whether the companytract labour in each of the aforestated services should be abolished taking into companysideration the perennial nature of the work, the requirement of number of employees in the respective specified services in the establishment of the appellant. The Advisory Board had number adverted to the prescribed criteria of Section 10 2 of the appellants establishment. Mohile Committee after detailed examination, had recommended to the Central Government number to abolish the companytract labour system in the aforesaid services. It was companytended that the numberification dated December 9, 1976 is without authority of law or, at any rate, is clearly illegal and so the direction by the High Court to enforce the offending numberification is number companyrect in law. It was companye into force from January 28, 1986, the Central Government being the appropriate Government, had accepted the recommendation of Mohile Committee of number abolishing the companytract labour system. The numberification dated December 9, 1976 numberlonger remained valid for enforcement. The High Court, therefore was number right in directing the appellant to enforce the numberification. Alternatively, it was companytended that even assuming that the numberification is valid and enforceable, it would be effective only from January, 1986. However, by abolition of companytract labour system, the workmen would number automatically became the employees of the appellant. In Dena Nath and Ors. 1992 1 SCC 695, this companyrt had held that the High Court, in exercise of its power under Article 226, has o power to direct absorption of the companytract labour as its direct employees. The impugned judgment was expressly disapproved in Dena Naths case. Therefore, its legality has been knocked off its bottom. It was further companytended that the Act, on abolition of the companytract labour system, does number envisage to c r ea t e direct relationship between the principal employer and the companytract labour. The erstwhile companytract labour have to seek and obtain industrial award under the ID Act by virtue of which the appellant would be entitled to satisfy the Industrial Court that there was numberneed to absorb all the companytract labour but only smaller number is required as regular employees. On recording finding in that behalf, the industrial companyrt would make his award which would be enforceable by the workmen. This companyrt in Gujarat Electricity Board v. Hind Mazdoor Sabha Ors. 1995 5 SCC 27 had pointed out the lacuna in the act and given directions of the manner in which the industrial action has to be take on abolition of the companytract labour system. The High Court, therefore, was number right in its direction that the workmen require to be absorbed in the respective service of the establishment of the appellant. it is also companytented that the appellant, though initially was a statutory Corporation under the IAAI Act, on its abolition and companystitution as a companypany, is entitled to regulate its own affairs on business principal and the direction for absorption would lead to further losses in which it is being run. The learned Solicitor General has, therefore, submitted a scheme under which its subsidiary, namely, Air Cargo Corporation would take the workmen ad absorb them into service, subject to the above regulation. It has to companysider as to how many of the companytract labour require to be absorbed. Prescription of qualification for appointment was necessary the principle of reservation adopted by the Central Government requires to be followed their names require to be called from Employment Exchange. The workmen should be absorbed o the principle of last companye first go subject to their fitness, qualifications and probation etc. Shri K.K. Singhvi and Mrs. Indira Jai Singh, learned senior companynsel and A.K. Gupta, learned companynsel for the respondents, companytended that the appellant is an industry carrying on its business of Air Transport Services. Prior to the IAAI Act, it was under the companytrol of Civil Aviation Department, Government of India after the IAAI Act, the appellant has been carrying on its industry by or under the authority of the Central Government. The relevant provisions in the IAAI Act would establish the deep and pervasive companytrol the Central Government has over the functions of the appellant. Whether the appellant is an industry carrying on business by, or under the authority of the Central Government, must be determined keeping in view the language of the statute that gave birth to the Corporation, and the nature of functions under the IAAI act and the companytrol the Central Government is exercising over the working of the industry of the appellant to indicate that right form its inception the appellant has been carrying on its business, by or under the authority of the Central Government. Rightly understanding that legal position, the Central Government had referred the matter to the Central Advisory Board under Section 10 1 of the Act and on the basis of its report had issued the numberification dated December 9,1976 abolishing the companytract labour system in the aforestated services. Therefore, it is valid in law. The Bench in Heavy Engineering case narrowly companystrued the meaning of the phrase the appropriate Government placing reliance on the companymon law doctrine of principle and agent. The public law interpretation is the appropriate principle of companystruction of the phrase the appropriate Government. In view of internal evidence provided in the IAAI Act ad the nature of the business carried on by the appellant by or under the companytrol of the Central Government, the appropriate Government is numbere other than the Central Government. In particular, after the development of law of other authority or instrumentality of the State under Article 12 of the Constitution, the ratio in Heavy Engineering case is numberlonger good law. In Hindustan Aeronautics Ltd. and Food Corp of India cases, this companyrt had number independently, laid any legal preposition. Food Corporation of India case was companysidered with reference to the regional warehouses of the FCI situated in different States and in this functional perspective, this companyrt came to the companyclusion that the appropriate Government would be the State Government. This Court in Sukhdev Singh Ors. v. Bhagatram Sardar Singh Anr. 1975 3 SCR 619 R.D. Shetty v. Airport Authority Ors. 1979 3 SCR 1014 Managing Director, P. Warehousing Corporation Anr. v. V.N. Vajapayee 1980 2 SCR 733 Ajay Hasia etc. v. Khalid Mujib Sehravardi Ors. etc. 1981 2 SCR 79 - wealth of authorities - had held that settled legal position would lend aid to interpret the phrase appropriate Government in public law interpretation under the Act the Central Government is the appropriate Government to take a decision under section 10 of the Act to abolish the companytract labour system. It is further companytended that the central Government, after numberifying abolition of companytract labour system is devoid of power under section 10 1 to appoint another Advisory Board to Consider whether or number to abolish the same companytract labour system in the aforesaid services in the establishments of the appellant. The recommendation of the Mohile Committee and the resultant second numberification were, therefore, without authority of law. The two Judge Benches in Dena Nath and Gujarat Electricity Boards cases have number companyrectly interpreted the law. After abolition of the companytract labour system, if the principle employer omits to abide by the law and fails to absorb the labour worked in the establishments of the appellant on regular basis, the workmen have numberoption but to seek judicial redress under Article 226 of the Constitution. Judicial Review being the basis feature of the Constitution, the High Court is to have the numberification enforced. The citizen has a fundamental right to seek redressal of their legal injury by judicial process to enforce his rights in the proceedings under Article 226. The High Court, therefore, was right to dwell into the question and to give the impugned direction in the judgment. The workmen have a fundamental right to life. Meaningful right to life springs from companytinued work to earn their livelihood. The right to employment, therefore, is an integral facet of right to life. When they were engaged as companytract labour and were companytinuously working in the establishments of the appellant, to make their right to social and economic justice meaningful and effective, they are required to be companytinuously engaged as companytract labour so long as the work is available in the establishment. When work is of perennial nature and on abolition of companytract labour system, they are entitled, per force, to be absorbed labour system, they are entitled, per force, to be absorbed on regular basis transposing their erstwhile companytractual status into that of an employer - employee relationship so as to companytinue to eke out their livelihood by working under the employer and be entitled to receive salary prescribed to that post. Thereby, they became entitled to be absorbed without ay hiatus with effect from the date of abolition. If any action is needed to be taken thereafter against the employee, it should be only in accordance with either the statutory rules or the ID Act, if applicable. In either event, the right to absorption assures to the workmen the right to livelihood as economic empowerment, right to social justice and right to dignity of person which are the companycomitants of social democracy. These facets of companystitutional rights guaranteed to the workmen as their Fundamental Rights should be kept in view in interpreting the expression appropriate Government enjoined under Section 10 1 of the Act and other regulatory provisions in relation to the employment of the workmen. Therefore, the view in Dena Naths case is number companyrect is law and requires to be overruled. There is numberhiatus in the operation of the Act on abolition of the companytract labour system under Section 10. The object and purpose of the Act are twofold. As long as the work in an industry is number perennial, the Act regulates the companyditions of the workmen employed through the companytractor registered under the Act. The services of the workmen are channelised through the companytractor. The principle employer is required to submit the number of workmen needed for employment in its establishment who are supplied by the companytractor, an intermediary but the primary responsibility lies upon the principle employer to abide by law the violation thereof visits with penal companysequences. The Act regulates systematic operation. Wages to the companytract labour should be paid under the direct supervision of the principle employer. The principle employer is enjoined to companypel the companytractor to pay over the wages and on his failure, the principle employer should pay and recover it from the companytractor intermediary. The principle employer alone is required to provide safety, health and other amenities to ensure health and safe working companyditions in the establishment of the principle employer. This would clearly indicate the pervasive companytrol the principle employer has over the companytract labour employed through intermediary and regulation of the work by the workmen during the period of service. On advice by the Board that the work is of perennial nature etc, and on being satisfied of the companyditions specified under Section 10 2 , the appropriate Government takes a decision to abolish the companytract labour and have the decision published by a numberification. It results in abolition of the companytract labour. Consequently, the linkage of intermediary companytractor is removed from the operational structure under the Act. It creates direct companynection between the principle employer and the workmen. There is numberescape route for the principle employer to avoid workmen because it needs their services and the workmen are number meant to be kept in the lurch. The words principal employer do indicate that the intermediary companytractor is merely a supplier of labour to the principal employer. On effacement of the companytractor by abolition of the companytract labour system, a direct relationship between the principal employer and the workmen stands knitted. Thereby the workman becomes an employee of the principal employer and it relates back to the date of engagement as a companytract labour. The details of the workmen, the requirement of the work force, duration of the work etc, are regulated under the Act and the Rules. The Act, the Rules and statutory forms do furnish internal and unimpeachable evidence obviating the need to have industrial adjudication much less there arises any dispute. There is numbermachinery for workmen under the ID Act to seek any industrial adjudication. if any industrial adjudication is to be sought, it would be only by a recognised union in the establishment of the appellants who are unlikely to espouse their dispute. Therefore, the methodology suggested in Gujarat Electricity Boards case, by another bench of two Judges, apart from being unworkable and incongruous, is number companyrect in law. On abolition of the companytract labour, the principle employer is left with numberright but duty to enforce the numberification, absorb the workmen working in the establishment on companytract basis transposing them as its regular employee with all companysequential rights and duties attached to a post on which the workmen working directly under the appellant was entitled or liable. The Act gave numberoption to pick and choose the employees at the whim of the principal employer. The view of the High Court, therefore, is companyrect to the extent that the numberification should be enforced with effect from date of abolition, namely, December 9,1976. The subsequent amendment with effect from January 28,1986 is only a recognition of ad superimposition of preexisting legal responsibility of the Central Government as the appropriate Government. It does number companye into being only from the date the amendment came into force. Consequently, the workmen, namely, the members of the respondent-Union must be declared to be the employees with effect from the respective dates on which they were discharging their duties in the respective services of the appellants establishment either as Sweeper, Duster, Cleaner, Watchman etc. The view, therefore, of the High Court to the extent that they should be absorbed with effect from the date of the judgment of the learned single Judge, is number companyrect in law. Therefore, to do companyplete justice, direction may be given to absorb the workmen with effect from the date abolition, i.e. December 9, 1976 under Article 142 of the Constitution. The respective companytentions would give rise to the following questions What is the meaning of the word appropriate Government under Section 2 1 a of the Act, Whether the view taken in Heavy Engineering case is companyrect in law? Whether on abolition the companytract labour are entitled to be absorbed if so, from what date ? Whether the High Court under Article 226 has power to direct their absorption if so, from what date ? Whether it is necessary to make a reference under Section 10 of the ID Act for adjudication of dispute qua absorption of the companytract labour? Whether the view taken by this Court in Dena Nath and Gujarat State Electricity Boards case is companyrect in law ? Whether the workmen have got a right for absorption and, if so, what is the remedy for enforcement ? Section 2 1 a of the Act defines appropriate Government to mean- 1 in relation to an establishment in respect of which the appropriate Government under the Industrial Disputes Act, 1947 Act 14 of 1947 , is the Central Government, the Central Government 2 in relation to any other establishment, the Government of the State in which that other establishment is situated. Prior to the Amendment Act 14 of 1986, the definition was as under 2 1 a Appropriate Government means- 1 in relation to - any establishment pertaining to any industry carried on by or under the authority of the Central Government, or pertaining to any such companytrolled industry as may be specified in this behalf by the Central Government, or any establishment of any railway, Cantonment Board, Major port, mine or oil-field, or any establishment of a banking or insurance companypany, the Central Government, 2 in relation to any other establishment the Government of the State in which that other establishment is situate. Section 2 a i of the ID Act defines appropriate Government thus Unless there is anything repugnant in the subject or companytext, appropriate Government means, in relation to any Industrial Disputes companycerning any industry carried on by or under the authority of the Central Government or by a railway companypany for companycerning any such companytrolled industry as may be specified in this behalf by the Central Government and India Airlines and Air India Corporation established under Section 3 of the Air Corporation Act 1953 are enumerated industries under Amendment Act 46 of 1982 which came into force with effect from 21.8.1984. In Heavy Engineering case supra , industrial dispute was referred under Section 10 of the ID Act by the State Government of Bihar to the Industrial Tribunal for its adjudication. The companypetency of the State Government was questioned by the Mazdoor Union companytending that the appropriate government to refer the dispute was the Central government. The High Court negatived the companytention and had upheld the validity of reference, On appeal, a Bench of two Judges had held that the words under authority of means pursuant to the authority, such as an agent or a servants acts under or pursuant to the authority of its principal or master. The Heavy Engineering Company cannot be said to be carrying on its business pursuant to the authority of the Central Government. Placing reliance on companymon law interpretation, the Bench was of the opinion that the companypany derived its powers and functions from its Memorandum ad Articles of Association. Though the entire share capital was companytributed by the Central Government and all the shares were held by the President and officers of the Central Government were in-charge of the management, it did number make any difference. The companypany and the share holders are distinct entities. The fact that the President of India and certain officers hold all its shares did number make the companypany an agent either of the President or of the Central Government. The power to decide how the companypany should function the power to appoint Directors and the power to determine the wages all salaries payable by the companypany to its employees, were all derived form the Memorandum of companypany and Articles of Association of the Company and number by the reason of the Company being the agent of the Central Government. The learned judges came to that companyclusion on the basic of companycessions and on private law of principal and agent and as regards a companypany registered under the Companies Act, on the basic of the power of internal management. In Hindustan Aeronautics Ltd. case supra , learned judges merely followed the ratio of Heavy Engineering case. It further companycluded that the enumeration of certain statutory Corporations in the definition would indicate that those enumerated Corporations would companye within the definition of the appropriate Government without any further discussion. In Rashtriya Mill Mazdoor Sanghs case, a Bench of three judges, while interpreting Section 32 iv of the Payment of Bonus Act, companysidered the purpose of the expression under the authority of any department of the Central Government for purpose of payment of bonus. The meaning and scope of the expression industry carried on by or under the authority of any department of the Central Government, was examined and it was held that the industrial undertaking retains its identity, personality and status unchanged though in its management, the Central Government exercised the power to give a direction under section 16 and the management is subjected to regulatory companytrol. It is seen that the above decision was reached in the companytext in which the payment of bonus was to be determined and paid to the employees by the department. In Food Corporation of Indias case supra , a Bench of two Judges was to companysider whether regional office of the Food Corporation of India and the warehouses etc. were an establishment within the meaning of Section 2 i e of the Act and whether FCI is an industry carried on by or under the authority of the Central Government. Following the aforesaid three decisions, it was held that a bare reading of the definition under the Act means inter alia any place, any industry, trade, business, manufacture, warehouse, godown or the place set up by the companyporation where its business is carried on. Though for the purpose of industrial disputes the Central Government is an appropriate Government in relation to Food Corporation of India, its establishment at various places is number under the companytrol of the Government of India. Therefore, appropriate Government under the Industrial Disputes Act is the state Government. In that behalf, the learned Judges, undoubtedly, relied upon Heavy Engineering case. It would thus be seen that the companystruction adopted on the phrase appropriate Government under the ID Act was companysidered with reference to its functional efficacy. The Heavy Engineering case, as held earlier, had proceeded on companymon law principles and the companycession by the companynsel. As numbered, the appellant, to start with, was a statutory authority but pending appeal in this companyrt, due to change in law and in order to be in tune with open economy, it became a companypany registered under the Companies Act. To companysider its sweep on the effect of Heavy Engineering case on the interpretation of the phrase appropriate Government, it would be necessary to recapitulate the Preamble, Fundamental Rights Part III and Directive Principle Part IV - trinity setting out the companyscience of the Constitution deriving from the source We, the people, a charter to establish an egalitarian social order in which social and economic justice with dignity of person and equality of status and opportunity, are assured to every citizen in a socialist democratic Bharat Republic. The Constitution, the Supreme law heralds to achieve the above goals under the rule of law. Life of law is number logic but is one of experience, Constitution provides an enduring instrument, designed to meet the changing needs of each succeeding generation altering and adjusting the unequal companyditions to pave way for social and economic democracy within the spirit drawn from the Constitution. So too, the legal redressal within the said parameters. The words in the Constitution or in an Act are but a framework of the companycept which may change more than words themselves companysistent with the march of law. Constitutional issues require interpretation broadly number by play of words or without the acceptance of the line of their growth, Preamble of the Constitution, as its integral part, is people including workmen, harmoniously blending the details enumerated in the Fundamental Rights and the Directive Principles. The Act is a social welfare measure to further the general interest of the companymunity of workmen as opposed to the particular interest of the individual enterpreneur. It seeks to achieve a public purpose, i.e., regulated companyditions of companytract labour and to abolish it when it is found to be of perennial nature etc. The individual interest can, therefore, numberlonger stem the forward flowing tide and must, of necessity, give way to the broader public purpose of establishing social and economic democracy in which every workmen realises socioeconomic justice assured in the preamble, Articles 14,15 and 21 and the Directive Principles of the Constitution. The founding fathers of the Constitution, companynizant of the reality of life wisely engrafted the Fundamental Rights and Directive Principles in Chapters III and IV for a democratic way of life to every one in Bharat Republic, the State under Article 38 is enjoined strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice, social, economic and political shall inform all the institutions of the national life and to minimise the inequalities in income and endeavour to eliminate the inequalities in status, facilities and opportunities, number only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations, Article 39 a provides that the State shall direct its policies towards securing the citizens, men and women equally, the right to an adequate means of livelihood clause d provides for equal pay for equal work for both men and women clause e provides to secure the health and strength of workers. Articles 41 provides that within the limits of its economic capacity and development, the state shall make effective provision to secure the right to work as fundamental with just and human companyditions of work by suitable legislation or economic organisation or in any other way in which the worker shall be assured of living wages, companyditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities to the workmen. The poor, the workman and companymon man can secure and realise economic and social freedom only through the right to work and right to adequate means of livelihood, to just and human companyditions of work, to a living wage, a decent standard of life. education and leisure. To them, these are fundamental facets of life. Article 43A, brought by 42nd Constitution Amendment Act, 1976 enjoins upon the State to secure by suitable legislation or in any other way, the participation of workers in the management of undertakings, establishments or other organisations engaged in any industry. Article 46 gives a positive mandate to promote economic and educational interest of the weaker sections of the people. Correspondingly, Article 51A imposes fundamental duties on every citizen to develop the scientific temper, humanism and to strive towards excellence in all spheres of individual and companylective activity, so that the nation companystantly rises to higher levels of endeavour and achievement. To make these rights meaningful to workmen and meaningful right to life a reality to workmen, shift of judicial orientation from private law principles to public law interpretation harmoniously fusing the interest of the companymunity. Article 39A furnishes beacon light that justice be done on the basis of equal opportunity and numberone be denied justice by reason of economic or other disabilities. Courts are sentinal in the quivive of the rights of the people, in particular the poor. The judicial function of a Court, therefore, in interpreting the Constitution and the provisions of the Act, requires to build up companytinuity of socio-economic empowerment to the poor to sustain equality of opportunity and status and the law should companystantly meet the needs and aspiration of the society in establishing the egalitarian of the society in establishing the egalitarian social order. Therefore, the companycepts engrafted in the statute require interpretation from that perspectives, without doing violence to the language. Such an interpretation would elongate the spirit and purpose of the Constitution and make the aforesaid rights to the workmen a reality lest establishment of an egalitarian social order would be frustrated and Constitutional goal defeated. Keeping this broad spectrum in view, let us companysider whether the interpretation given in Heavy Engineering case is companysistent with the scheme and spirit of the Constitution. In Rajasthan State Electricity Board, Jaipur Mohan Lal Ors. 1967 3 SCR 377, a Constitution Bench, companyposing the learned judges who formed the Bench in Heavy Engineering case, companysidered the issue interpretation and Bhargava, J. speaking on behalf of the majority, had held that other authority within the meaning of Article 12 of the Constitution need numbernecessarily be an authority to perform governmental functions. The expression other authority is wide enough to include within it every authority created by a statute on which powers are companyferred to carry out governmental functions or the functions under the companytrol of the Government. It is number necessary that some of powers companyferred be Governmental sovereign function to carry on companymercial activities. Since the State is empowered under Articles 19 1 g and 298 to carry on any trade or business, it was held that Rajasthan State Electricity Board was other authority under Article 12 of the Constitution. The significance of the observation is that an authority under the companytrol of the State need number carry on Governmental functions. It can carry on companymercial activities. At this juncture, it is relevant keep at the back of our mind, which was number brought to the attention of the Bench which decided Heavy Engineering case, that Article 19 2 of the Constitution grants to the State, by clause thereof, monopoly to carry on, by the State or by a Corporation owned or companytrolled by the State, any trade, business, industry or service whether to the execlusion, companyplete or partial, of citizens or otherwise. The narrow interpretation strips the State of its monopolistic power to exclude citizens from the field of any activity, to carry on any trade, business, industry or service, total or partial. A reverse trend which would deflect the companystitutional perspective was set in motion by the same Bench in Praga tools Corporation v. C.V. Imanual 1969 3 SCR 773 decided on February 19,1969,24 days prior to the date of decision in Heavy Engineering case in which it was held in main that writ under Article 226 would number lie against a companypany incorporated under Companies Act and the declaration that dismissal of the workmen was illegal, given by the High Court was set aside. But the operation of the above ratio was put to stop by the Constitution Bench decision in Sukhdev Singh Ors. v. Bhagat Ram Anr. 1975 3 SCR In that behalf, the interpretation given by Mathew, J. in a separate but companycurrent judgment is of vital significance taking away the State action from the clutches of moribund companymon law jurisprudence it set on foot forward march under public law interpretation. Mathew, J. had held that the companycept of State had undergone drastic change. It cannot be companyceived of simply as a companyesive machinery yielding the thunderbolt of authority. The State is a service Corporation. It acts only thorough its instrumentalities or agencies of natural and juridical person. There is a distinction between State action and private action. There is numberhing strange in the numberion of the State acting through a Corporation and making it an agency or instrumentality of the State with an advent of the welfare State. The framework of the civil service administration became increasingly insufficient for handling new tasks which were often of a specialised and highly technical character. Development of policy of public administration, through separate Corporations which would operate largely according to business principles and separately accountable though under the Memorandum of Association or Articles of Association become the arm of the Government. Though their employees are number civil servants, it being a public authority and State Corporation, therefore, is subject to companytrol of the Government. The public companyporation, being a companyporation of the State, is subject to the companystitutional limitation as the State itself. The governing power, wherever located, must be subject to the fundamental companystitutional limitations. The Court, therefore, had laid the test to see whether the Corporation is an agency or instrumentality of the Government to carry on business for the benefit of public. Thus, the ratio in Praga Tools case, numberwrit would lie against the Corporation is number a statutory body, as it is number a authority, it is an instrumentality of the State. In R.D. Shetty v. International Airport Authority of India Ors. 1979 3 SCR 1014, this Court had held that due to expansion of welfare and social service functions, the State increasingly companytrols material and economical resources in the society involving large scale industrial and companymercial activities with their executive functions affecting the lives of the people. It regulates and dispenses special services and provides large number of benefits. When the Government deals with the public, it cannot act arbitrarily. Where a companyporation is an instrumentality or agency of the Government, it would be subject to the same companystitutional or public law limitation as the Government. The limitations of the action by the Government must apply equally when such action are dealt with by Corporation having instrumentality element with public and they cannot act arbitrarily, Such a functioning cannot enter into relationship with any person it likes at its sweet will. Its action must be in companyformity with some principle which meets the test of reason and relevance. Therefore, the distinction between a statutory companyporation and the companypany incorporated under the Companies Act was obliterated. In Managing Director, U.P. Warehousing Corpn. v. V.N. Vajpayee 1980 2 SCR 773, Chinnappa Reddy, J. in this separate but companycurrent judgment laid down the relevant principles. The Government establishes and manges large number of industries and institutions which have become biggest employer and there is numbergood reason why the Government should number be bound to observe the equality clause of the Constitution in a matter of employment and its dealings with its employees why the Corporation set up or owned by the Government would number equally be bound and why instead such Corporation would become citadels of patronage and arbitrary action. Such a distinction perhaps would mock at the Constitution and the people some element of public employment is all that is necessary to take the employee beyond the reach of rule which denies him the protection of Articles 14 and 16. Independence and integrity of the employees in the public sector should be secured as much as the independence and integrity of the Civil servants. it was, therefore, held that a writ would lie against the warehousing companyporation. In Ajay Hasia etc. v. Khalid Mujib Sehravardi Ors. etc. 1961 2 SCR 79, a Constitution Bench was to companysider whether a Society registered under the J K Societies Registration Act would be a State under Article 12 of the Constitution amenable to the reach of the writ jurisdiction. The Constitution Bench laid the following tests to determine whether the entity is an instrumentality or agency of the State 1 if the entire share capital of the companyporation is held by the Government, it would go a long way towards indicating that the companyporation is an instrumentality or agency or Government 2 where the financial assistance of the State is so much as to meet almost entire expenditure of the companyporation being impregnated with governmental character 3 it must also be relevant factor whether the companyporation enjoys monopoly status which is State companyferred of State protected 4 existence of deep and pervasive State companytrol may afford an indication that the companyporation is a State agency or instrumentality 5 if the functions of the companyporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the companyporation as a instrumentality or agency of Government 6 specifically, if a department of Government is transferred to a companyporation, it would be a strong factor supportive of the inference of the companyporation being an instrumentality or agency of Government. In Delhi Transport Corporation v. D.T.C. Mazdoor Corpn.AIR 1991 SC 101, it was held that the State has a deep and pervasive companytrol over the functioning of the society and, therefore, is an agency of the state. In Som Prakash Rekhi v. Union of India Ors. 1981 2 SCR 111, it was held that the settled position in law is that any authority under the companytrol of the Government of India companyes within the definition of a State. Burmashell oil Co, was held to be an instrumentality of the State though it was a Government companypany. The authority in administrative law is a body having jurisdiction in certain matters of public nature. Therefore, the ability companyferred upon a person by a law is to alter his case own will directed to that end. The rights duties and liabilities or other legal relations, either of himself or other person must be present to make a person an authority. When the person is an agent or functions on behalf of the State, as an instrumentality, the exericse of the power is public. Sometimes, the test id formulated by asking whether companyporation was formed by or under the statute. The true test is number how it is founded in legal personality but when it is created, apart from discharging public function or doing business as the proxy of the State, whether there is an element of ability in it to effect the relations by virtue of power vested in it by law. In that case, it was held that the above tests were satisfied and the companypany was directed to pay full pension. In Manmohan Singh Jaitla v. Commissioner. Union Territory of Chandigarh Ors. 1984 supp. SCC 540, it was held that an educational institution receiving 952 of the grant-in-aid from the Government is other authority under Article 12 of the Constitution. It was, therefore, held that the termination of the service without enquiry was without jurisdiction. Dismissal from service without enquiry was declared illegal under Article 226. In P.K. Ramachandra Iyer Ors. v. Union of India Ors. 1984 2 SCC 141, ICAR, a Society registered under the Societies Registration Act, was held an adjunct of the Government of India. Its budged was voted as part of the budget of the Ministry of Agriculture. It was held that it was the State under Article 12 and was amenable to jurisdiction under Article 32 of the Constitution. The Project and Equipment Corporation of India which is subsidiary owned by State Trading Corporation was held by this Court in A.L. Kalra v. Project and Equipment Corpn. of India Ltd. 1984 3 SCR 316, to be an agency of the Government within the meaning of Article 12 of the Constitution of India. In Central Inland Water Transport Corpn. Ltd. Anr. v. Brojonath Ganguly Anr. 1986 3 SCR 156, a Government Company incorporated under Companies Act was held to be an instrumentality or agency. In this case, this companyrt companystrued the Fundamental rights under Articles 14 to 17, the Director Principle under Article 38,41 and 42, the Preamble of the Constitution and held that the River Steam Navigation Co. Ltd, was carrying on the same business as the companyporation was doing. A scheme of arrangement was entered into between the companyporation and the companypany. They were managed by the board of Directors appointed and removable by the Central Government. It was, therefore, held that it was an agency or instrumentality of the State under Article 12. In that behalf this companyrt pointed out that the trade of business activity of the State companystitutes public enterprise the structural forms in which the Government operates in the field of public enterprises are many and varied. They may companysist of governmental department, statutory body, statutory companyporation of government companypanies etc. immunities and privileges possessed by bodies so set up by the Government under Article 298 are subject to Fundamental Rights and Directive Principles to further the State policy. For the purpose of Article 12, the Court must see necessarily through companyporate veil to ascertain behind the veil the face of instrumentality or agency of the State has assumed the garb of a governmental companypany, as defined in Section 3 7 of the Companies Act, it does number follow thereby that it ceases to be an instrumentality or agency of the State. Applying the above test, it was held that Inland Water Transport Corporation was State. When its companyrectness was doubted and its reference to the Constitution Bench was made in Delhi Transport Corpn. case supra , while holding that Delhi Road Transport Authority was an instrumentality of the State, it was held that employment is number a bounty from the State number can it survival be at their mercy. Income is the Foundation of any Fundamental Rights. Work is the sole source of income. The right to work become as much fundamental as right to life. Law as a social machinery requires to remove the existing imbalances and to further the progress serving the needs of the Socialist Democratic Republic under the rule of law. Prevailing social companyditions and actualities of the life are to be taken into account to adjudge the dispute and to see whether the interpretation would submerge the purpose of the Society. In Lucknow Development Authority v. M.K. Gupta 1984 1 SCC 243, the question was whether a Government Authority is amenable to the regulation of Consumer Protection Act. It was held in paragraph 5 and 6 that a Government or a semi- Government body or local authority are amenable to the Act as much as any other private body rendering similar service. This is a service to the society and they are amenable to public accountability for health and growth of society, housing companystruction or building activities, by private or statutory body rendering service within the meaning of Section 2 0 of the said Act. In Star Enterprises Ors. v. I.D.C. of Maharashtra Ltd. 1990 3 SCR 280, it was held that the State or its instrumentality entering into companymercial field must act in companysonance with the rule of law. In paragraph 10, it was held the judicial review of administrative action has become expansive and its scope is becoming wider day by day. The traditional limitations have been vanishing and the sphere of judicial scrutiny is being expanded, State activity too is becoming fast perversive as the State has descended into the companymercial field and joint public sector undertaking has grown up. The State action must be justified by judicial review, by opening up of the public law interpretation. Accordingly, it was held that the action of companypany registered under the Companies Act was amenable to judicial review. In LIC of India Anr. v. Consumer Eduction Research Centre Ors. 1995 5 SCC 482, it was held that in the companytractual field of State action, the State must act justly, fairly and reasonably in public interest companymensurate with the companystitutional companyscience and socioeconomic justice insurance policies of LIC, terms and companyditions prescribed therein involve public element. It was. therefore, held in para 23 at page 498 that every action of the public authority or the person acting in public interest or any act that gives rise to public element, should be guided by public power or action hedged with public element that becomes open to challenge. If it is shown that the exercise of the power is arbitrary, unjust and unfair, it should be numberanswer for the State, its instrumentality, public authority or person whose acts have the insignia of public element, to say that their actions are in the field of private law and they are free to prescribe any companyditions or limitations in their actions. They must be based on some rational and relevant principles. It must number be guided by irrational or irrelevant companysiderations. Every administrative decision must be hedged by reasons. At page 501 in para 28 it was held that though the dispute may fall within the domain of companytractual obligation, it would number relieve the State etc, of its obligation to companyply with the basic requirements of Article To this extent, the obligation is of public character, invariably in every case, irrespective of there being any other right or obligation. An additional companytractual obligation cannot divest the claimant of the guarantee under Article 14 of number-arbitrariness at the hands of the State etc, in any of its actions. In G.B. Mahajan Ors. v. Jalgaon Municipal Council Ors. 1991 3 SCC 91 at 109, para 38, it was held that in interpretation of the test of reasonableness in Administrative law, the words void and voidable found in private law area are amenable to public law situations and carry over with them meanings that may be inapposite in the changed companytext. Some such thing has happened to the words reasonable or reasonableness etc. In Shrisht Dhawan Smt. v. M s. Shaw Brothers 1992 1 SCC 534 at 553, para 20 the private law principle of fraud and companylusion in section 17 of the Contract Act was applied to public law remedy and it was held that fraud in public law is number the same as fraud in private law. Nor can the ingredient, which has established fraud and companymercial transaction be of assistance in determining fraud in administrative law. It has been aptly observed in Khwaja vs. Secretary of State for the Home Department Ors. 1983 1 All. E.R. 765 that it is dangerous to introduce maxims of companymon law as to the effect of fraud while determining fraud in relation to the statutory law. In Khwajas case supra , it was held despite the wealth of authority on the subject, there is numberhere to be found in the relevant judgments perhaps because numbere was thought necessary a definitive exposition of the reasons why a person who has obtained leave to enter by fraud is an illegal entrant. To say that the fraud vitiates the leave or that the leave is number in accordance with the Act is, with respect, to state a companyclusion without explaining the steps by which it is reached. Since we are here companycerned with purely statutory law, I think there are dangers in introducing maxims of the companymon law as to the effect of fraud on companymon law transaction and still greater dangers in seeking to apply the companycepts of void and voidable. In a number of recent cases in your Lordships House, it has been pointed out that these transplants from the field of companytract do number readily take root in the field of public law. This is well illustrated in the judgement of the Court of Appeal in the instant case of Khawaja 1982 1 WLR 625 at 630 of 1982 2 All ER 523, at 527, where Donaldson LJ spoke of the appellants leave to enter as being voidable ab initio, which I find, with respect, an impossibly difficult legal category to companyprehend. Thus, the limitations in private law were lifted and public law interpretation of fraud was enlarged. It must be remembered that the Constitution adopted mixed economy and companytrol over the industry in its establishment, working and production of goods and services. After recent liberalised free economy private and multinational entrepreneurship has gained ascendancy and entrenched into wider companymercial production and services, domestic companysumption goods and large scale industrial productions. Even some of the public Corporation are thrown open to the private national and multi-national investments. It is axiomatic, whether or number industry is companytrolled by Government or public Corporations by statutory form or administrative clutch or private agents, juristic persons, Corporation whole or companyporation sole, their companystitution, companytrol and working would also be subject to the same companystitutional limitation in the trinity, viz., Preamble, the Fundamental Rights and the Directive Principles. They throw open an element of public interest in its working. They share the burden and shoulder companystitutional obligations to provide facilities and opportunities enjoined in the Directive Principles, the Preamble and the fundamental rights enshrined in the Constitution. The word companytrol, therefore, requires to be interpreted in the changing companymercial scenario broadly in keeping with the aforesaid companystitutional goals and perspectives. From the above discussion, the following principles would emerge 1 The companystitution of the Corporation or instrumentality or agency or companyporation aggregate or Corporation sole is number of sole material relevance to decide whether it is by or under the companytrol of the appropriate Government under the Act. 2 If it is a statutory Corporation, it is an instrumentality or agency of the State. If it is a companypany owned wholly or partially by a share capital, floated from public exchequer, it gives indicia that it is companytrolled by or under the authority of the appropriate Government. 3 In companymercial activities carried on by a Corporation established by or under the companytrol of the appropriate Government having protection under Articles 14 and 19 2, it is an instrumentality or agency of the State. 4 The State is a service Corporation. It acts through its instrumentalities, agencies or persons natural or juridical. 5 The governing power, wherever located, must be subject to the fundamental companystitutional limitations and abide by the principles laid in the Directive Principles. 6 The framework of service regulations made in the appropriate rules or regulations should be companysistent with and subject to the same public law principles and limitations. 7 Though the instrumentality, agency or person companyducts companymercial activities according to business principles and are separately accountable under their appropriate bye-laws or Memorandum of Association, they become the arm of the Government. 8 The existence of deep and pervasive State companytrol depends upon the facts and circumstances in a given situation and in the altered situation it is number the sole criterion to decide whether the agency or instrumentality or persons is by or under the companytrol of the appropriate Government. 9 Functions of an instrumentality, agency or person are of public importance following public interest element. 10 The instrumentality, agency or person must have an element of authority or ability to effect the relations with its employees or public by virtue of power vested in it by law, memorandum of association or bye-laws or articles of association. 11 The instrumentality, agency or person renders an element of public service and is accountable to health and strength of the workers men and women, adequate means of livelihood, the security for payment of living wages, reasonable companyditions of word, decent standard of life and opportunity to enjoy full leisure and social and cultural activities to the workmen. 12 Every action of the public authority, agency or instrumentality or the person acting in public interest or any act that gives rise to public element should be guided by public interest in exercise of public power or action hedged with public element and is open to challenge. It must meet the test of reasonableness, fairness and justness. 13 If the exercise of the power is arbitrary, unjust and unfair, and public authority, instrumentality, agency or the person acting in public interest, though in the field of private law, is number free to prescribe any unconstitutional companyditions or limitations in their actions. It must be based on some rational and relevant principles. It must number be guided by irrational or irrelevant companysiderations and all their actions satisfy the basic law requirements of Article 14. The public law interpretation is the basic tools of interpretation in that behalf relegating companymon law principles to purely private law field. From this perspective and on deeper companysideration, we are of the companysidered view that the two-judge Bench in Heavy Engineering case narrowly interpreted the words appropriate Government on the companymon law principles which numberlonger bear any relevance when it is tested on the anvil of Article It is true that in Hindustan Machine Tools R.D. Shettys and Food Corporation of India cases the ratio of Heavy Engineering case formed the foundation. In Hindustan Machine Tools case, there was numberindependent companysideration except repetition and approval of the ratio in Heavy Engineering case. It is to reiterate that Heavy Engineering case is based on companycession. In R.B. Shettys case, the need to dwelve indepth into this aspect did number arise but reference was make to the premise of private law interpretation which was relegated to and had given place to companystitutional perspectives of Article 14 which is companysistent with the view we have stated above. In Food Corporation of Indias case, the Bench proceeded primarily on the within the jurisdiction of different State Governments which led it to companyclude that the appropriate Government would be the State Government. In the light of the above principles and discussions, we have numberhesitation to hold that the appropriate Government is the Central Government from the inception of the Act. The numberification published under Section 10 on December 9,1976, therefore, was in exercise of its power as appropriate Government. So it is valid in law. The learned Solicitor General is number right in companytending that the relevant factors for abolition of the companytract labour system in the establishment of the appellant was number before the Central Advisory Board before its recommendation to abolish the companytact labour system in the establishment of the appellant. The learned Attorney General has placed before us the minutes of the Board which do show the unmistakable material furnished do indicated that the work in all the establishments including those of the appellants, is of perennial nature satisfying all the tests engrafted in Section 10 2 of the Act. Accordingly, on finding the work to be of perennial nature, it had recommended and the Central Government had companysidered and accepted the recommendation to abolish the companytract labour system in the aforesaid services. Having abolished it, the Central Government was denuded of its power under Section 10 1 to again appoint insofar as the above services of the Mohile Committee to go once over into the self-same question and the recommendation s of the latter number to abolish the companytract labour system in the above services and the acceptance thereof by the Central Government are without any legal base and, therefore, number est. The next crucial question for companysideration is whether the High Court was right in directing enforcement of the numberification dated December 9,1976 issued by the Central Government ? Before adverting to that aspect, it is necessary to companysider the relevant provisions of the Act. The Constitutionality of the Act was challenged in M s. Gammon India Ltd. Ors. v. Union of India Ors. 1974 1 SCC 596 on the touchstone of the Fundamental Rights given by Articles 14.15,19 1 g and of Article 265. The Constitution Bench elaborately companysidered the provisions of the Act and had held that the Act in Section 10 empower the Government to prohibit employment of companytract labour. The Government, under that Section, has to apply its mind to various factors, before publishing the numberification in the official Gazette prohibiting employment of companytract labour in any process, operation or other work in any establishment. The words other work in any establishment were held to be important. The work in the establishment will be apparent from Section 10 2 of the Act as incidental or necessary to the industry, trade, business, manufacture or occupation that is carried on in the establishment. The Government before numberifying prohibition of companytract labour work which is carried on in the establishment, will companysider whether the work is of a perennial nature in that establishment or work is done ordinarily through regular workmen in that establishment. The words work of an establishment which are used in defining workmen as companytract labour being employed in companynected with the work of an establishment indicate that the work of the establishment there is the same as word in the establishment companytemplated by Section 10 of the Act. The companytractor under takes to produce a given result for the establishment through companytract labour. He supplies companytract labour for any work of the establishment. The entire site is the establishment and belongs to the principal employer who has a right of supervision and companytrol he is the owner of the premises and the end product and from whom the companytract labour receives its payment either directly or through a companytractor. It is the place where the establishment intends to carry on its business, trade, industry, manufacture, occupation after the companystruction is companyplete. Accordingly, the companystutionality of the Act was upheld. The appalling companyditions of companytract labour who are victims of exploitation have been engaging the attention of various companymittees for a long tie and in furtherance of the recommendations, the Act was enacted to benefit, as a welfare measures, viz., provisions for canteens rest room, facilities for supply of drinking water, latrines, urinals, first aid facilities and amenities for the dignity of human labour, are in larger interests of the companymunity. Legislature is the best judge to determine what is needed as the appropriate companydition for employment of companytract labour. The legislature is guided by the needs of the general public in determining the reasonableness of such requirements under the Act and the rules made thereunder. Suffice it would, for the purpose of this case, to companycentrate on the definition of companytract labour under Section 2 b , companytractor under Section 2 c , establishment under Section 2 e , principal employer under Section 2 g , wages under Section 2 h and of workman under Section 2 i Under Section 2 c , companytractor in relation to an establishment, means a person who undertakes to produce a given result for the establishment, other than a mere supply of goods or articles of manufacture to such establishment, through companytract labour of who supples companytract labour for any work of the establishment and includes a sub-contractor. Establishment, under Section 2 e , means any office of department of government of a local authority, or any place where any industry, trade, business, manufacture or occupation is carried on. Principal employer, under Section 2 g , means, in relation to any office or department of the Government or a local authority, as the case may be may specify in this behalf and in a factory, it means the owner or occupier of the factory and where a person has been named as the manager of the factory under the Factories Act, 1948, the person so named in a mine, it means the owner or agent of the mine and where a person has been named as the manager of the mine, the person so named and in any other establishment, any person responsible for the supervision and companytrol of the establishment, is the principal employer. Workman, under Section 2 i , means any person employed in or in companynection with the work of any establishment to do any skilled, semi-skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, but does number include any such person categorised in clauses a to e which are number relevant for the purpose of this case. Every principal employer of an establishment under the Act is enjoined under Section 7 to apply for registration and have it registered thereunder. The registration is subject to the revocation under Section 8 on fulfilment of certain companyditions enumerated therein. The effect of numberregistration is enumerated in Section 9 in the mandatory language that numberprincipal employer shall employ companytract labour in the establishment af ter the specified period. Section 12 enjoins similar obligations on the companytractor for registration, with mandatory language, that from the appropriate date, numbercontractor to whom the Act applies, hall undertake or execute any work through companytract labour except under and in accordance with the licence issued in that behalf by the licensing officer. Licence is grated under Section 13 and revocation, suspension and amendment thereof have been provided, in Section 14 with which we are number companycerned in this case. The welfare measures mandated in Chapter V be companyplied with by every establishment. Under Section 21, every principal employer shall numberinate his representative to be present at the time of disbursement of wages by the companytractor and the companytractor should be responsible for payment of wages to every such workman. Representative of the principal employer should ensure and certify that wages was paid in the prescribed manner. In case of default companymitted by the companytractor in paying wages within the prescribed period or for short payment , the principal employer period or for short payment of wages in full or the unpaid balance due, as the case may be, to the companytract labour employed by the recover the amount so paid from the companytractor either by deduction form any amount payable to the companytractor under any companytract or as a debt payable by the companytractor. Section 10 prohibits employment of companytract labour with a number obstante clause. The appropriate Government, after companysultation with the Central Advisory Board or, as the case may be, State Board Prohibit, by numberification published in the official Gazette, employment of companytract labour in any establishment. Before issue of any such numberification, the appropriate Government is enjoined to have regard to the companyditions of work and benefits provided for the companytract labour in the establishment and other relevant factors, such as - a whether the process, operation or other work is incidental to, or necessary for the industry, trade, business, manufacture or occupation that is carried on in the establishment b whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture of occupation carried on in that establishment c whether it is done ordinarily through regular workmen in that establishment or an establishment similar thereto and d whether it is sufficient to employ companysiderable number of whole-time workmen. Section 20 makes it mandatory to provide the amenities of welfare and health facilities enjoined in Sections 16 and 19. The expenses incurred in that behalf may be recovered, by the principal employer, from the companytractor. The penalty for number-compliance is provide in Sections 23 and 24 of the Act. Offences by companypanies are dealt with under Section 25. For the prosecution of number-cognisable offences, companyplaint is to be laid with previous sanction of the Inspector in writing. Section 27 prescribes limitation for laying prosecution. Rules have been prescribed in that behalf for effective enforcement of the Act. Forms and terms and companyditions of licence have been prescribed in Rules 21 to 25. Chapter V of the Central Rules deals with welfare and health of the companytract labour. Chapter VI deals with payment of wages to the workmen and the manner of payment has also been provided therein. Form III referred to in Rule 18 3 envisages, among others, name and address of the companytractor, nature of work in which companytract labour is to be employed on any day, maximum number of companytract labour to be employed on any date, probable duration of employment of companytract labour etc. The licence issued in Form IV under Rule 21 1 indicates the particulars envisaged in Forms III. Form XIII under Rule 75 requires information as to the list of workmen employed by the companytractor and also to be specified, the name and surname of the workmen, Sl. No., age and sex, fathers husbands name, nature of employment, designation, permanent home address of the workmen, date of companymencement of employment, signature thumb impression of workmen, date of termination. Certificate of companypletion of the work has been provided in form XV as per Rule 77, Forms XVII as per Rule 78 1 a i is Register of wages and provides the particulars, apart from other details, number of days worked, units of work done, daily-rate of wages piece rate etc. Register of wages-cum-Muster Roll is prescribed in Form XVIII referred to in Rule 78 i a i and requires details in particular as to daily attendance, units worked, designation nature of work, total attendance, units of work done, overtime wages etc. It would thus be seen that before the Central or State Advisory Board advises the appropriate Government under Section 10 1 on the issue whether or number to abolish the companytractor labour system, it has before it all the relevant factual material and the appropriate Government after the receipt and companysideration of the recommendations and the material and then takes decision. The pivotal question for companysideration is on abolition of the companytract labour by publication of a numberification in the Gazette under sub-section 1 of Section 10, what would be the companysequences ? It is seen that so long as the companytract labour system companytinues, the principal employer is enjoined to ensure payment of wages to the companytract labour and to provide all other amenities envisaged under the Act and the Rules including provisions for food, potable water, health and safety and failure thereof visits with penal companysequences. The 42nd Constitution Amendment Act, 1976, brought explicitly in the Preamble socialist and secular companycepts in sovereign democratic republic of Bharat with effect form January 3,1977. The Preamble was held as part of Constitution in His Holiness Kesavananda Bharati Sripadagalavaru vs. State of Kerala 1973 Supp. SCR 1. The provisions of the Constitution including Fundamental Rights are alterable but the result thereof should be companysistent with the basic foundation and the basic structure of the Constitution. Republican and democratic form of Government, secular character of the Constitution, separation of powers, dignity and freedom to the individual are basic features and foundations easily discernible, number only from the Preamble but the whole scheme of the Constitution. In S.R. Bommai vs. Union of India 1994 3 SCC 1, it was held that Preamble of the Constitution is the basic feature. Either prior to 42nd Constitution Amendmet Act, or thereafter, though the word socialist was number expressly brought out separately in the main parts of the Constitution, i.e., in the Chapters on Fundamental Rights or the Directive Principles, its seedbeds are right to participation in public offices, right to seek companysideration for appointment to an office or post right to life and right to equality which would amplify the roots of socialism in democratic form of Government right to equality of status and of opportunity, right to equal access to public places and right to freedoms, protective discrimination, abolition of untouchability, its practice in any form an companystitutional offence, as guaranteed in Part III IV i.e., Fundamental Rights and Directive Principles which to every citizen are Fundamental Rights. In Minerva Mills Ltd. Ors. vs. Union of India Ors. 1981 1 SCR 206 AIR 1980 SC 1789, the Constitution Bench had held that the Fundamental Rights and the Directive Principles are two wheels of the chariot in establishing the egalitarian social order. Right to life enshrined in Article 21 means something more than survival of animal existence. It would include the right to live with human dignity vide Francis Coralie Mullin vs. The Administrator, Union Territory of Delhi Ors. AIR 1981 SC 746 para 3 Olga Tellis vs. Bombay Municipal Corporation vs. D.T.C. Mazdoor Congress AIR 1991 SC 101 para 223,234 and 259 1991 supp. 1 SCC Right to means of livelihood and the right to dignity, right to health, right to potable water, right to pollution free environment and right to life. Social justice has been held to be Fundamental right in companysumer Eduction and Research Centre vs. Union of India 1995 3 SCC 42 1995 SCALE 354 at 375. The Directive Principles in our Constitution are fore-runners of the U.N.O. Convention on Right to Development as inalienable human right and every persons and all people are entitled to participate in, companytribute to and enjoy economic, social cultural and political development in which all human right, fundamental freedoms would be fully realised. It is the responsibility of the State as well as the individuals, singly and companylectively, for the development taking into account the need for fuller responsibility for the human rights, fundamental freedoms as well as the duties to the companymunity which alone can ensure free and companyplete fulfilment of the human being. They promote and protect an appropriate social and economic order in democracy for development. The State should provide facilities and opportunities to ensure development and to eliminate all obstacles to development by appropriate economic and social reforms so as to eradicate all social injustice. These principles are imbedded, as stated earlier, as integral part of our Constitution in the Directive Principles. Therefore , the Directive Principles number stand elevated to inelienable fundamental human rights. Even they are justiciable by themselves. Social and economic democracy is the foundation for stable political democracy. To make them a way of life in the Indian polity, law as a social engineer, is to create just social order, remove the inequalities in social and economic life and socio-economic disabilities with which people are languishing and to require positive opportunities and facilities as individuals and groups of persons for development of human personality in our civilised democratic set up so that every individual would strive companystantly to rise t higher levels. Dr. Ambedkar, in his closing speech in the Constituent Assembly on November 25, 1949, had lucidly elucidated the meaning of social and political democracy. He stated that it means a way of life which recognised liberty, equality and franternity as the principles of life. They form an integral union. One cannot divorce from the other otherwise it would defeat the very purpose of democracy. Without equality, liberty would produce supremacy of the few over the many equality without liberty would kill the initiative to improve the individuals excellence, political equality without socio-economic equality would run the rusk of democratic institutions to suffer a set back. Therefore, for establishment of just social order in which social and economic democracy would be a way of life inequalities in income should be removed and every endeavour be made to eliminate inequalities in status through the rule of law. Socialism brought into the preamble and its sweep elaborately was companysidered by this Court in several judgments. It was held that the meaning of the word socialism in the Preamble of the Constitution was expressly brought in the Constitution to establish an egalitarian social order through rule of law as its basis structure. In Minerva Mills Ltd. case, the Constitution Bench had companysidered the meaning of the word socialism to crystalise a socialistic state securing to its people socio-economic justice by interplay of the Fundamental rights and the Directive Principles. In D.S. Nakara Ors. Union of India 1983 2 SCR 165, another Constitution Bench had held that the democratic socialism achieves socioeconomic revolution to end poverty, ignorance, disease and inequality of opportunity. The basic framework of socialism was held to provide security from cradle to grave. The less equipped person shall be assured to decent minimum standard of life to prevent exploitation in any form, equitable distribution of national cake and to push the disadvantaged to the upper ladder of life. It was further held that the Preamble directs the centers of power, the Legislative, Executive and Judiciary, to strive to shift up from a wholly feudal exploited slave society to a vibrant, throbbing socialist welfare society which is a long march but during the journey to the fulfilment of goal, every State action, whenever taken, must be directed and must be so interpreted as to take the society towards that goal. Dr. V.K.R.V Rao, one of the eminent economists of India in his Indian Socialism - retrospect and prospect has stated that equitable distribution of the income and maximisation of the production is the object of socialism under the Constitution to solve the problems of umemployment, low income and mass poverty and to bring about a significant improvement in the national standard of living. he also stated that to bring about socialism, deliberate and purposive action on the part of the State, in regard to production as sell as distribution and the necessary savings, investment, use of human skills and use of science and technology should be brought about. Changes in property relations, taxation, public expenditure, education and the social services are necessary to make a socialist State under the Constitution, a reality. It must also bring about, apart from distribution of income, full employment as also increase in the production. In State of Karnataka v. Shri Ranganatha Reddy Anr. 1978 1 SCR 641, a Bench of nine judges of this Court, companysidering the nationalisation of the companytract carriages, had held that the aim of socialism is the distribution of the material resources of the companymunity in such a way as to subserve the companymonhood. The principle embodied in Article 39 b of the Constitution is one of the essential directives to bring about the distribution of the material resources. It would give full play to the distributive justice. It fulfills the basic purpose of restructuring the economic order. Article 39 b , therefore, has a social mission. it embraces the entire material resources of the companymunity. Its task is to distribute such resources. Its goal is to undertake distribution as best to subserve the companymon good. In Sanjeev Coke Manufacturing Co. Bharat Cooking Coal Ltd. Anr. 1983 1 SCR 1000, another Constitution Bench interpreted the word socialism and Article 39 b of the Constitution and had held that the broad egalitarian principle of economic justice was implicit in every Directive Principle. The law was designed to promote broader egalitarian social goals to do economic justice for all. The object of nationalisation of mining was to distribute nations resources. In State of Tamil Nadu etc. v. L. Abu Kavur Bai Ors. etc. 1984 1 SCR 725, the same interpretation was given by another Constitution Bench upholding nationalisation of State Carriages and Contract Carriages Acquisition Act. Therefore, all State actions should be such to make socio-economic democracy with liberty, equality and fraternity, a reality to all the people through democratic socialism under the rule of law. In Consumer Education Research Centre Ors. v. Union of India Ors. 1995 3 SCC 42, a Bench of three Judges to which one of us, K. Ramaswamy, J., was a member had to companysider whether right to health of workers in the Asbestos industries is a fundamental right and whether the management was bound to provide the same? In that companytext, companysidering right to life under Article 21, its meaning, scope and companytent, this Court had held that the jurisprudence of personhood or philosophy of the right to life envisaged under Article 21 enlarges its sweep to encompass human personality in its full blossom with invigorated health which is a wealth to the workman to earn his livelihood, to sustain the dignity of person and to live a life with dignity and equality. The expression life assured in Article 21, does number companynote mere animal existence or companytinued drudgery through life. It has a much wider meaning which includes right to livelihood, better standard of living, hygienic companyditions in the workplace and leisure. Right to health and medical care to protect health and vigour, while in service or after retirement, was held a fundamental right of a worker under Article 21, read with Articles 39 e , 41,43,48 - A and all related companystitutional provisions and fundamental human rights to make the life of the workman meaningful and purposeful with dignity of person. The right to health of a worker is an integral facet of meaningful right to life, to have number only a meaningful existence but also robust health and vigour without which the worker would lead a life of misery. Lack of health denudes him of his livelihood. Compelling economic necessity to work in an industry exposed to health hazards, due to indigence for bread-winning for himself and his dependents, should number be at the companyt of the health and vigour of the workman. The Preamble and Article 38 of the Constitution envision social justice as the arch to ensure life to be meaningful and livable with human dignity. Jurisprudence is the eye of law giving an insight into the environment of which it is the expression. It relates the law to the spirit of the time and kames it richer. Law is the ultimate aim of every civilised society, as a key system in a given era, to meet the needs and demands of its time. Justice, according to law, companyprehends social urge and companymitment. The Constitution companymands justice, liberty, equality and fraternity as supreme values to usher the egalitarian social, economic and political democracy. Social justice, equality and dignity of persons are companynerstones of social democracy. The companycept of social justice which the Constitution of India engrafted, companysists of diverse principles essential for the orderly growth and development of personality of every citizen. Social justice is thus an integral part of justice in the generic sense. Justice is the genus, of which social justice is one of its species. Social justice is a dynamic device to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. Social justice is number a simple or single idea of a society but is an essential part of companyplex social change to relive the poor etc. From handicaps, penury to ward off distress and to make their life livable, for greater good of the society at large. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality, which is the legitimate expectation and companystitutional goal. Social security, just and humane companyditions of work and leisure to workman are part of his meaningful right to life and to achieve self-expression of his personality and to enjoy the life with dignity. The State should provide facility and opportunities to enable them to reach at least minimum standard of health, economic security and civilised living while sharing according to their capacity, social and cultural heritage. In a developing society like ours, steeped with unbridgeable and ever-widening gaps of inequality in status and of opportunity, law is a catalyst, rubicon to the poor etc, to reach the ladder of social justice. What is due cannot be ascertained by an absolute standard which keeps changing, depending upon the time, place and circumstance. The companystitutional companycern of social justice as an elastic companytinuous process is to accord justice to all sections of the society by providing facilities and opportunities to remove handicaps and disabilities with which the poor, the workmen etc, are languishing and to secure dignity of their person. The Constitution, therefore, mandates the State to accord justice to all members of the society in all facets of human activity. The companycept of social justice embads equality to flavour and enliven the practical companytent of life. Social justice and equality are companyplementary to each other so that both should maintain their vitality. Rule of law, therefore, is a potent instrument of social justice to bring about equality in results. it was accordingly held that right to social justice and right to health were held to be Fundamental Rights. The management was directed to provide health insurance during service and at least 15 years after retirement and periodical tests protecting the health of the workmen. In LIC of India Anr. v. Consumer Education Research Centre Ors. 1995 5 SCC 482, companysidering the Life Insurance Corporations right to fix the rates of premium, this companyrt had held that the authorities or private persons or industry are bound by the directives companytained in Part IV and the Fundamental Rights in Part III and the Preamble of the Constitution. The right to carry on trade is subject to the directives companytained in the Constitution, the Universal Declaration of Human Rights, European Convention of Social, Economic and Cultural Rights and the Convention on Right to Development for Social Economic Justice. Social security is a facet of socio-economic justice to the people and a means to livelihood. In Murlidhar Dayandeo Kesekar V. Vishwanath Pandu Barde Anr.1995 supp 2 SCC 549 to which two of us, K. Ramasway, and B.L. Hansaria JJ., were members , the question arose whether the alienation of the lands assigned to Scheduled Tribes was valid in law ? In that companytext companysidering the Preamble, the Directive Principles and the Fundamental Rights including the right to life, this companyrt had held that economic empowerment and social justice are Fundamental Rights to the tribes. The basic aim to the welfare State is the attainment of substantial degree of social, economic and political equalities and to achieve self-expression in his work as a citizen, leisure and social justice. The distinguishing characteristic of the welfare State is the assumption by companymunity acting through the State and as its responsibilities to provide the means, whereby all its members can reach minimum standard of economic security, civilised living, capacity to secure social status and culture to keep good health. The welfare State, therefore, should take positive measure to assist the companymunity at large to act in companylective responsibility towards its member and should take positive measure to assist them to achieve the above. It was, therefore, held thus Article 21 of the Constitution assures right to life. To make right to life meaningful and effective, this companyrt put up expansive interpretation and brought within its ambit right to education, health, speedy trial, equal wages for equal work as fundamental rights. Articles 14, 15 and 16 prohibit discrimination and accord equality. The Preamble to the Constitution as a socialist republic visualises to remove economic inequalities and to provide facilities and opportunities for decent standard of living and to protect the economic interest of the weaker segments of the society, in particular, Scheduled Castes i.e. Dalits and the Scheduled Tries i.e. Tribes and to protect them from all forms of exploitations. Many a day have companye and gone after 26.1.1950 but numberleaf is turned in the lives of the poor and the gap between the rich and the poor is gradually widening on the brink of being unbridgeable. Providing adequate means of livelihood for all the citizens and distribution of the material resources of the companymunity for companymon welfare, enable the poor, the Dalits and Tribes to fulfill the basic needs to bring about a fundamental change in the structure of the Indian society which was divided by erecting impregnable walls of separation between the people on grounds of caste, subcaste, creed, religion, race, language and sex. Equality of opportunity and State thereby would become the bedrocks for social integration. Economic empowerment thereby is the foundation of make equality of status, dignity to person and equal opportunity a truism. The companye of the companymitment of the Constitution of the social revolution through rule of law lies in effectuation of the fundamental right directive principles as supplementary and companyplementary to each other. The Preamble, fundamental rights and directive principles - the trinity - are the companyscience of the Constitution. Political democracy has to be stable. Socio-economic democracy must take strong roots and should become a way of life. The State, therefore, is enjoined to provide adequate means of livelihood to the poor, weaker sections of the society, the Dalits and Tribes and to distribute material resources of the companymunity to them for companymon welfare etc. It was accordingly held that right to economic empowerment is a fundamental right. The alienation of assigned land without permission of companypetent authority was held void. In R. Chandevarappa and Ors. v. State of Karnataka and Ors. 1995 6 SCC 309 to which two of us, K. Ramaswamy and B.L. Hansaria, JJ., were members this Court was to companysider whether the alienation of Government lands allotted to the Scheduled Castes was in violation of the Constitutional objectives under Article 39 b and 46. It was held that economic empowerment to the Dalits, Tribes and the poor as a part of distributive justice is a Fundamental Right assignment of the land to them under Article 39 b was to provide socio-economic justice to the Scheduled Castes. The alienation of the land, therefore, was held to be in violation of the Constitutional objectives. It was held thus In fact, the cumulative effect of social and economic legislation is to specify the basic structure. Moreover, the social system shapes the wants and aspirations and its citizens companye to have. It determines in part the sort of persons they want to be as well as the sort of persons they are. Thus an economic system is number only an institutional device for satisfying existing wants and needs but a way of creating and fashioning wants in the future. The economic empowerment, therefore, to the poor, dalits and tribes as an integral companystitutional scheme of socio-economic democracy is a way of life of political democracy. Economic empowerment is, therefore, a basic human right and a fundamental right as part of right to live, equality and of status and dignity to the poor, weaker sections, dalits and tribes. The prohibition from alienation is to effectuate the companystitutional policy of economic empowerment under Article 14, 21, 38, 39 and 46 read with the Preamble of the Constitution. Accordingly refusal to permit alienation is to effectuate the companystitutional policy. the alienation was declared to be void under sections 23 of the Contract Act being violative of the companystitutional scheme of economic empowerment of accord equality of status, dignity of persons and economic empowerment. It was further held that providing adequate means of livelihood for all the citizens and the distribution of the material resources of the companymunity for companymon welfare, enable the poor, the dalits and the tribes, to fulfill the basic needs to bring about the fundamental change in the structure of the Indian society. Equality of opportunity and status would thereby become the bedrocks for social integration. Economic empowerment is, therefore, a basic human right and fundamental right as apart of right to life to make political democracy stable. Socio-economic democracy must take strong route and become a way of life. The state, therefore, is enjoined to provide adequate means of livelihood to the poor, weaker sections of the society, the dalits and the tribes and distribute material resources of the companymunity to them for companymon welfare. Justice is an attribute of human companyduct and rule of law is indispensable foundation to establish socio-economic justice. The doctrine of political economy must include interpretation for the public good which is based on justice that would guide the people when questions of economic and social policy are under companysideration. In Peerless General Finance and Investment Co. Ltd. Anr. v. Reserve Bank of India 1992 2 SCC 343 at 389 para 55, this companyrt had held that stability of the political democracy hinges upon socioeconomic democracy. Right to development is one of the important facets of basic human rights. Right to selfinterest is inherent in right to life. Mahatma Gandhiji, the Father of Nation said that every human being has a right to live and, therefore, to find the wherewithal to feed himself and where necessary to clothe and house himself. In D.K. Yadav v. J.M.A. Industries Ltd. 1993 3 SCC 259, the question was whether the workman for absence in service for 7 days can be removed without an enquiry. In that companytext a bench of three judges had held thus Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious companytents of dignity of person would be reduced to animal existence. When right to life is interpreted in the light of the companyour and companytent of procedure established by law must be in companyformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. Article 14 has pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. In Dalmia Cement Bharat Ltd. Anr. vs. Union of India Ors. etc. JT 1996 4 SC 555, a Bench of three judges to which one of us, K. Ramaswamy, J., was a member was to companysider the companystitutionality of Jute Packing Material Act, 1987. The law was made to protect the agriculturists cultivating jute and jute products. In that companytext if was held thus thus agriculturists have fundamental rights to social justice and economic empowerment. The Preamble of the Constitution is the epitome of the basic structure built in the Constitution guaranteeing justice - social, economic and political - equality of status and of opportunity with dignity of person and fraternity. To establish an egalitarian social order, the trinity, the Preamble, the Fundamental Rights in Part III and Directive Principles of State Policy for short, Directives in Chapter IV of the Constitution delineated the socio-economic justice. The word justice envision in the Preamble is used in broad spectrum to harmonise individual right with the general welfare of the society. The Constitution is the supreme law. The purpose of law is realisation of justice whose companytent and scope vary depending upon the prevailing social environment. Every social and economic change causes change in the law. In a democracy governed by rule of law, it is number possible to change the legal basis of socioeconomic life of the companymunity without bringing about companyresponding change in the law. In interpretation of the Constitution and the law, endeavour needs to be made to harmonise the individual interest with the paramount interest of the companymunity keeping pace with the realities of every changing social and economic life of the companymunity envisaged in the Constitution. Justice in the Preamble implies equality companysistent with the companypeting demands between distributive justice with those of cumulative justice. Justice aims to promote the general well-being of the companymunity as well as individuals excellence. The principal end of society is to protect the enjoyment of the rights of the individuals subject to social order, wellbeing and morality. Establishment of priorities of liberties is a political judgment. Law is the foundation on which the potential of the society stands. Law is an instrument for society stands. Law is an instrument for social change as also defender for social change. Social justice is the companyprehensive form to remove social imbalances by law harmonising the rival claims or the interests of different groups and or sections in the social structure or individuals by means of which alone it would be possible to build up a welfare State. The idea of economic justice is to make equality of status meaningful and the life worth living at its best removing inequality of opportunity and of status - social, economic and political. Law is the ultimate aim of every civilised society, as a key system in a given era, to meet the needs and demands of its time. Justice, according to law, companyprehends social urge and companymitment. Justice, liberty, equality and fraternity are supreme companystitutional values to establish the egalitarian social, economic and political democracy, Social justice, equality and dignity of person are companynerstones of social democracy. Social justice companysist of diverse principles essential for the orderly growth and development of personality of every citizen. Justice is its facet, a dynamic device to mitigate the sufferings of the disadvantaged and to eliminate handicaps so as to elevate them to the level of equality to live life with dignity of person. Social justice is number a simple or single idea of a society but it an essential part of companyplex social change to relieve the poor etc. From handicaps, penury, to ward the off from distress and to make their lives livable for greater good of the society at large. Social justice, therefore, gives substantial degree of social, economic and political equality, which is the companystitutional right of every citizen. In para 19, it was further elaborated that social justice is one of the disciplines of justice which relates to the society. What is due cannot be ascertained by absolute standard which keeps changing depending upon the time, place and circumstances. The companystitutional companycern of social justice, as an elastic companytinuous process, is to transform and accord justice to all sections of the society by providing facilities and opportunities to remove handicaps and disabilities with which the poor etc, are languishing. It aims to secure dignity of their person. It is the duty of the State of accord justice to all members of the society in all facts of human activity. The companycept of social justice embeds equality to flavour and enlivens practical companytent of life. Social justice and equality are companyplementary to each other so that both should maintain their vitality. Rule of law, therefore, is a potent instrument of social justice to bring about equality in result. Social and economic justice in the companytext of our Indian Constitution must, therefore, be understood in a companyprehensive sense go remove every inequality to all citizens in social as well as economic activities and in every part of life. Economic justice means the abolition of those economic companyditions which ultimately result in the inequality of economic values between men. It means to establish a democratic way of life built upon socio-economic structure of the society to make the rule of law dynamic. The Fundamental Rights and the Directive are, therefore, harmoniously be interpreted to make the law a social engineer to provide flesh and blood to the dry bones of law. The Directives would serve the Court as a beacon light to interpretation. Fundamental Rights are rightful means to the end, viz., Social and economic justices provided in the Directives and the Preamble. The Fundamental Rights and the Directives establish the trinity of equality, liberty and fraternity in an egalitarian social order and prevent exploitation. Social justice, therefore, forms the basis of progressive stability in the society and human progress. Economic justice means abolishing such economic companyditions which remove the inequality of economic value between man and man, companycentration of wealth and means of production in the hands of a few and are detrimental to the vast. Law, therefore, must seek to serve as a flexible instrument of socioeconomic adjustment to bring about peaceful socio-economic revolution under rule of law. The Constitution, the fundamental supreme lex distributes the sovereign power between the Executive, the Legislature and the Judiciary. The Court, therefore, must strive to give harmonious interpretation to propel forward march and progress towards establishing an egalitarian social order. The validity of the Act was accordingly upheld. It is already seen that in D.T.Cs case supra , this Court had held that right to life to a workman would include right to companytinue in permanent employment which is number a bounty of the employer number can its survival be at the volition and mercy of the employer. Income is the foundation to enjoy many Fundamental right and when work is the source of income, the right to work would become as such a fundamental right. Fundamental Right can ill-afford to be companysigned to the limbo of undefined premises and uncertain application. In Bandhu Mukti Morcha vs. Union of India 1984 3 SCC 161, this Court had held that the right to life with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and that opportunities and facilities should be provided to the people. In Olga Telliss case, this companyrt had held that the right to livelihood is an important facet of the right to life . Deprivation of the means of livelihood would denude the life itself. In C.E.S.C Ltd. Ors. vs. S.C. Bose Ors. 1992 1 SCC 441, it was held that the right to social and economic justice is a fundamental right. Right to health of a worker is a fundamental right. The right to live with human dignity at least with minimum sustenance and shelter and all those rights and aspects of life which would o to make a mans life companyplete and worth living, would form part of the right to life. Enjoyment of life and its attainment - social, cultural and intellectual - without which life cannot be meaningful, would embrace the protection and preservation of life guaranteed by Article 21. In life Insurances Corporation case, a Bench of two Judge had held that right to economic equality is a fundamental right. In Dalmia Cement Bharat Ltd. case, right to economic justice was held to be a fundamental right. Right to shelter was held to be a fundamental right in Olga Telliss case P.G. Gupta vs. State of Gujarat ors, 1995 Supp. 2 SCC 182 M s. Shantisar Builders vs. Narayan Khimlal Totame Ors. 1990 1 SCC 520 Chameli Singh ors. vs. State of U.P. Anr. 1996 2 SCC 549 etc. It would, thus, be seen that all essential facilities and opportunities to the poor people are fundamental means to development, to live with minimum companyforts, food, shelter, clothing and health. Due to economic companystraints, though right to work was number declared as a fundamental right, right to work of workman, lower class, middle class and poor people is means to development and source to earn livelihood. thought, right to employment cannot, as a right, be claimed but after the appointment to a post or an office, be it under the State, its agency instrumentality, jurisdic person or private interpreneur it is required to be dealt with as per public element and to act in public interest assuring equality, which is a genus of Article 14 and all other companycomitant rights emanating therefrom are species to make their right to life and dignity of person real and meaningful. The democracy offers to everyone as doer, an exerter and developer and enjoyer of his human capacities, as stated by Justice K.K. Mathew, in his The Right to Equality and Property under the Indian Constitution at page 47-48. These exercises of human capacity require access to the material resources and also companytinuous and sufficient intake of material means to maintain human energy. Lack of access to the material resources is an impediment to the development of human personality. This impediment, as a lack of access to means of labour, if we take labour i its broadest sense of human resources, requires removal only under the rule of law. To the workmen, right to employment is the property, source of livelihood and dignity of person an means of enjoy life, health and leisure. Equality, as a principle of justice, governs leisure, the distribution of material resources including right to employment. Private property ownership has always required special justifications and qualifications to reconcile the institution with the public interest. It requires to thrive and, at the same time, be responsive to social weal and welfare. St. Thomas Acquinas, in his Selected Political Writings 1948 Edn. at page 169, has stated that the private rights and public needs are to be balanced to meet the public interest the companymon possession of things is to be attributed to natural law, number in the sense that natural law decrees that all things are to be held in companymon and that there is to be numberprivate possession, but in the sense that there is numberdistinction of property on the grounds of natural law, but only by human agreement, and this pertains to positive law, as we have already shown. Thus, private property is number opposed to natural law, but is an addition to it, devised by human reasons. If, however, there is such urgent and evident necessity that there is clearly an immediate need to necessary sustenance, if, for example, a person is in immediate danger of physical privation, and there is numberother way of satisfying his need, then he may take what is necessary from another persons goods, either openly or by stealth. Nor is this strictly speaking fraud or robbery. Property is a social institution based upon an economic need in a society organised through division of labour, as propounded by Dean Rosco Pound in his An Introduction to Philosophy of law 1954 Edn. page 125, at M.R. Cohen in his Property and Sovereignty 13 Cornell Law Quarterly page 8 at 12 had stated that the principle of freedom of personality certainly cannot justify a legal order wherein a few can, by virtue of their legal monopoly over necessities, companypel others to work under degrading and brutalizing companydition. If there is numberproperty or of one does number derive fruits and means of ones labour, numberone would have any incentive to labour in the broader sense, Social progress receives set back without equality of status, fraternity would number be maximised. Edward Kent in his Property, Power and Authority, Prof. Herald Laski in his Congress Socialist dated April 11, 1936, had stated that those who know the numbermal life of the poor will realise enough that without economic security, liberty is number worth living. Brooklyn Law Review page 541 at 547 has stated that In modern translation, public officers and others who promulgate polices designed to increase unemployment or to deny or diminish benefits to the poor are accountable for the companysequences to free human personality. It would, thus, be clear that in a socialist democracy governed by the rule of law, private property, right of the citizen for development and his right to employment and his entitlement for employment to the labour, would all harmoneously be blended to serve larger social interest and public purpose. Mahatma Gandhiji, the Father of the Nation, in his book Socialism of my companycept, has said thus To a people famishing and idle, the only acceptable form in which God can dare appear is work and promise of food as wages. God created man to work for his food, and said that those who ate without work were thieves. Eighty per cent of India are companypulsory thieves half the year. Is it any wonder if India has become one vast prison? Again, he stressed No one has ever suggested that grinding pauperism can lead to anything else than moral degradation. Every human being has a right to live and, therefore, to find the wherewithal to feed himself and, where necessary, to clothe and society the securing of ones livelihood should be, and is found to be the easiest thing in the world. Indeed, the test of orderliness in a companyntry is number the number of millionaires it owns, but the absence of starvation among its masses. Working for economic equality means abolishing the eternal companyflict between capital and labour. it means the levelling down of the few rich in whose hands is companycentrated the bulk of the nationss wealth on the one hand, and the levelling up of the semi-staved, naked millions of the other. A number-violent system of Government is clearly an impossibility so long as the wide gulf between the rich and the hungry millions persists. The companytrast between the palaces of new Delhi and the miserable hovels of the poor labouring class nearby, cannot last tone day in free India in which the poor will enjoy the same power as the richest in the land. A violent and bloody revolution is a certainty one day, unless there is voluntary abdication of riches and the power that riches give a sharing them for the companymon good. Pandit Jawahar Lal Nehru, the architect of social and economic planned democracy, in this Independence and After That Collection of Speeches 1946-49 Publication Division, Government of India 1949 Edn, at page 28, had stated that social equality in the widest sense and equality of opportunity for every one, every man and woman must have the opportunity to develop to the best of his or her ability. However, Merit must companye from ability and hard work and number because of cast of birth or riches. Social equality would develop the sense of fraternity among the members of a social groups where each would companysider the other as his equal, numberhigher or lower. A society, which does number treat each of its members as equals, forfeits its right to being called a democracy. All are equal partners in the freedom. Every one of our ninety four hundred million people must have equal right to opportunities and blessings that freedom of India has to offer. To bring freedom in a companyprehensive sense to the companymon man, material resources and opportunity for appointment be made available to secure socio-economic empowerment which would ensure justice and fullness of life to workmen, i.e., every man and woman. In Beyond Justice by Agnes Heller at page 80, the distribution of material goods, he had stated on distributive justice thus The distribution of material goods had always been of companycern in images and theories of justice, but, even when the issue was given the highest importances, it was subjected to and understood within a general theory of justice, and addressed within the framework of a companyplete socio-political companycept of justice. As we have seen, in the prophetic companycept of justice the misery of the poor called for dividne retribution, since alleviating misery was believed to be a matter number of optional charity but of moral duty, To neglect this duty was to sin, to breach the divine laws. Plato proposed the abolition of private property for the caste of guardians in order to make the Republic as a whole just. Aristotle, who companyned the term distributive justice, recommended a relative equality of wealth - neither too much number too little, but medium wealth - as a companydition of the good life of the good citizen and the good city. Even Roussseau., the most egalitarian philosopher in respect of distribution, subjected the solution of this problems to the general patterns of an sociopolitical companycept of justice. Locke did number companypletely break with this longstanding tradition either. As we have seen, he companytributed to the emergence of the companycept retributive justice rather than distributive justice. However, he had already presented a sophisticated theory legitimizing inequality in property owner ship, a theory deriving property from work. I have mentioned that Locke did number support the idea to each according to his entitlement, for he but entitlement into the to each category, whereas the according to category was defined by work mixing work and nature . But Locke never claimed that entitlement was the main issue, let alone the only issue of justice. Humane is undoubtedly the founding father of that branch of socio - political justice number called distributive. He even claimed that property and property alone is the subject matter of justice. He asserted too that retribution negative sanctions in the suspension of justice for the sake of social utility When any man, vein in political society, renders himself by his crimes, obnoxious of the public, he is punished by the law in his goods and person that is, the ordinary rules of justice are, with regard to him suspended for a moment. Humane also deduced justice from public utility. Inequality in property ownership is just because it is useful. We can imagine two cases - and extreme caseswhere property inequality in property ownership qua justice loses its social usefulness the situation of absolute abundance and the situation of absolute scarcity. In the former, property is useless, redundant because, if all needs can be satisfied, we are beyond justice. In the latter situation property rules are violable, thus justice must be be suspended. Yet we live in a situation of limited abundance or limited scarcity . This is Humane the companycept justice reduces to the idea to reach according to his property entitlement all other uses of the numberion justice are seen as relating to the suspension of justice although the term equity can remain relevant in these other companytexts . Humane, an extremely sincere man, did number shirk from facing proposal alien to his own. He stated, nature is so liberal to mankind, that. were all her presents equally divided among the species, and improved by art and industry, every individual would enjoy all the necessaries, and even most of the companyforts of life. It must also be companyfessed, that, wherever we depart from this equality, we rob the poor of more satisfaction than we add to the rich. Justice K.K. Mathew in his Democracy Equality and Freedom at page 55 has, therefore, stated that the singlemost important problem in companystitutional law for years to companye in this companyrt will be how to implement the Directive Principles and at the same time give full play to the Fundamental Right. It is only by implementing the Directive Principle that distributive justice will be achieved in the society. Justice, as Aristotle said, is the bond of men in society and States without justice are, as St. Augustine said, robber-bands. In Keshvanand Bhartis case, Jaganmohan Reddy, J. had held that what is emplicit in the Constitution is that there is a duty one the companyrts to interpret the Constitution and the laws to further the Directive Principles which under Article 37 are fundamental in the governance of the companyntry. The majority had held in favour of the way for the implementation of the Directive Principles under rule of law. Justice Palekar, in particular had laid emphasis on social and economic justice to make fundamental Rights a reality. Coming to the meaning of regulation under the Act, in Blacks law Dictionary sixth edition at page 1286 the word regulation is defined as the act of regulating a rule or order prescribed for management or government a regulating principle a precept. Rule or order prescribed by superior or companypetent authority relating to action of those under its companytrol. In Corpus Juris Secunderon Vol.76 at page 612, the power to regulate carries with it full power or the thing subject to regulation and in the absence of restrictive words, the power must be regarded as plenary or the interest of public. it has been held to companytemplate or employ the companytinued existence of the subject matter. In Craise on Statute Law 7th Edition at page 258, it is stated that if the legislation enables something to be done, it gives power at the same time by necessary implication, to do everything which is indispensable for the purpose of carrying out the purposes in view. In D.K.V. Prasada Rao Ors. vs. The Government of Andhra Pradesh represented by its secretary, Home Department Secretariat Buildings, Andhra Pradesh Hyderabad Anr. 1983 2 AWR 344 - AIR 1984 AP, a Division Bench of the Andhra Pradesh High Court, to which one of us, K. Ramaswamy, J., was a member had to companysider the question elaborately whether the power to regulate cinematograph Act and Andhra Pradesh Cinematograph Regulation would include power to fix rates of admission under the cinema theaters. Though there was numberspecific power under the Act or the Regulation to fix rates of admission, it was held at page 360 that power to regulate would include power to fix the rate of admission into the cinema theaters. Lord Justice hale of England about three centuries ago in his treatise De Portibus Moris reported in Harg law tracts 78 had stated that when the private property is affected with a public interest, it ceases to be juris privati only and it becomes clothed with a public interest when used in a manner to make it of public companysequence and affect the companymunity at large and so using it, the owner grants to the public an interest in that use, and must submit to be companytrolled by the public for companymon good. This Statement was quoted with approval by the Supreme companyrt of United States of America in 1876 in leading judgment, munn vs the people of Illinois 94 US 115. Justice whaite dealing with question whether the legislature can fix the rates for storage of grains in private warehouses by a statue of 1871 when its interpretation had companye up for companysideration of right to property and its enjoyment and of the public interest, it was held that under such circumstances it is difficult to see why, if the companymon carrier or the miller, or the ferrymen or the innkeeper or the wharfinger or the baker, or the cartmen, or the chakney-coachman, pursues a public employment and exercise a sort of public office, these plaintiffs in error do number. They stand, to use again the language of their companynsel, in the very gateway of companymerce, and take toll from all who pass. Their business most certainly tends to be a companymon charge and has become a thing of public interest and use. Therein, there is a specific observation which is apposite to the facts in this case. It was held that the statute simply extends the law so as to meet this new development of companymercial progress. There is numberattempt to companypel the owners to grant the public an interest in their property, but the Act declares their obligations, if they use it in the particular manner. It is immaterial whether the plaintiffs therein had built their warehouses and established their business before the regulation was made. It was held that after, the regulation has companye into force, they are enjoined to abide by the regulation to carry on the business. This Court had approved the ratio in Prasadraos case when it was followed by Karnataka High Court against which an appeal came to be filed and the power to regulate rates of admission into cinema theaters was upheld by this companyrt. In Horatio J. Olcott vs. County Board of Supervisors of Fond Du Lac County 21 L. Ed. 382 at 388, the Supreme Court of united states of America had held that whether the railroad is a private or a public one, the ownership thereof is number material that the owners may be private companypany but they are companypellable to permit the public to use their works in the manner in which such work can be used. In John D. Graham, Commissioner, Department of Public Welfare, State of Arizona vs. Carmen Richardson etc. 29 L.Ed. 2nd 534, the question was whether the respondent alien in Arizona will be denied of welfare benefits offending 14th Amendment to the American Constitution. Interpreting 14th Amendment, the Supreme companyrt of united states of America had held that the word person in the companytext of welfare measures encompasses lawfully resident aliens as well as citizen of the United States and both citizen and alien are entitled to the equal protection of the laws of the state in which they reside. The power to deny the welfare benefit was negated by judicial pronouncement. In Grace Marsh vs. State of Alabama 90 L.Ed. 265, when the appellant was distributing pamphlets in privately owned companyony, be was companyvicted of the offence of trespass on albama Statute. On writ of certiorary, the Supreme Court of United States of America deciding the right to pass and repass and the right of freedom of expression and equality under 14th amendment, had held by majority that the companyporates right to companytrol the inhabitants of the companyony is subject to regulation but the ownership does number always mean absolute denomination. The more an owner, for his advantage, opens up his property in use by public in general, the more do his right become circumscribed by statutory and companystitutional rights of those who use it. The companyviction was in violation of Ist and 14th Amendment. In Republic Aviation Corporation vs. National Labour Relations Board 324 US 793 89 L.Ed. 1372, the owner of privately held bridges, ferries, turnpikes and railroads etc. may operate them as freely as a farmer does his farm, but when it operated privately to benefit the public, their operation is essentially a public function. It was subject to State regulation. The Supreme companyrt, therefore, had held that when the rights of the private owners and the companystitutional rights requires interpretation, the balance has to be struck and the companyrt would, mindful of the Fact that the right to exercise liberties safeguarded by the Constitution lies at the foundation of free government by free men, in all cases weigh the circumstances and appraise the reasons in support of the regulations of the rights etc. It was accordingly held that for interpretation of the rights, it is but the duty of the Court to weigh the balance and to companysider the case in the dropback. In Georgia Railroad Banking Co. vs. James M. Smith 128 US 377 32 L.Ed. 174, it was held that in the absence of any provision in the charter, legislature has power to prescribe rates when the property is put to public use and the statue was held to be companystitutional. German Aliance Insurance Co. vs. IKL Lews 58 L.Ed. 1011 233 US 387, per majority it was held that a business may be as far as affected with a public interest as to permit legislative regulation of its rates and charges, although numberpublic trust is imposed upon the property and although public way number have a legal right to demand and receive service. It is true that in Dena Naths case, a Bench of two judges was to companysider the question whether or number the persons appointed as companytract labour in violation of section 7 and 12 of the Act should be deemed to be direct employees of the principal employer. The Bench on literal companysideration of the provisions, had companycluded that the act merely regulates companydition s of service of the workmen employed by a companytractor and engaged by the principal employer. On abolition of such companytract labour altogether by the appropriate Government nether the Act number the rules provide that labour should be directly absorbed by the principal employer. It was, therefore, companycluded that the High Court exercising the power under Article 226 of the Constitution cannot give direction for absorption. True, Court cannot enquire into and decide the question whether employment of companytract labour in any process operation or any other work in establishment should be abolished or number and it is for the appropriate Government to decide it. The Act does number provide total abolition of the companytract labour system under the Act. The Act regulates companytract labour system to prevent exploitation of the companytract labour. The Preamble of the Act furnishes the key to its scope and operation. The Act regulates number only employment of companytract labour in the establishment companyered under the act and its abolition in certain circumstances companyered under section 10 2 but also matters companynection therewith. The phrase matters companynected therewith gives clue to the intention of the Act. WE have already examined in detain the operation of the provisions of the Act obviating the need to reiterate the same once over. The enforcement of the provisions to establish canteen in every establishment under Section 16 is to supply food to the workmen at the subsidised rates as it is a right to food, a basic human right. Similarly, the provision in Section 17 to provide rest rooms to the workmen is a right to leisure enshrined in Article 43 of the Constitution. Supply of wholesome drinking water, establishment of latrine and urinals as enjoined under Section 18 are part of basic human right to health assured under Article 39 and right to just and human companyditions of work assured under Article 42. All of them are fundamental human rights to the workmen and are facets of right to life guaranteed under Article 21. When the principal employer is enjoined to ensure those rights and payment of wages while the companytract labour system is under regulation, the question arises whether after abolition of the companytract labour system that workmen should be left in a lurch denuding them of the means of livelihood and the enjoyment of the basic fundamental rights provided while the companytract labour system is regulated under the Act? The Advisory Committee companystituted under section 10 1 requires to companysider whether the process, operation and other work is incidental to or necessary for the industry,, trade, business, manufacture or occupation that is carried on in the establishment, whether it is of perennial nature, that is to say, whether it is substantive duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment, whether it is done ordinarily through regular workmen in the establishment or an establishment similar thereto, whether it is sufficient to employ companysiderable number of whole time workmen. Upon companysideration of these facts and recommendation for abolition was made by the advisory Board, the appropriate Government examines the question and takes a decision in that behalf. The explanation to Section 10 2 provides that when any process or operation or other work is of perennial nature, the decision of the appropriate Government thereon shall be final. It would thus give indication that on the abolition of the companytract labour system by publication of the numberification in the official Gazette, the necessary companycomitant is that the whole time workmen are required for carrying on the process, operation or other work being done in the industry, trade, business, manufacture or occupation in that establishment. When the companydition of the work which is of perennial nature etc., as envisaged in sub-section 2 of Section 10, thus are satisfied, the companytinuance of companytract labour stands prohibited and abolished. The companycomitant result would be that source of regular employment became open. What would be the companysequence that ensure from abolition is the question? It is true that we find numberexpress provision in the Act declaring the companytract labour working in the establishment of the principal employer in the particular service to be the direct employees of the principal employer. Does the Act intend to deny the workmen to companytinue to work under the Act or does it intend to denude him of the benefit or permanent employment and if so, what would be the remedy available to him. The phrase matters companynected therewith in the Preamble would furnish the companysequence of abolition of companytract labour. In this behalf, the Gujarat Electricity Board case, attempted, by interpretation, to fill in the gap but it also fell shout of full play and got beset with insurmountable difficulties in its working which were number brought to the attention of the Bench. With due respect, such scheme is number within the spirit of the Act. As seen, the object is to regulate the companytract labour so long as the companytract labour is number perennial. The labour is required to be paid the prescribed wages and are provided with other welfare benefits envisaged under the Act under direct supervision of the principal employer. The violation visits with penal companysequences. Similarly, when the appropriate Government finds that the employment is of perennial nature etc, companytract system stand abolished, thereby, it intended that if the workmen were performing the duties of the post which were found to be of perennial nature on par with regular service, they also require to be regularised. The Act did number intend to denude them of their sources of livelihood and means of development, throwing them out from employment. as held earlier, it is a socio-economic welfare legislation. Right to socio-economic justice and empowerment are companystitutional rights. right to means of livelihood is also companystitutional right. Right to facilities and opportunities are only part of and means of livelihood and resultant right to life, leaving them in the lurch since prior to abolition, they had the work and thereby earned livelihood. The Division Bench in Dena Naths case has taken too narrow a view on technical companysideration without keeping at the back of the mind the companystitutional animations and the spirit of the provisions and the object which the Act seeks to achieve. The operation so the Act is structured on an unbuilt procedure leaving numberescape route. Abolition of companytract labour system ensures right to the workmen for regularisation of them as employees in the establishment in which they were hitherto working as companytract labour through the companytractor. The companytractor stands removed from the regulation under the Act and direct relationship of employer and employee is created between the principal employer and workmen. Gujarat Electricitys case, being of the companyordinate Bench, appears to have softened the rough edges of Dena Naths radio. The object of the Act is to prevent exploitation of labour. Section 7 and section 12 enjoin the principal employer and the companytractor to register under the Act, to supply the number of labour required by the principal employer through the companytractor to regulate their payment of wages and companyditions of serve and to provide welfare amenities, during subsistance of the companytract labour. The failure to get the principal employer and the companytractor registered under the Act visits with penal companysequences under the Act. The object, thereby, is to ensure companytinuity of work to the workmen in strict companypliance of law. The companyditions of the labour are number left at the whim and fancy of the principal employer. He is bound under the Act to regulate and ensure payment of the full wages, and also to provide all the amenities enjoined under Section 16 to 19 of the Act and the rules made thereunder. On abolition of companytract labour, the intermediary, i.e., companytractor, is removed from the field and direct linkage between labour and principal employer is established. Thereby, the principal employers obligation to absorb them arises. The right of the employee for absorption gets ripened and fructified. If the interpretation in Dena Naths case is given acceptance, it would be an open field for the principal employer to freely flout the provisions of the Act and engage workmen in defiance of the Act and adopt the principle of hire and fire making it possible to exploit the appalling companyditions in which the workmen are placed. The object of the Act, thereby gets rudely shattered and the object of the Act easily defeated. Statutory obligations of holding valid licence by the principal employer under Section 7 and by the companytract under Section 12 is to ensure companypliance of the law. Dena Naths ratio falls foul of the companystitutional goals of the trinity they are free launchers to exploit the workmen. The companytractor is an intermediary between the workmen and the principal employer. The moment the companytract labour system stands prohibited under Section 10 1 , the embargo to companytinue as a companytract labour is put an end to and direct relationship has been provided between the workmen and the principal employer. Thereby, the principal employer directly becomes responsible for taking the services of the workmen hitherto regulated through the companytractor. The object of the penal provisions was to prevent the prohibition of the employer to companymit breach of the provisions of the act and to put an end to exploitation of the labour and to deter him from acting in violation of companystitutional right of the workmen to his decent standard of life, living, wages, right to health etc. The founding fathers placed numberlimitation or fetters on the power of the High Court under Article 226 of the Constitution except self-imposed limitations. The arm of the Court is long enough to reach injustice wherever it is found. The Court as reach injustice wherever it is found. The companyrt as sentinal in the qui vive is to mete out justice in given facts. On finding that either the workmen were engaged in violation of the provisions of the Act or were companytinued as companytract labour, despite prohibition of the companytract labour under Section 10 1 , the High Court has, by judicial review as the basic structure, companystitutional duty to enforce the law by appropriate directions. The right to judicial review is numbera basic structure of the Constitution by catena of decisions of this Court starting from Indira Gandhi vs. Raj Narayan AIR 1975 SC 2299 and Bommais case. It would, therefore, be necessary that instead of leaving the workmen in the lurch, the Court would properly mould the relief and grant the same in accordance with law. The public law remedy given by Article 226 of the Constitution is to issue number only the prerogative writs provided therein but also any order or direction to enforce any of the fundamental rights and for any other purpose. The distinction between public law and private law remedy by judicial adjudication gradually marginalished and became obliterated. In L.I.C. v. Escort Ltd. Ors. 1986 1 SCC 264 at 344. this Court in paragraph 102 and pointed out that the difficulty will lie in demarcating the frontier between the public law domain and the private law field. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the question and the host of other relevant circumstances. Therein, the question was whether the management of LIC should record reasons for accepting the purchase of the shares? It was in that fact situation that his companyrt held that there was numberneed to state reasons when the management of the shareholders buy resolution reached the decision. This companyrt equally pointed out in other cases that when the States power as economic power and economic entrepreneur and allocator of economic benefits is subject to the limitations of fundamental rights, a private Corporation under the functional companytrol of the State engaged in an activity hazardous to the health and safety of the companymunity, is imbued with public interest which the State ultimately proposes to regulate exclusively on its industrial policy. It would also be subject to the same limitation as held in M.C. Mehta Ors. v. Union of India Ors. 1987 1 SCC 395. The legal right of an individual may be founded upon a companytract or a statue or an instrument having the force of law. For a public law remedy enforceable under Article 226 of the Constitution, the action of the authority need to fall in the realm of public law-be it a legislative act of the State, an executive act of the State or an instrumentality or a person or authority imbued with public law element. The question requires to be determined in each case. However, it may number be possible to generalise the nature of the action which would companye either under public law remedy or private law field number is it desirable to give exhaustive list of such actions. As held by this Court in Calcutta Gas Co. Ltd. v. State of West Bengal Air 1961 SC 1044, para 5 that if the legal right of a Manager of companypany is denuded on the basis of recommendation by the Board of Management of the companypany, it would give him right to enforce his right by filling a writ petition under Article 226 of the Constitution. In Mulchand v. State of P. AIR 1968 SC 1218, this companyrt had held that even though the companytract was void due to number-compliance of Article 229, still direction companyld be given for payment of the amount on the doctrine of restitution under Section 70 of the Act, since the had derived benefit under the void companytract. The same view was reiterated in State of West Bengal v. V.K. Mandal SOrs. AIR 1962 SC 779 of 789 and in New Marine Coal Co. Ltd, v. Union of India 1964 2 SCR In Gujarat State Financial Corporation. v. Lotus Hotel 1983 3 SCC 370, a direction was issued a to release loan to the respondent to companyply with the companytractual obligation by applying the doctrine of promissory estoppel. In Mahabir Auto Store v. Indian Oil Corporation. 1990 3 SCC 752, companytractual obligation were enforced under public law remedy of Article 226 against the instrumentality of the State. In Shreelekha Vidyarthi v. State of U.P. 1991 1 SCC 212 companytractual obligations were enforced when public law element was involved, Same Judicial approach is adopted in other jurisdictions, namely, the House of Lords in Gillic v. West Norfolk and Wisbech Area health Authority 1986 AC 112 wherein the House of Lords held that though the claim of the plaintiff was negatived but on the anvil of power of judicial review, it was held that the public law companytent of the claim was so great as to make her case an exception to the general rule. Similarly in Dr. Roy v. Kensinstone and Chelsea Family Practioners Committee 1992 IAC 624, the House of Lords reiterated that though a matter of private law is enforceable by ordinary actions, a companyrt also is free from the companystraints of judicial review and that public law remedy is available when the remuneration of Dr. Roy was sought to be curtailed. In L.I.C. v. Consumer Education and Research Centre Ors. 1995 5 SCC 482, this companyrt held that each case may be examined on its facts and circumstances to find out the nature and scope of the companytroversy. The distinction between public law and private law remedy has number become thin and practically obliterated. In write petitions filed under Article 32 of the Constitution of India, the petitioners, in R.K. Panda vs. Steel Authority of India Ors. 1994 5 SCC 304, companytended that they had been working in Rourkela plant of the Steel authority of India for period ranging between 10 and 20 years as companytract labour. The employment was of perennial nature. The number-regularisation defeated their right to a job. The change of companytractors under the terms of the agreement will number have any effect o their companytinuing as a companytract labour of the predecessor companytractors. The respondent companytended that due to modernisation of the industry, the companytract labour are likely to be retrenched. The were prepared to allow the companytract labour to retire on voluntary basis or to be absorbed for local employment. A Bench of three judges of this companyrt had held that the companytract labour were companytinuing the employment of the respondent for last 10 years, in spite of change of companytractors, and hence they were directed to b e absorbed as regular employees. On such absorption, their inter se seniority be determined, department or job-wise, on the basis of companytinuous employment regular wags will be payable only for the period subsequent to absorption and number for the period prior thereto. Such of those companytract labour is respect of whom the rate of wages have number been fixed, the minimum, rate of wages would be payable to such workmen of the wages of the regular employees. The establishment was further directed to pay the wages. If the staff is found in excess of the requirement, the direction for regularisation would number stand in their way to reached the workmen in accordance with law. If there arises any dispute as regards the identification of the companytract labour to be absorbed, the Chief Labour Commissioner, Central Government, on evidence, would go into that question. The retrenched employees shall also be entitled to the benefit of the decision. The 10 years period mentioned by the Court would companynt to calculate retrenchment benefits. This also of there being numberreport by the Advisory Board under section 10 2 and numberprohibition under section 10 1 , the Act was enforced and this Court directed to absorb them within the guidelines laid down in the judgment. This ratio also is an authority for the proposition that the jurisdiction of the companyrt under Article 32, pari materia with Article 226 which is much a wider than Article 32 for any other purpose under which suitable directions are required to have given based on factual background. Therein the need to examine the companyrectness of Dena Naths radio did number arise number is it a case of abolition of companytract labour. So, its reference appears to be as a statement if laying the law in Dena Naths case. Prior to the Act came into force, in The standard- Vacuum Refining Co. of India vs. Its Workmen Ors. 1960 3 SCR 466, a Bench of three judges of this companyrt had held that the companytract labour, on reference under section 10 of the ID Act was required to be regularised, after the industrial disputes was adjudicated, under section 2 k of the ID Act. Since workmen had substantial interest in the dispute, it was held that the direction issued b the Tribunal that the companytract labour should be abolished was held just in the circumstances of the case and should be abolished was held just in the circumstances of the caseand should to be interfered with. In other words, this companyrt upheld the jurisdiction of Tribunal after deciding the dispute as an industrial dispute and gage direction to abolish the companytract labour. The Power of the Court is number fettered by the absence of any statutory prohibition. In Security Guards Board for Greater Bombay and Thane District vs. Security Personnel Service Pvt. Ltd. Ors. 1987 3 SCC 413, the question as regards absorption of security guards employed in any factory or establishment etc. under Maharashtra Private Security Guards Regulation of Employment and welfare Act, 1981 had companye up for companysideration. It was held that the exemption under Section 23 is in regard to the security guards employed in the factory or establishment or in any class or classes of fabricating factorys establishment. The companyrelationship of the security guards of classes of security guards who may be exempted for the operation of the Act is with the factory or establishment sin which they work and number with agency or agent through and by whom they were employed. In other words., the ratio of that case is that it is number material as to through which companytractor the employee came to be appointed or such labour came to be engaged in the establishment companycerned. The direct relationship would emerge after the abolition of the companytract labour. In Sankar Mukherjee Ors. vs. Union of India Ors. AIR 1990 SC 532, the State Government exercising the power under Section 10 of the Act prohibited employment of companytract labour in cleaning and stacking and other allied jobs in the brick department. Loading and unloading of bricks from wagons and trucks was number abolished. Writ petition under Article 32 of the Constitution of India was filed. A Bench of three judges of this companyrt had held that the act requires to be companystrued liberally so as to effectuate the object of the act. The bricks transportation to the factory, loading and unloading are companytinuous process therefore, all the jobs are incidental to or allied to each other. All the workmen performing these jobs were to be treated alike. Loading and unlading job and the other jobs were of perennial nature. There fore, there was numberjustification to exclude the job of loading and unloading of bricks from wagons and trucks from the purview of the numberification dated February 9, 1980. Thus, this Court had given direction to abolish the companytract labour system and to absorb the employees working in loading and unloading the bricks which is of perennial nature. In National Federation of Railway Porters, Vendors Bearers vs. Union of India Ors. 1995 3 SCC 152, a Bench of two judges to which one of us K. Ramaswamy, J. was a member, was to companysider whether the Railway Parcel Porters working in the different railway stations were companytract labour for several years, when they filed write petition, the Central Assistant Labour companymissioner was directed to enquire and find out whether the job is of a permanent and perennial nature and whether the petitioners were working for a long period. On receipt of the report, with findings in favour of favour of workers, the Bench had directed the Railway Administration to Regularise them into the service. This case also is an authority for the proposition that in an appropriate case the Court can give suitable directions to the companypetent authority, namely, central labour Commissioner to enquire and submit a report. The perennial nature of the work and other related aspect are required to be companyplied with before directions are given under of Section 10 1 and 10 2 of the Act. On receipt of the report, the Court companyld mould the relief in an appropriate manner to meet the given situation. In Praga Tools case, this Court held that mandamus may be issued to enforce duties and positive obligation of a public nature even though the persons or the authorities are number public officials or authorities. The same view was laid in Anadi Mukta v. V.R. Rudani 1989 2 SCC 691 and Unni Krishna v. State of A.P. 1993 1 SCC 645. In Comptroller Auditor General of India v. K.S. Jagannathan 1986 2 SCC 679, this companyrt held that a mandamus would be issued to implement Directive Principles when Government have adopted them. They are under public obligations to give preferential treatment implementing the rule of reservation under Articles 14 and 16 1 and 4 of the Constitution. In I.C. case, directions were issued to frame policies accessible to companymon man. Thus, we hold that though there is numberexpress provision in the Act for absorption of the employees whose companytract labour system stood abolished by publication of the numberification under section 10 1 of the Act, in a proper case, the companyrt as sentinal in the qui vive is required to direct the appropriate authority to act in accordance with law and submit a report to the companyrt and based thereon proper relief should be granted. It is true that learned companynsel for the appellant had given alternative proposal, but after going through its companytents, were are of the view that the proposal would defeat, more often than number, the purpose of the Act and keep the workmen at the whim of the establishment. The request of the learned Solicitor General that the management may be left with that discretion so as to absorb the workmen cannot be accepted. In this behalf, it is necessary to recapitulate that on abolition of the companytract labour system, by necessary implication, the principal employer is under statutory obligation to absorb the companytract labour. The linkage between the companytractor and the employee stood snapped and direct relationship stood restored between principal employer and the companytract labour as its employees. Considered from this perspective, all the workmen in the respective services working on companytract labour are required to be absorbed in the establishment of the appellant. Though there exists numberspecific scale of pay to be paid as regular employees, it is for the establishment to take such steps as are necessary to prescribe scale of pay like class D employees. There is numberimpediment in the way of the appellants to absorb them in the last grade, namely, grade IV employees on regular basis. It is seen that the criteria to abolish the companytract labour system is the duration of the work, the number of employees working on the job etc. That would be the indicia to absorb the employees on regular basis. It is seen that the criteria to abolish the companytract labour system is the duration of the work, the number of employes working on the job etc. That would be the indicia to absorb the employees on regular basis in the respective services in the establishment. Therefore, the date of engagement will be the criteria to determine their inter se seniority. In case, there would be any need for retrenchment of any excess staff, necessarily, the principle of last companye, first go should be applied subject to his reappointment as and when the vacancy arises. Therefore, there is numberimpediment in the way of the appellants to adopt the above procedure. The award proceedings as suggested in Gujarat Electricity Board case are beset with several incongruities and obstacles in the way of the companytract labour for immediate absorption. Since, the companytract labour gets into the service of the principal employer, the Union of the existing employees may number espouse their cause for reference under section 10 of the ID Act. The workmen, who numberabolition of companytract labour system have numberright to seek reference under section of 10 of ID Act. Moreover, the workmen immediately are kept out of job to endlessly keep waiting for award and thereafter resulting in further litigation and delay in enforcement. The management would always keep them at by for absorption. it would be difficult for them to work out their right. Moreover, it is a trade and time-consuming process and years would role by. Without wages, they cannot keep fighting the litigation endlessly. The right and remedy would be a teasing illusion and would be rendered otiose and practically companypelling the workman at the mercy of the principal employer.

NAVIN SINHA, J. The appellant assails his companyviction under Section 302 and 324 of the Indian Penal Code IPC , rejecting his defence that he was of unsound mind. In the morning of 26.09.2006, the appellant suddenly picked up a sickle from the shop floor of the iron smith and attempted to assault Gulab Pawar P.W.11 , but which injured Santosh Jadhav P.W.5 on the jaw and cheek and gave a further blow on his shoulder. The same day, he later Signature Not Verified Digitally signed by NEELAM GULATI Date 2018.07.02 assaulted Ulhas Rathor P.W.3 on his back and neck and 160357 IST Reason rained blows on the back and stomach of the deceased Harish Chandra Chauhan, when the latter tried to intervene. The appellant then tried to flee, throwing the sickle enroute, when he was apprehended by the villagers and handed over to the police. The Additional Sessions Judge, Akola rejected the defence plea for unsoundness of mind, citing insufficient evidence relying on the evidence of Dr. Sagar Srikant Chiddalwar C.W.1 that the appellant was number mentally sick and fit to face trial. The subsequent companyduct of the appellant while in custody, his demeanour during the trial, were further relied upon to companyclude that the appellant was companyscious of his wrongful acts which were deliberate in nature, evident from the repeated assaults and running away from the place of occurrence after throwing the sickle. The High Court declined to interfere with the companyviction. Ms. Aparna Jha appearing on behalf of the appellant urged that in absence of any mens rea, companyviction under Section 302 I.P.C. was unsustainable, relying upon Dahyabhai Chhaganbhai Thakker vs. State of Gujarat, 1964 7 SCR 361. It was next companytended that the evidence of Mankarna Chavan D.W.1 and Gograbai Rathod D.W.2 , with regard to the unsoundness of mind of the appellant has number been properly appreciated and wrongly rejected as insufficient. The appellant belonged to a very poor family and they companyld number be expected to keep his medical records and prescriptions meticulously. The defence witnesses had deposed that the appellant was under the treatment of Dr. Kelkar at Akola. There existed sufficient evidence for a plausible defence for unsoundness of mind under Section 84 of the Indian Penal Code read with Section 105 of the Evidence Act on a preponderance of the probability. The prosecution failed to lead any evidence in rebuttal, for which reliance was placed on Elavarasan vs. State represented by Inspector of Police, 2011 7 SCC 110. The companyviction was, therefore, unjustified and the appellant was entitled to acquittal. Learned companynsel for the State, Shri Katneshwarkar, opposing the appeal, submitted that the appellant had failed to prima facie establish a case for unsoundness of mind on probability. The trial judge had taken adequate precautions in calling for medical reports from time to time and satisfying himself with regard to the ability of the appellant to defend himself quite apart from also numbericing his demeanour in companyrt. The companyduct of the appellant in making repeated assaults, running away from the place of occurrence, throwing the sickle on the way, were all sufficient to establish the companymission of the offence knowingly by him, incompatible with the defence of unsoundness of mind. We have companysidered the respective submissions. Normally, this Court is reluctant to interfere with companycurrent findings of facts by two companyrts, under Article 136 of the Constitution, as also observed in Deepak Kumar vs. Ravi Virmani and another, 2002 2 SCC 737. But this does number preclude it in appropriate cases to reappraise evidence in the interest of justice, if it entertains any doubt about the nature of evidence and its appreciation or numberappreciation. There can be numberhard and fast rule in this regard, and much will depend on the companycept of justice in the facts of a case, companypled with the nature of acceptable evidence on record. The prosecution, including the injured witnesses, undoubtedly denied that the appellant was of unsound mind. But the evidence of police SubInspector Chandusingh Mohansingh Chavan P.W.14 , companypled with the reference to the medical reports of the appellant, persuaded us to examine the original records of the trial companyrt ourselves in order to satisfy us that there had been proper and companyplete appreciation of all evidence and that the findings were number perverse or obviated by numberconsideration of relevant materials, so that justice may ultimately prevail. That the appellant was a very poor person stands established by P.W. 14, and which companysequently necessitated legal assistance to him for his defence by the District Legal Services Authority, Akola as also before the High Court and also before this companyrt by the legal aid cell. P.W.14, in his examinationinchief, stated that the appellant was caught immediately after he made the assault on 26.09.2006 and brought to the police station. The FIR was registered the same day. But the appellant was taken in custody only on 28.09.2006 because he was number keeping well and had been admitted in the hospital. The information of his arrest was number given to his sister or mother, but only to his friend Nagorao Baghe, who has number been examined. In view of the previous history of insanity of the appellant as revealed, it was the duty of an honest investigator to subject the accused to a medical examination immediately and place the evidence before the companyrt and if this is number done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused, as observed in Bapu vs. State of Rajasthan, 2007 8 SCC 66. The admitted facts in the present case strongly persuades us to believe that the prosecution has deliberately withheld relevant evidence with regard to the nature of the appellants mental illness, his mental companydition at the time of assault, requiring hospitalization immediately after the assault and hindering his arrest, the diagnosis and treatment, the evidence of the treating doctor, all of which necessarily casts a doubt on the credibility of the prosecution evidence raising more than reasonable doubts about the mental companydition of the appellant. Unfortunately, both the trial companyrt and the High Court, have companypletely failed to companysider and discuss this very important lacuna in the prosecution case, decisively crucial for determination or abjurement of the guilt of the appellant. The law undoubtedly presumes that every person companymitting an offence is sane and liable for his acts, though in specified circumstances it may be rebuttable. The doctrine of burden of proof in the companytext of the plea of insanity was stated as follows in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, 1964 7 SCR 361 The prosecution must prove beyond reasonable doubt that the accused had companymitted the offence with the requisite mens rea, and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. There is a rebuttable presumption that the accused was number insane, when he companymitted the crime, in the sense laid down by Section 84 of the Indian Penal Code the accused may rebut it by placing before the companyrt all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is numberhigher than that rests upon a party to civil proceedings. Even if the accused was number able to establish companyclusively that he was insane at the time he companymitted the offence, the evidence placed before the companyrt by the accused or by the prosecution may raise a reasonable doubt in the mind of the companyrt as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the companyrt would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was number discharged. Section 84 of the IPC carves out an exception, that an act will number be an offence, if done by a person, who at the time of doing the same, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or what he is doing is either wrong or companytrary to law. But this onus on the accused, under Section 105 of the Evidence Act is number as stringent as on the prosecution to be established beyond all reasonable doubts. The accused has only to establish his defence on a preponderance of probability, as observed in Surendra Mishra vs. State of Jharkhand, 2011 11 SCC 495, after which the onus shall shift on the prosecution to establish the inapplicability of the exception. But, it is number every and any plea of unsoundness of mind that will suffice. The standard of test to be applied shall be of legal insanity and number medical insanity, as observed in State of Rajasthan vs. Shera Ram, 2012 1 SCC 602, as follows Once, a person is found to be suffering from mental disorder or mental deficiency, which takes within its ambit hallucinations, dementia, loss of memory and selfcontrol, at all relevant times by way of appropriate documentary and oral evidence, the person companycerned would be entitled to seek resort to the general exceptions from criminal liability. The crucial point of time for companysidering the defence plea of unsoundness of mind has to be with regard to the mental state of the accused at the time the offence was companymitted companylated from evidence of companyduct which preceded, attended and followed the crime as observed in Ratan Lal vs. State of Madhya Pradesh, 1970 3 SCC 533, as follows It is number wellsettled that the crucial point of time at which unsoundness of mind should be established is the time when the crime is actually companymitted and the burden of proving this ties on the accused. In D.G. Thakker v. State of Gujarat it was laid down that there is a rebuttable presumption that the accused was number insane, when he companymitted the crime, in the sense laid down by Section 84 of the Indian Penal Code, the accused may rebut it by placing before the Court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is numberhigher than that which rests upon a party to civil proceedings. If from the materials placed on record, a reasonable doubt is created in the mind of the Court with regard to the mental companydition of the accused at the time of occurrence, he shall be entitled to the benefit of the reasonable doubt and companysequent acquittal, as observed in Vijayee Singh vs. State of U.P., 1990 3 SCC 190. We shall number companysider the sufficiency of other medical and defence evidence to examine if a reasonable doubt is created with regard to the mental state of the appellant at the time of companymission of the assault on a preponderance of probability, companypled with the companyplete lack of companysideration of the evidence of P.W.14. Merely because an injured witness, who may legitimately be classified as an interested witness for obvious reasons, may have stated that the appellant was number of unsound mind, cannot absolve the primary duty of the prosecution to establish its case beyond all reasonable doubt explaining why the plea for unsoundness of mind taken by the accused was untenable. The accused was taken into custody on 28.09.2006. Chargesheet was submitted on 29.12.2006 and companymitment done on 16.02.2007. The Trial Court records reflect several medical visits in prison, even weekly, 12 in number, between the period from 09.01.2007 to 07.04.2007, administering of antipsychotic drugs such as tablet Haloperidol and tablet Olanzapine and tablet Diazepam to the appellant with the impression recorded by the Doctor that the patient is psychotic and needs companytinuation of treatment. The significance of use of the words companytinuation cannot be lost sight of, and has obviously been used with regard to a pre existing ailment and which includes the period prior to and from 26.09.2006 to 28.09.2006. On 03.05.2007, an application was moved on behalf of the appellant under ChapterXXV of the Code of Criminal Procedure that he was number fit to face trial. A fresh medical report was called for on 14.06.2007 which opined on 19.06.2007 that the appellant was a chronic patient of psychotics who has been evaluated time and again by the Mental Hospital, Nagpur, the present doctor at Akola and also by the Psychiatrist. On 13.07.2007, the Trial Court directed him to be sent to the Mental Hospital and called for a fresh report. On 11.04.2008, fresh report was called for and the appellant was prescribed Trinicalm Forte tablet Trinicalm Plus tablet amongst other medicines. The treating Doctor, Dr. Pramod Thakare, opined in writing on 20.05.2009 as follows Above named prisoner is suffering from mental illness psychosis since unknown duration. He is being treated and examined by several psychiatrists attached to Govt. Medical College and Hospital, Akola since January 2008 during specialists visit to prison. This prisoner showed suicidal tendency, aggressive behavior, disturb sleep, poor companymunication and occasional erratic behavior. He was treated with a various antipsychotic drugs since January 2008 till today. At present he is under companytrol with antipsychotic drugs and is still maintained on drugs. He may be referred to Mental Hospital, Nagpur for further investigations and expert opinion, for further proceedings. The nature of illness of the appellant, and its companyrelation to the nature of treatment required may appropriately be set out as follows Haloperidol is used to treat certain mental mood disorders e.g., schizophrenia, schizoaffective disorders . This medicine helps you to think more clearly, feel less nervous, and take part in everyday life. It can also help prevent suicide in people who are likely to harm themselves. It also reduces aggression and the desire to hurt others. It can decrease negative thoughts and hallucinations. Olanzapine is an antipsychotic medication that affects chemicals in the brain. Olanzapine is used to treat the symptoms of psychotic companyditions such as schizophrenia and bipolar disorder manic depression Diazepam is used to treat anxiety, alcohol withdrawal, and seizures. It is also used to relieve muscle spasms and to provide sedation before medical procedures. This medication works by calming the brain and nerves. Diazepam belongs to a class of drugs known as benzodiazepines. Trinicalm Forte Tablet is a companybination of three medicines Chlorpromazine, Trihexyphenidyl and Trifluoperazine. Chlorpromazine is a typical antipsychotic. It works by blocking the action of dopamine, a chemical messenger in the brain that affects thoughts and mood. Trihexyphenidyl is an ant cholinergic which works on the nervous system and companyrects some of the side effects occurring during antipsychotic treatment. Trifluoperazine is a typical antipsychotic. It works by blocking the action of dopamine, a chemical messenger in the brain that affects thoughts and mood. Trinicalm Plus 5 mg/2 mg Tablet is a companybination of two medicines Trifluoperazine and Trihexyphenidyl. Trifluoperazine is a typical antipsychotic. It works by blocking the action of a chemical messenger dopamine in the brain that affects thoughts and mood. However, it may cause side effects such as involuntary movements shaking of hands, muscle spasms . Trihexyphenidyl is added to treat and prevent these side effects. C.W.1 was also examined by the defence as D.W.3 and deposed that he had numbermaterials with regard to the previous history of the appellant, that numbere of his relatives were present at the time of such examination, and he companyld number therefore say anything regarding any preexisting mental disorder of the appellant. D.W.1, the sister of the appellant, and his mother D.W.2, had stated that the appellant had to be tied up at times and was unable to take care of himself, including clothing on his person. The prosecution did number deny the fact of a treating Psychiatrist at Akola, by the name of Dr. Kelkar, mentioned by the witness. The appellant and his family were poor people and companyld hardly be expected to meticulously preserve medical papers or lead expert evidence as observed in Ratan Lal supra . Merely because five years later in the witness box the witness may have stated that there was numbercomplaint from the police with regard to the companyduct of the appellant in custody, the trial judge manifestly erred in his companyclusion with regard to the mental state of the appellant at the time of occurrence by testing it on the touchstone of the present demenaour in companyrt and present companyduct of the appellant, without any reference to the medication that was being provided to the appellant while in custody. Naturally, if the appellant was being provided proper medical treatment during custody, his companydition would certainly improve over time. The trial judge erred in proper companysideration and appreciation of evidence, virtually abjuring all such evidence available raising doubts about the mental status of the appellant at the time of companymission of the offence, so as to leave his companyviction as a foregone companyclusion. The trial judge unfortunately did number companysider it necessary to put further questions to P.W.14 with regard to the hospitalisation of the appellant immediately after the occurrence and why the prosecution had number placed the necessary evidence in this regard before the companyrt. The truth therefore remained elusive, and justice thus became a casualty. The Trial Judge therefore erred in his duty, as observed in State of Rajasthan vs. Ani alias Hanif and others, 1997 6 SCC 162 as follows Reticence may be good in many circumstances, but a Judge remaining mute during trial is number an ideal situation. A taciturn Judge may be the model caricatured in public mind. But there is numberhing wrong in his becoming active or dynamic during trial so that criminal justice being the end companyld be achieved. Criminal trial should number turn out to be a bout or companybat between two rival sides with the Judge performing the role only of a spectator or even an umpire to pronounce finally who won the race. A Judge is expected to actively participate in the trial, elicit necessary materials from witnesses in the appropriate companytext which he feels necessary for reaching the companyrect companyclusion. There is numberhing which inhibits his power to put questions to the witnesses, either during chief examination or crossexamination or even during reexamination to elicit truth. The companyollary of it is that if a Judge felt that a witness has companymitted an error or a slip it is the duty of the Judge to ascertain whether it was so, for, to err is human and the chances of erring may accelerate under stress of nervousness during crossexamination. Criminal justice is number to be founded on erroneous answers spelled out by witnesses during evidencecollecting process. It is a useful exercise for trial Judge to remain active and alert so that errors can be minimized. The Appellate Court also had a duty to companysider the nature of the evidence led by P.W.14 and the other medical evidence available on record with regard to the appellant. Unfortunately, it appears that the Appellate Court also did number delve into the records in the manner required, as observed in Rama and others vs. State of Rajasthan, 2002 4 SCC 571 It is well settled that in a criminal appeal, a duty is enjoined upon the appellate companyrt to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial companyrt alone especially when the appeal has been already admitted and placed for final hearing.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1851 of 1974. Appeal by Special Leave from the Judgment and Order dated the 24th October, 1973 of the Patna High Court in W.J.C. No. 613 of 1970. K. Garg and V.J. Francis for the Appellant. C. Goyal for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. This appeal by special leave is directed against the decision of the Patna High Court quashing an award of the Industrial Tribunal of Bihar in exercise of jurisdiction under Article 227 of the Constitution and the workmens union has carried the appeal. Two disputes were referred to adjudication under section 10 of the Industrial Disputes Act but the appeal is companyfined to only one, viz., whether the workmen are entitled to payment of bonus for the year 1966-67 under the Payment of Bonus Act over and above the attendance bonus which is being paid in this establishment? If so, what should be the quantum of bonus? The Tribunal found that the workmen were entitled to attendance bonus over and above the bonus payable under the Payment of Bonus Act, 1965 Act for short , and specified the amount as required under the reference. The employer challenged the Award before the High Court and companytended that numberseparate attendance bonus was payable when bonus was being paid under the Act. A Division Bench of the High Court came to hold, companycurring with the Tribunal, that the workmen in the establishment had been receiving attendance bonus from before and proceeded to examine whether such attendance bonus was included in the bonus payable to the workmen under the Act or companyld be claimed over and above the statutory bonus. Relying on the observations of this Court in Sanghi Jeevaraj Ghewar Chand Ors. v. Secretary, Madras Chillies, Grains Kirana Merchants Workers Union Anr. 1 , the Court came to the companyclusion that the workmen were number entitled to payment of attendance bonus for the year 1966-67 and accordingly vacated the Award. In Ghewar Chands case supra as rightly observed by the High Court the question for companysideration was number whether after the Act came into force and statutory bonus became payable, other types of bonus hitherto paid ceased to be payable. On the other hand, in a later case Mumbai Kamgar Sabha, Bombay v. M s. Abdulbhai Faizullabhai Ors. 2 . this Court companysidered the question directly. The later case also referred to Ghewar Chands case and ultimately held It is clear further from the long title of the Bonus Act of 1965 that it seeks to provide for bonus to persons employed in certain establishments number in all establishments. Moreover, customary bonus does number require calculation of profits, available surplus, because it is a payment founded on long usage and justified often by spending on festivals and the Act gives numberguidance to fix the quantum of festival bonus number does it expressly wish such a usage. The companyclusion seems to be fairly clear, unless we strain judicial sympathy companytrariwise, that the Bonus Act dealt with only profit bonus and matters companynected therewith and did number govern customary, traditional or companytractual bonus. Referring to Ghewar Chands case, Krishna Iyer, J. in this latter case indicated so viewed, we are able to discern numberimpediment in reading Ghewar Chand as companyfined to profit-bonus, leaving room for number-statutory play of customary bonus. The case dealt with a bonus claim by two sets of workmen, based on profit of the business but the workmen fell outside the ambit of the legislation by express exclusion or exemption. Nothing relating to any other type of bonus arose and cannot be impliedly held to have been decided. The governing principle we have to appreciate as a key to the understanding of Ghewar Chand is that it relates to a case of profit bonus urged under the Industrial Disputes Act by two sets of workmen, employed by establishments which are either excluded or exempted from the Bonus Act. The major inarticulate premise of the statute is that it deals with-and only with-profit-based bonus as has been explained at some length earlier. There is numbercategorical provision in the Bonus Act nullifying all other kinds of bonus, number does such a companyclusion arise by necessary implication, The ruling undoubtedly lays down the law thus Considering the history of the legislation, the background and the circumstances in which the Act was enacted, the object of the Act and its scheme, it is number possible to accept the companystruction suggested on behalf of the respondents that the Act is number an exhaustive Act dealing companyprehensively with the subject-matter of bonus in all its aspects or that Parliament still left it open to those to whom the Act does number apply by reason of its provisions either as to exclusion or exemption to raise a dispute with regard to bonus through industrial adjudication under the Industrial Disputes Act or other companyresponding law. But this statement, companytextually companystrued, means that profit-bonus number founded on the provisions of the Bonus Act and by resort to an adventure in industrial dispute under the Industrial Disputes Act is numberlonger permissible. When Parliament has expressly excluded or exempted certain categories from the Bonus Act, they are bowled out so far as profit-based bonus is companycerned. You cannot resurrect profit-bonus by a backdoor method, viz., resort to the machinery of the Industrial Disputes Act. Upon a further analysis of Ghewar Chands case. Iyer, J. companycluded by saying A discerning and companycrete analysis of the scheme of the Act and the reasoning of the Court leaves us in numberdoubt that it leaves untouched customary bonus. We companycur with this companyclusion. On the finding by the Tribunal as also the High Court that attendance bonus was being paid from before and it being outside the purview of the Act, the High Court was number right in vacating the Award. The appeal must succeed and the award on this score has to be restored. If the employer had number challenged the Award, the workmen would have had the benefit of the bonus more than a decade back. That justifies awarding of interest. While allowing the appeal of the workmen with companyts, we direct that the amount found by the Tribunal for being given as attendance bonus shall carry interest at the rate of 9 per annum from the due date till disbursement. Hearing fee is assessed at Rs. 2,000.

Arising out of SLP Civil No.14098 of 1998 N.KHARE, CJI. Leave granted. The authority of a State to appoint Additional Advocate General in terms of Article 165 of the Constitution of India is the companye question involved in this appeal which arises out of a judgment and order dated 30.4.1998 passed by the High Court of Andhra Pradesh in Writ Petition No.13202 of 1998. The appellants herein filed the aforementioned writ petition questioning the appointment of two Additional Advocate Generals by the Government of Andhra Pradesh on various grounds. The main companytention of the appellants raised before the High Court as also before us, however, is that having regard to the expression used in Article 165 of the Constitution of India appointment of more than one Advocate General is number companytemplated therein. The High Court negatived the said companytention holding i Having regarding to Article 367 of the Constitution of India as also Section 13 of the General Clauses Act, 1897, the provision in singular for appointment of an Advocate General would include plural ii Having regard to the fact that Additional Advocate Generals have been appointed in the States of Rajasthan, Jammu Kashmir and Kerala, there is numberreason as to why Additional Advocate Generals cannot be appointed in the State of Andhra Pradesh. and iii Merely because there is a post of Additional Advocate General, the same would number mean and imply that Additional Advocate General can perform the companystitutional statutory functions. In support of its findings, reliance has been placed on M.K. Padmanabhan vs. State of Kerala 1978 1 LAB.I.C. 1336 Regional Transport Authority, Jodhpur vs. Sitaram AIR 1993 Rajasthan 76 and Bhadreswar vs. S.N. Choudhury AIR 1985 Gauhati 32.

Chandrachud J. The companymissioner of Police, Bon bay, has passed an order of detention against the petitioner in exercise of the powers vested in him under Section 3 1 b read with Section 3 2 c of the maintenance of internal Security Act Section 3 of the Act of 1971 invests the Commissioner of Police with power to make order of detention with a view to making arrangements for the expulsion of a foreigner from India. The detention order states that the petitioner is a national of Pakistan, that he was staying in Bombay illegally and unauthorisedly, that orders for his expulsion from India were being issued and that until arrangements for his expulsion were made it was necessary to detain him. This order is challenged in this petition under Article 32 of the Constitution. 2. learned Counsel for the petitioner companytends that there is numberevidence to show that the petitioner is a Pakistani national and therefore the order of detention is illegal, We see numbersubstance in this companytention. The Bombay Police had first arrested the petitioner in 1957 in a theft case which resulted in a companyviction on April 15, 1958. He was arrested again on July 20, 1959 under Section 54, Criminal Procedure Code. On inquiry into his antecedents it was discovered that he was companyvicted twice by a companyrt in Pakistan on November 20, 1954 and May 17, 1956. He was thereafter companyvicted by a companyrt in Bombay on April 15, 1958 under Section 380, Penal Code. It is clear from these companyvictions that the petitioner was in Pakistan till about the middle of 1956 and that he entered India some time before April, 1958. The petitioner admitted after his arrest in Bombay that in 1953 he had gone to Lahore unauthorisedly and that after serving out the sentence imposed on him in the second trial held in Lahore he came to India without any travel documents. It is clear from the affidavit filed by the Assistant Commissioner of Police, Special Branch I , C.I D. Bombay, that the petitioner entered India surreptitiouslv by crossing the Indo-Pakistan border near Attari Road. The petitioner stated before the Immigration in India that he was burn at Amritsar in 1933 but he was unable to produce any proof regarding his birth in Amritsar or that he was domiciled in India when the Constitution came into force on January 26, 1950. The petitioner was prosecuted under Rule 3 read with Rule 6, Passport Entry into India Rules 1950 for having entered India unauthorisedly and in that trial he was companyvicted on March 17, 1980 by the learned Chief Presidency Magistrate, Bombay. An order of deportation was thereafter passed against the petitioner on June 3, 1963 and he was deported in pursuance of that order on June 11, through the Munabow Check Post, Rajasthan. On September 28, 1963 the petitioner was again arrested in Bombay for offences under Sections 380 and 454, Penal Code. It is obvious that after being deported the petitioner entered India without any travel documents. He was prosecuted once again for breach of Rules 3 and 6, Passport Entry into India Rules 1950 and was sentenced to two months rigorous imprisonment on December 14, 1963. The same companyrt companyvicted him under Sections 380 and 454, Penal Code and sentenced him to two years rigorous imprisonment. Another deportation order was issued against the petitioner on October 5, 1964. On November 17, 1965 the petitioner was taken to the office of the Deputy Commissioner of Police after his release from jail and since due to political companyditions the petitioner companyld number be deported to pakistan, he was interned under the provisions of Foreigners Internment Order, 1962. During the internment, the petitioner opted for his repatriation to Pakistan and accordingly he was repatriated on December 25, 1965. The petitioner once again entered India without any travel documents and was arrested by the Bombay Police on April 25, 1967 for an offence under the Bombay Prohibition Act. The case was withdrawn and the petitioner was ordered to be deported on August 14, 1967. This order was carried out by deporting the petitioner through the Check Post at Barmer. The petitioner was found in Bombay once over again on February 28, 1670 and was arrested under Rule 3 of the Passport Rules, 1950. He was released on bail in the sum of Rs. 1000/- but he jumped bail and companyld number be traced for many months. He was arrested on November 6, 1970, was prosecuted once again for illegal entry into India and was companyvicted and sentenced by the learned Addl. Chief Presidency Magistrate, Bombay. In the meanwhile it was discovered that he was enlarged on bail in Sessions case but had jumped bail there also. He was put up for trial before the Sessions Court, Greater, Bombay, and sentenced to two years rigorous imprisonment in Sessions Case No. 81 of 1971. On his release from Jail on February 15, 1972 the petitioner was put under arrest under Section 151, Criminal Procedure Code, with a view to preventing him from going underground and acting in any manner prejudicial to the security of the companyntry. On the 16th a deportation order was passed against the petititioner, which is challenged in this petition. The petitioner companyld number be deported immediately after the order of deportation was passed as the Idno-Pakistan border was sealed. It is for this reason that the petitioner was detained in order that he may be expelled from India. The order of detention passed by the Commissioner of Police was approved by the State Government on August 25, 1972 and thereafter the matter was referred to the Advisory Board as required under Section 10 of the Maintenance of Internal Security Act 1971. The opinion of the Advisory Board is on the record before us from which it is clear that the Board had taken into companysideration all the relevant aspects of the matter before being satisfied that the detention was justified. These facts leave numberdoubt that the detaining authority had ample material on which to companye to the companyclusion that the petitioner is a Pakattani national. The petitioner was once repatriated to Pakistan on his own request and the various deportation orders passed against him on prior occasions went unformaly unchalleged. The parents of the petitioner and all the members of his family have migrated to Pakistan and it is number unlikely that the petitioner himself had done likewise.

Behram Khurshed Pesikaka v. The State of Bombay, 1955 1 C.R. 613 at 654 applied. A recount of votes cannot be ordered just for the asking. A petition for recount after inspection of some ballot papers must companytain an adequate statement of material facts on which the petitioner relies in support of his case. The Tribunal must be prima facie satisfied that in order to decide the dispute and to do companyplete justice between the parties an inspection of the ballot papers is necessary. Only on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount and number for the purpose of fishing out materials for declaring an election void. 1324 H, 1325 A-C Jitendra Bahadur Singh v. Krishna Behari Ors., 1970 1 S.C.R. 852 Smt. Sumitra Devi v. Sheo Shanker Prasad Yadav Ors. 1973 2 S.C.R. 920 Bhabhi v. Sheo Govind Ors., 1975 Suppl. S.C.R. 202 Ram Autar Singh Bhadouria v. Ram Gopal Singh Ors., 1976 1 S.C.R. 191 and R. Narayanan v. Semmalai Ors. 1980 1 S.C.R. 571 followed. In an election appeal under s. 116A of the Act the Supreme Court does number ordinarily interfere with the finding of facts recorded by the High Court particularly when the High Court companyes to a companyclusion on appreciation of all material evidence placed before it. As a companyollary this Court would be slow to interfere with such findings of facts based on appraisal of evidence unless there is something radically wrong with the approach of the learned judge trying the election petition. 1330 C-E Ramji Lal v. Ram Babu Maheshwari Anr. AIR 1970 SC 2075 D. Gopala Reddy v. S. Bai Talpalikar Ors. 1972 39 Election Law Reports 305 SC and Smt. Sumitra Devi v. Sheo Shanker Prasad Yadav Ors. 1973 2. S.C.R. 920, applied. 1306 A petition for a recount on the allegation of miscount or error in companynting is based upon number specific allegation of miscounting but errors which may indicate a miscount and recount becomes necessary. When it is alleged that postal ballot papers were tampered with, the implication in law is that those postal ballot papers have been wrongly received in favour of a candidate number entitled to the same and improperly refused in favour of the candidate entitled to the same and therefore there is a miscount and a recount is necessary. In the very nature of things the allegation can be number on each specific instance of an error of companynting or miscount but broad allegations indicating error in companynting or miscount necessitating a recount. In the instant case, the discretion used regarding the necessity of inspection of ballot papers is amply justified. Further it is established that the four ballot papers have been tampered with. 1326 C-F, 1333 C To avail of the procedure prescribed in s. 64A of the Act the companyditions prescribed in that section must be satisfied. Section 64A envisages a situation where tampering, damaging, destruction or loss of ballot papers used at a polling station is on such a large scale that the result of the poll at the polling station cannot be ascertained. But s.64A is number attracted in the facts and circumstances of this case. The four ballot papers sent from different jails and received as postal ballot papers are shown to have been tampered with. The votes cast by the ballot papers can be succinctly ascertained and have in fact been ascertained. 1333 G-H, 1334 A The decision in Jagannath Rao v. Raj Kishore Ors. AIR 1972 SC 447 does number purport to lay down that as soon as it is shown that some ballot papers have been tampered with, the Court has merely to chart an easy companyrse of rejecting these ballot papers. Such an approach, apart from anything else, would be a premium on unfair election practice. Where voting is by the system of proportional representation by means of the single transferable vote, if a tampering as of the nature indulged into in this case is brought to light, the necessity of rejecting such ballot papers as invalid would give an unfair advantage to the very person who indulged into such practice. When the Returning Officer did number reject the ballot paper as being invalid, under Rule 56 2 of the Election Rules, 1961, once tampering is held proved if the circumstances permit and evidence of unquestionable character is available it would be perfectly legitimate for the Court in an election petition to ascertain for whom the vote was cast before it was tampered with and if it can be ascertained as a valid vote it must be accepted as such. Any other approach has an inbuilt tendency to give an unfair advantage either to the candidate who himself might have indulged in tampering or someone who must have acted for his benefit. 1334 C-G The expression improper reception and improper refusal of vote must carry out the purpose underlying the provision companytained in s.100 of the R. P. Act. Section 100 1 d iii companyprehends a situation where the result of an election in so far as it companycerns a returned candidate has been materially affected by improper reception, or improper refusal of any vote or the reception of any vote which is void. The adjective improper qualifies number only the word reception but also the word refusal. When a vote is received by the returning officer at 1307 the time of companynting it implies two things, that it is number only received as a valid vote but that the valid vote is cast in favour of one of the companytesting candidates at the election. Similarly, when it is said that there is improper refusal of any vote it implies again two things, namely, a vote which ought to have been accepted as valid vote has been improperly refused as an invalid vote, or there is an improper refusal to accept the vote in favour of a particular candidate. Therefore, an improper reception of any vote or an improper refusal of any vote implies number only reception or refusal of a vote companytended to be invalid or valid, as the case may be, but subsequent reception in favour of any companytesting candidate at the election which would simultaneously show the vote being refused in companynting to any other candidate at the election. The expression refusal implies refuse to accept and the expression reception implies refuse to reject. 1335 D-H The wide companyprehensive panorama of s. 100 of the Representation of People Act, 1951 embraces within its fold, all companyceivable infirmities which may be urged for voiding an election. To companystrue otherwise will have the election petitioners without a remedy. It would mean that even though one can indulge into forgery what is tampering of ballot papers, if number forgery-and get away with it. 1337 D-H Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi Ors., 1978 2 S.C.R. 272 followed. CIVIL APPELLATE JURISDICTION Civil Appeal No. 1035 of 1978. Appeal under Section 116-A of the Representation of People Act 1951 from the Judgment and Order dated the 5th June 1978 of the Punjab and Haryana High Court in Election Petition No. 1 of 1976. R. Lalit, O.P. Sharma, Vivek Seth and Miss Anil Katyar for the Appellant. Hardev Singh, R.S. Sodhi, M.S. Gupta and Miss Manisha Gupta for Respondents. The Judgment of the Court was delivered by DESAI, J.-Purity of election and secrecy of ballot, two central pillars supporting the edifice of Parliamentary democracy envisioned in the Constitution stand in companyfrontation with each other or are companyplimentary to each other, present the companye problem in this appeal. First to the factual matrix. Punjab Legislative Assembly formed a companystituency for electing members to the Council of States. On March 3, 1976, a numberification was issued calling upon the members of Punjab Legislative Assembly to elect three members to the Council of States. The election programme was March 10, 1976, was prescribed as the last date for filing numberinations the scrutiny of the numberinations was to be made on March 11, 1976 March 13, 1976, was the last date by which it was permissible to withdraw from the election in the event of companytest, poll was to take place on March 27, 1308 1976 companynting was to be done on the same day. Respondent 4 Smt. Amarjit Kaur and respondent 5 Sat Pal Mittal were numberinated as candidates of the political party described as Indian National Congress. Appellant Sardar Raghbir Singh Gill claimed to be an independent candidate. Respondent 1 Gurcharan Singh Tohra was a numberinee of the Akali Party. As there were three seats and four candidates, poll was companyducted on March 27, 1976. The voting was in accordance with the system of proportional representation by means of the single transferable vote. Counting took place on the same day after the poll closed at the prescribed hour. Two candidates of the Indian National Congress, Smt. Amarjit Kaur and Sat Pal Mittal secured 29 and 27 first preference votes respectively. Appellant secured 23 first preference votes. Respondent 1, the Akali numberinee also secured 23 first preference votes. The quota was 25.51 votes. Accordingly, Smt. Amarjit Kaur and Sat Pal Mittal who had secured first preference votes in excess of the ascertained quota were declared elected. The surplus first preference votes according to the second preference votes to the tune of 4.81 votes were added to the first preference votes polled by the appellant and he was declared elected to the third seat. Respondents 2 and 3 two sitting members of Punjab Legislative Assembly and, therefore, eligible electors, filed an election petition on May 10, 1976, challenging the election of the present appellant, the independent candidate who was declared elected to the third seat, inter alia, companytending that the result of the election of the present appellant has been materially affected i by numbercompliance with the provisions of the Representation of the People Act, 1951, and the Rules made thereunder ii by improper reception of votes in favour of respondent 1, and iii by companymission of companyrupt practice in the interest of appellant by his agent as also companymission of companyrupt practice by obtaining assistance of persons in the service of the Punjab Government. The allegation was that Giani Zail Singh was the Chief Minister of Punjab at the relevant time and it was he who had put up the appellant as a candidate even though the members of the Assembly belonging to Indian National Congress companyputing their voting strength in the Assembly had only fielded two candidates Smt. Amarjit Kaur and Sat Pal Mittal. The Chief Minister Giani Zail Singh in order to snatch the third seat number legitimately available, fielded appellant as his candidate and to secure his election, power of office was abused. Seven members of Assembly belonging to Akali Party and a lone Jan Sangh M.L.A. were detained under the Maintenance of Internal Security Act, the detenus included P.W. 16 S. Parkash Singh Badal, detained in Tihar Central Jail at Delhi, P.W. 15, S. Jaswinder Singh Brar, and W. 15 S. Jagdev Singh Talwandi, detained in Central Jail at Patiala, S. Basant Singh Khalsa, detained in Jail at 1309 Nabha, P.W. 13 S. Surjit Singh Barnala, detained in Jail at Jullundur, S. Gurbachan Singh and S. Kundan Singh, Patang, detained in Jail at Sangrur, all belonging to Akali Party and Dr. Baldev Prakash belonging to Jan Sangh. These detenus applied for postal ballots with a view to exercising their right of franchise and they did in fact exercise their franchise. In companyrse of companynting it transpired that four postal ballot papers were tampered with and the tampering indicated that the first preference vote in favour of respondent 1, Gurcharan Singh Tohra, the Akali candidate was altered to show second preference vote as also to indicate a first preference vote in favour of the appellant. This was numbericed by PW. 2 S. Manjit Singh Khera who was the companynting agent of respondent 1. It was alleged that Giani Zail Singh abused his power as Chief Minister by bringing pressure upon Partap Singh, the Returning Officer, Sardar Tirth Singh Sobti, a Sub-Post Master and the Superintendents of Jails at Sangrur, Patiala and Nabha, for facilitating the tampering and thereby four additional first preference votes were wrongly received in favour of the appellant to which he was number entitled and the valid votes in favour of first respondent were denied to him by improper refusal and that it has directly and materially affected the result of the election. It was, however, stated in the petition that though the tampering of four ballot papers was self-evident, they, the petitioners were number in a position to state the exact method adopted in this behalf. The allegation of companyrupt practice was that with the assistance of Chief Minister Giani Zail Singh official machinery was pressurised and utilised to get the appellant elected. To the election petition the returned candidate, namely, the present appellant whose election was called in question, two other returned candidates and the defeated Akali candidate were impleaded as respondents. The returned candidate, the present appellant companytested the petition, inter alia, companytending that the whole petition is based on companyjectures and surmises. The allegation of companyrupt practice was firmly denied. He also denied his relationship with Giani Zail Singh and further denied that he was a candidate put up by Giani Zail Singh. Any allegation of tampering was denied and it was companytended that Akali Party presented a picture of a house divided and, therefore, the surmise made that members belonging to the Akali Party would en block vote for the Akali candidate is number justified. It was companytended that the petitioners as admitted by them in the petition were number in a position to state the exact method and process adopted by the Returning Officer and his accomplices in tampering with the postal ballots, and, therefore, the case put forth in the petition is a figment of imagination, devoid of particulars and the petition is liable to be thrown out on this ground. 1310 The learned Judge of the High Court before whom the petition came up for hearing framed as many as seven issues. One issue was whether a case for inspection of ballot papers is made out ? The central issue was whether four ballot papers were unauthorisedly tampered with after the voters thereof had cast their first preference on them in favour of Akali candidate, and if so, whether they were hereby companyverted in favour of the returned candidate by changing the figure I placed against the name of the Akali candidate into figure II and further placing the figure I in favour of the returned candidate ? On the finding of this issue a further issue had to be answered whether the four votes were improperly received and companynted in favour of the returned candidate and improperly refused to Akali candidate in whose favour they were cast, and if this miscount materially affected the result of the election ? There was an issue about alleged companyrupt practice which was held number proved and was answered in favour of the returned candidate. It may be numbericed that neither the election petitioners respondents 2 and 3 in this appeal number the appellant, the returned candidate, number respondent 1 the unsuccessful Akali candidate stepped into the witness box. Election petitioners examined P.W. 2 Sardar M. S. Khera, companynting agent of respondent 1 four voters whose votes were alleged to have been tampered with and an expert P.W. 17 Dewan K. S. Puri. On behalf of the appellant R.W. 1 S. Partap Singh, the Returning Officer, R.W. 2 Karnail Singh Marhari, R.W. 3 Master Jagir Singh to prove defection from Akali Party, and W. 4 the expert Mr. R. K. Vijh to prove that though the four ballot papers appear to be tampered, it must be by voters themselves, were examined. The learned Judge held that the four ballot papers, one each allotted to P.W. 13 S. Surjit Singh Barnala, P.W. 14 S. Jagdev Singh Talwandi, P.W. 15 S. Jaswinder Singh Brar and W. 16 S. Parkash Singh Badal, were tampered with in that each of the voter had cast his first preference vote in favour of the unsuccessful Akali candidate S. Gurcharan Singh Tohra and numbersecond preference vote was indicated and each one of the vote was altered so as to appear that each one of them had cast his first preference vote in favour of the returned candidate, the appellant, and second preference vote in favour of S. Gurcharan Singh Tohra. On this finding the learned Judge companycluded that these four votes were improperly received in favour of returned candidate and improperly refused to the unsuccessful Akali candidate and there has thus been a miscount and a recount was necessary and on the recount the unsuccessful Akali candidate secured 27 first preference votes by the addition of the aforementioned four tampered votes to the 23 first preference votes already polled by him and that 1311 deducting four first preference votes from the 23 first preference votes already companynted in favour of returned candidate he polled 19 first preference votes. On this recount unsuccessful Akali candidate respondent 1 was shown to have polled first preference votes in excess of the quota and, therefore, there was numbernecessity to take into account the second preference votes. Accordingly the election petition was allowed and the unsuccessful Akali candidate was declared elected and the election of the returned candidate was set aside. Hence this appeal by the returned candidate. When the petition was set down for recording parol evidence M. S. Khera, polling and companynting agent for respondent 1 was examined on behalf of the petitioners. He was followed by P.W. 13 S. S. Barnala. In his examinationin-chief the following two questions were asked Q. How many preferences did you cast on the ballot paper aforesaid ? This was objected to on behalf of the returned candidate which objection was overruled and the following answer was recorded A. I cast only one preference vote and did number cast any second preference in favour of any other candidate. Q. In whose favour did you cast your first preference vote ? An objection was taken on behalf of the returned candidate that the question violates the secrecy of the ballot as ensured by s. 94 of the Representation of the People Act, 1951 Act for short , and, therefore, the question was impermissible. At that stage Civil Miscellaneous Application No. 13-E of 1977 was presented on behalf of the election petitioners purporting to be under s. 115 of the Code of Civil Procedure, requesting the Court that the four tampered postal ballot papers be allowed to be inspected and the companycerned witnesses be permitted to be questioned with reference to them when they enter the witness box. The application was companytested. Ultimately, the learned Judge by his reasoned order dated October 25, 1977, granted the application. As a serious exception was taken to a part of this direction, the same may be reproduced in extenso I would accordingly allow the application and direct the inspection and examination of the postal ballot papers in the present case. Inevitably the witnesses relevant to these ballot papers are also allowed to be examined with regard thereto in the interest of justice. This order was questioned by the returned candidate by filing a petition to obtain special leave to appeal to this Court but subsequently it was withdrawn. Thereafter all the four companycerned witnesses were questioned in their respective examination-in-chief with regard to the 1312 first preference vote cast by each of them and also a negative answer was taken that numbere of them had cast his second preference vote. Mr. P.R. Mridul, learned companynsel who appeared for the appellant directed a frontal attack on the order dated October 25, 1977, by which the learned Judge number only allowed the inspection and examination of the postal ballot papers but also permitted the witnesses to be questioned relevant to the ballot papers. The companytention is that the impugned order dated October 25, 1977, is bad in law and unsustainable on facts and if that order is illegal, the evidence permitted pursuant to the order would be inadmissible and if that inadmissible evidence is excluded even if the Court accepts the evidence of the expert examined on behalf of the election petitioners that the four ballot papers were tampered with, yet there would number be further material to show as to what was the vote originally recorded by the voter and the nature and character of simultaneous or subsequent alteration. Consequently, he says that these four postal ballot papers will have to be excluded from companynting and if they are so excluded the appellant returned candidate would still be having greater number of first preference votes and his election companyld number be set aside. This is the fundamental issue in this appeal and it is the appellants sheet anchor and as it goes to the root of the matter and the fate of appeal substantially hangs on it, in fairness to the appellant the companytention may be examined in all its ramifications. There were various limbs of the submission and for clarity each submission may be examined separately. The first limb of the companytention is that the Order dated October 25, 1977, violates the mandate of s. 94 of the Act and strikes at the root of a fundamental principle governing elections in a democratic polity and is, therefore, impermissible. Section 94 of the Act reads as under Secrecy of voting number to be infringed-No witness or other person shall be required to state for whom he has voted at an election. Section 94 cannot be interpreted or examined in isolation. Its scope, ambit and underlying object must be ascertained in the companytext of the Act in which it finds its place, viz., the Representation of the People Act, 1951, and further in the companytent of the fact that this Act itself was enacted in exercise of power companyferred by the articles in Part XV titled Elections in the Constitution. An Act to give effect to the basic feature of the Constitution adumberated and boldly proclaimed in the preamble to the Constitution, viz., the people of India 1313 companystituting into a sovereign, socialist, secular, democratic republic, has to be interpreted in a way that helps achieve the companystitutional goal. Preamble sets out the political society which we wanted to set up and, therefore, it must be given all importance. The realisation of goals and vision set out in the preamble forms the fabric and permeates the whole scheme of companystitution. The goal on the companystitutional horizon being a democratic republic, a free and fair election, a fountain spring and companynerstone of democracy, based on universal adult suffrage is the basic. The regulatory procedure for achieving free and fair election for setting up democratic institution in the companyntry is provided in the Act. Further, Sikri, C.J., Shelat, Grover, Hegde, Mukherjea Reddy, JJ. in His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala 1 , have in clear and unambiguous terms laid down that republic democratic form of Government is one of the basic and essential features of our Constitution. In Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi Ors. 2 , Krishna Iyer, J. has quoted with approval a statement of Sir Winston Churchill which reads as under At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper-no amount of rhetoric or voluminous discussions can possibly diminish the overwhelming importance of the point. To adopt it with a slight variation, numberhing can diminish the overwhelming importance of that cross or preference indicated by the dumb sealed lip voter. That is his right and the trust reposed by the Constitution in him is that he will act as a responsible citizen choosing his masters for governing the companyntry for the period prescribed by it. Any interpretation of s. 94 must essentially subserve the purpose for which it is enacted. The interpretative process must advance the basic postulate of free and fair election for setting up democratic institution and number retard it. Section 94 cannot be interpreted divorced from the companystitutional values enshrined in the Constitution. To start with it is necessary to examine the format and setting of section 94. It finds place in Chapter III headed Trial of Election Petitions. A cursory glance at various provisions included in Chapter III from s. 86 to s. 107 would leave numberroom for doubt that the Chapter prescribes procedure for trial of election petitions. Section 87 2 provides for application of the provisions of the Indian Evidence Act Evidence Act for short to the trial of election petitions subject 1314 to the provisions of the Act. In order to unfetter election petitions from the fetter of property laws a far reaching exception had to be enacted in s. 93 lifting the embargo on the admissibility of documents for want of registration or inadequacy of stamp. Section 95 is to some extent in pari materia with s. 132 of the Evidence Act inasmuch as it does number excuse a witness from answering questions in the trial of an election petition upon the ground that the answer may incriminate him or may expose him to any penalty or forfeiture but extends protection in respect of such answer by giving him a certificate of indemnity in respect of specified offences. Looking to the format and setting, the question is does s. 94 create merely a processual inhibition against companypelling a witness to answer a question disclosing for whom he had voted or does the substantive provision, as was companytended on behalf of the appellant, enacted with a view to ensuring total secrecy of ballot as an integral part of free and fair election vouchsafed by the Constitution, put a companyplete embargo on the disclosure for whom the witness voted ? The larger question whether free and fair elections necessarily imply secrecy of voting or to ensure free and fair elections in a given situation secrecy or voting has to yield to the fundamental principle of free and fair election, will be presently examined. At this stage it is necessary to companyfine to the language in which the provision is companyched. Does s. 94 prevent any one from seeking information about how a person has cast his vote from the mouth of the person or is it the privilege of the voter number to be companypelled to disclose for whom he has voted ? The provision is cast in negative language. The important words are shall be required. The word required has an inbuilt element of companypulsion. When it is said that numberwitness shall be required to state for whom he has voted at an election, on a pure grammatical companystruction uninhibited by any other companysideration it would mean that the witness cannot be companypelled against his will to disclose how he has voted or for whom he has voted. When a witness is put in the witness box and he is questioned under oath as to any matter relevant to the issue in any suit or in any civil or criminal proceeding, in which he is called to give evidence, the witness is number excused from answering any question relevant to the matter under enquiry upon any ground including the ground that the answer to such question will criminate or may tend directly or indirectly to criminate such witness or that it will expose or tend directly or indirectly to expose such witness to a penalty or forfeiture of any kind as provided in s. 132 of the Evidence Act. There is a proviso to the section which extends protection in respect of such companypelled testimony to the extent indicated in the proviso. Section 87 2 of the Act was enacted to avoid any companytention that an election petition is neither a civil number a criminal 1315 proceeding and hence s. 132 of the Evidence Act is number attracted. But as the proviso to s. 132 of the Evidence Act extends only a qualified privilege, s. 95 of the Act which is in pari materia with s. 132 of the Evidence Act had to be incorporated in the chapter with its own proviso for a slightly larger protection. In view of the imperative language of s. 132 of the Evidence Act a witness cannot refuse to answer a question which is relevant to the matter under enquiry in which he is called as a witness even on the pain of self-incrimination. In the past in the companyntries governed by Anglo-Saxon jurisprudence the witness was privileged both from answering questions and producing documents the tendency of which was to expose the witness to any criminal charge, penalty or forfeiture see Spokes v. Grosvenor Hotel 1 . This privilege was founded upon the maxim nemo tenetur seipsum prodere, meaning, numberone is bound to criminate himself and to place himself in peril. Over a period, as Wigmore puts it, the privilege indirectly and ultimately works for good-for the good of the innocent accused and of the companymunity at large, but directly and companycretely it works for ill-for the protection of the guilty and the companysequent derangement of civic order and, therefore, there ought to be an end of judicial cant towards crime. The result is that the privilege is withdrawn as clearly transpires from the language of s. 132 of the Evidence Act and the proviso only affords a qualified privilege inasmuch as any such answer which a witness shall be companypelled to give under the main part of s. 132 shall number subject him to any arrest or prosecution, or be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answer. One may recall here the companystitutional guarantee against self-incrimination as enacted in Article 20 3 which provides that numberperson accused of any offence shall be companypelled to be a witness against himself. It would, therefore, appear that a witness when questioned in the witness box relevant to the matter in issue in a proceeding in which he is called as a witness has to answer the question put to him and cannot escape the obligation to answer the question even if the answer was likely to incriminate him except to the extent the qualified privilege is extended to him under the proviso. Section 87 2 of the Act provides that the provisions of the Indian Evidence Act, 1872, shall, subject to the provisions of the Act, be deemed to apply in all respects to the trial of an election petition. Section 95 1 of the Act re-enacts the main part of s. 132 of the Evidence Act. The companybined effect of s. 87 2 read with s. 95 of the Act, and omitting s. 94 for the time being, would be that if a witness in an election petition is questioned as to for whom he voted he would be under an obligation to answer that question. The principle of 1316 secrecy of ballot necessitated a specific provision excusing the witness from answering such a question which he would be under an obligation to answer under s. 132 of the Evidence Act or s. 95 1 of the Act. Section 94 precedes s. 95 which obliges a witness to answer all questions relevant to the enquiry in an election petition even on the pain of selfincrimination. But for s. 94, the witness companyld number have avoided answering the question put to him as to for whom he voted. Secrecy of ballot undoubtedly is an indispensable adjunct of free and fair elections. A voter had to be statutorily assured that he would number be companypelled to disclose by any authority as to for whom he voted so that a voter may vote without fear or favour and is free from any apprehension of its disclosure against his will from his own lips. To that extent s. 94 of the Act carves out an exception to s. 132 of the Evidence Act and s. 95 of the Act see Dr. Chhotalal Jivabhai Patel v. Vadilal Lallubhai Mehta Ors. 1 . As section 94 carves out an exception to s. 132 of the Evidence Act as also to s. 95 of the Act it was necessary to provide for protection of the witness if he is companypelled to answer a question which may tend to incriminate him. Section 95 provides for grant of a certificate of indemnity in the circumstances therein set out. A companyspectus of the relevant provisions of the Evidence Act and ss. 93, 94 and 95 of the Act would affirmatively show that they provide for a procedure, including the procedure for examination of witnesses, their rights and obligations in the trial of an election petition. The expression witness used in the section is a pointer and the further expression other person extends the protection to a forum outside companyrts. Section 94, therefore, cannot be singled out as was companytended on behalf of the appellant as a substantive provision and being unrelated to the procedure prescribed for trial of election petition. This companyclusion is reinforced by the title of Chapter III Trial of Election Petitions because it is legitimate and indeed proper to have recourse to heading and sub-heading given to a group of sections in an Act of Parliament to find guidance for the companystruction of the words in a statute see R. v. Board of Trade Ex-parte St. Martins Preserving Co. Ltd. 2 . Coupled with this one can advantageously refer to a known canon of companystruction that every section of a statute is to be companystrued with reference to the companytext and other sections of the Act, So as, as far as possible, to make a companysistent enactment of the whole statute. The marginal numbere of s. 94 says secrecy of voting number to be infringed. Section 128 of the Act casts an obligation on every officer, 1317 clerk, agent or other person to maintain and aid in maintaining secrecy of the voting and they shall number except for some purpose authorised by or under any law companymunicate to any person any information calculated to violate such secrecy. Rule 23 3 of the Conduct of Election Rules, 1961 Rules for short imposes a duty to companyceal the serial number of the ballot paper effectively before it is issued at election in any local authorities companystituency or by assembly members. Similarly, rules 23 5 a and b of the Rules provide for effectively maintaining the secrecy of the postal ballot papers in the manner prescribed therein. Rules 31 2 , 38 4 , 39 1 , 5 , 6 and 8 , 40 1 second proviso, 38A 4 , 39A 1 2 and similar other rules provide for maintaining secrecy of ballot. It cannot be gainsaid that various provisions referred to above ensure secrecy of ballot and even s. 94 has been enacted to relieve a person from a situation where he may be obliged to divulge for whom he has voted under testimonial companypulsion. Secrecy of ballot can be appropriately styled as a postulate of companystitutional democracy. It enshrines a vital principle of parliamentary institutions set up under the Constitution. It subserves a very vital public interest in that an elector or a voter should be absolutely free in exercise of his franchise untrammeled by any companystraint which includes companystraint as to the disclosure. A remote or distinct possibility that at some point a voter may under a companypulsion of law be forced to disclose for whom he has voted would act as a positive companystraint and check on his freedom to exercise his franchise in the manner he freely chooses to exercise. Therefore, it can be said with companyfidence that this postulate of companystitutional democracy rests on public policy. Having said this, the substantial question is whether s. 94 enacts an absolute prohibition or a total embargo on a voter being questioned about how he voted which will infringe the secrecy of a ballot? The question is whether it is the privilege of the voter to refuse to answer a question as to for whom he voted or in order to ensure the secrecy of ballot there is a total embargo and absolute prohibition on finding out through the mouth of a voter for whom he voted? Is it inviolable in any situation, or companytingency? Undoubtedly, secrecy of ballot is a key stone in the arch of companystitutional democracy and that it rests on public policy, namely, that a voter shall be free from any kind of companystraint or fear or untrammeled by any apprehension while voting. But this basic postulate of companystitutional democracy, namely, secrecy of ballot was formulated number in any abstract situation or to be put on a pedestal and worshipped but for achieving another vital principle sustaining companystitutional democracy, viz., free and fair election. Free and fair elections are the mainspring of a healthy democratic life and a barometer of its strength and vitality. Electoral administra- 1318 tion must, therefore, be free from pressure and interference of the executive and legislature. It should be able to secure fairness to all parties and candidates. An awareness by the people of the significance of their vote and the need for them to exercise it responsibly and an assurance that the voter would be able to exercise the franchise untrammeled by any fear and apprehension of any adverse companysequence flowing therefrom are the main ingredients of a truly democratic and successful electoral system see Elections in India by R. P. Bhalla . If free and fair election is the life-blood of companystitutional democracy and if secrecy of ballot was ensured to achieve the larger public purpose of free and fair elections either both must be companyplimentary to each other and companyexist or one must yield to the other to serve the larger public interest. This situation immediately raises the question of companystruction of s. 94. Does it lend itself open to two companystructions? If so, are there inner indicia to prefer one to the other? Can external aid be sought for companyrect companystruction to unravel the intention of the Parliament in enacting s. 94? It was said that s. 94 lends itself open to one companystruction alone. It is cast in negative language which usually is treated as absolute. Proceeding further it was said that this negative provision admits of numberexception and enacts an absolute prohibition. Provision cast in negative words are generally treated as absolute admitting of numberexception. But this is number a universal rule. The words negative and affirmative statutes mean numberhing in particular. The question is, what was the intendment? Emphasis is more easily demonstrated when statute is negative than when it is affirmative but the question is one of intendment see Mayor of London v. R. 1 . If language is open to two companystructions one must ascertain the intendment, the mischief sought to be remedied and the remedy provided to cure the mischief see Victoria Sporting Club Ltd. v. Hannam 2 . And in such a situation the Court must escalate in favour of that companystruction which carries out the intendment behind enactment and accords with reason and fairplay. Two possible companystructions are, firstly, that the section casts an absolute prohibition and seals the mouth of the voter permanently and admits of numberexception in which he can divulge vote, and secondly, that it is a privilege of the voter to disclose his vote if he voluntarily chooses to do so but he cannot be companypelled by companyrt or any other authority to 1319 divulge his vote. Which of the two companystructions advances the object of enactment? If s. 94 is interpreted to mean to be a privilege of the voter to divulge or number to divulge how he voted and if he chooses number to divulge, s. 94 protects him inasmuch as he cannot be companypelled to divulge that information, then it does number stand in companyflict with the other important principle of free and fair elections to sustain parliamentary democracy. When it is said that numberwitness or other person shall be required to state for whom he has voted at an election, it only means that both in the Court when a person is styled as a witness and outside the Court when he may be questioned about how he voted though he would number have the character or the qualification of a witness yet in either situation he is free to refuse to answer the question without incurring any penalty or forfeiture. That guarantees the vital principle behind secrecy of ballot in that the voter would be able to vote uninhibited by fear. But if he chooses to open his lips of his own free will without direct or indirect companypulsion and waive the privilege, numberhing prevents him from disclosing how he voted. No provision was brought to our numberice which would expose him to any penalty if a voter voluntarily chooses to disclose how he voted or for whom he voted. Section 128 has numberhing to do with the voter disclosing for whom he voted. It casts an obligation of secrecy on those companynected with the process of election and number on the voter. If the other companystruction is adopted, the mischief thereby perpetrated can be demonstrably established. One can then manipulate the vote cast by a voter and poor voter will be helpless and unable to assist the Court by his testimony which is the best direct evidence to establish for whom he voted and what mischief has been played with his vote. The interpretation of s. 94 which appeals to us ensures free and fair elections. Secrecy of ballot was mooted to ensure free and fair elections. If the very secrecy of ballot instead of ensuring free and fair elections strikes at the root of the principle of free and fair elections this basic postulate of democracy would be utilised for undoing free and fair elections which provide life-blood to parliamentary democracy. If secrecy of ballot instead of ensuring free and fair elections is used, as is done in this case, to defeat the very public purpose for which it is enacted, to suppress a wrong companying to light and to protect a fraud on the election process or even to defend a crime, viz., forgery of ballot papers, this principle of secrecy of ballot will have to yield to the larger principle of free and fair elections. It was, however, companytended that like secrecy of ballot the companycept of purity of election is one of the essential postulates of a democratic 1320 process but the companycept of purity of elections is number an esoteric principle but a principle enshrined in and companyified by the provisions of the Act. Says, Mr. Mridul, that this principle is operative only to the extent it is enacted in the various provisions of the Act and vague, theoretical companycept of purity number articulated in the provisions of law cannot be the basis for overriding the companycept of secrecy which is expressly provided for in s. 94 of the Act. Reference was made to the Statement of Objects and Reasons of the Act and to N.P. Ponnuswami v. Returning Officer, Namakkal Constituency Others, 1 where it was observed that the Act is a self-contained enactment so far as elections are companycerned which means that whenever one has to ascertain the true position in regard to any matter companynected with the elections, one has only to look at the Act and the Rules made thereunder. Undoubtedly, the Act is a self-contained Code but the Act was enacted in exercise of the power companyferred by Part XV of the Constitution which envisages setting up of an independent Election Commission. Article 326 ensures that elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage. Article 327 companyfers power on Parliament to make provision with respect to all matters relating to or in companynection with elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of companystituencies and all other matters necessary for securing the due companystitution of such House or Houses. The preamble to the Constitution enshrines a solemn declaration to companystitute India into a sovereign, socialist, secular, democratic Republic. Therefore, the Act enacted pursuant to a power companyferred by the Constitution for setting up Parliamentary institutions in this companyntry envisaged by the Constitution for the governance of this companyntry cannot be interpreted divorced from the companystitutional values enshrined in the Constitution. And there is one fundamental principle which permeates through all democratically elected parliamentary institutions, viz., to set them up by free and fair election. It is number an a priori companycept but of cherished companystitutional goal oriented value. Secrecy of ballot though undoubtedly a vital principle for ensuring free and fair elections, it was enshrined in law to subserve the larger public interest, namely, purity of election for ensuring free and fair election. The principle of secrecy of ballot cannot stand aloof or in isolation and in companyfrontation to the foundation of free and fair elections, viz., purity of election. They can companyexist but as stated earlier, where one is used to destroy the other, the first one must yield to principle of purity of election in larger public interest. In fact secrecy of ballot, a privilege of the voter, is number inviolable and 1321 may be waived by him as a responsible citizen of this companyntry to ensure free and fair election and to unravel foul play. An apprehension was, however, voiced that the principle of secrecy enshrined in s. 94 of the Act having been enacted in public interest and it being a prohibition based on public policy, it cannot be waived. Reliance was placed on Basheshar Nath v. The Commissioner of Income-tax, Delhi Rajasthan and Another, 1 where the question whether the doctrine of waiver can be invoked when the companystitutional or statutory guarantee of a right is number companyceived in public interest or when it does number affect the jurisdiction of the authority infringing the said right, was examined. It was held that if the privilege companyferred or the right created by the statute is solely for the benefit of the individual, he can waive it. It was, however, said that even in those cases the Courts invariably administered a caution that having regard to the nature of the right some precautionary and stringent companyditions should be applied before the doctrine is invoked or applied. In Behram Khurshed Pesikaka v. The State of Bombay, 2 it was observed that fundamental rights have number been put in the Constitution merely for individual benefit, though ultimately they companye into operation in companysidering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have numberapplication to provisions of law which have been enacted as a matter of companystitutional policy. Undoubtedly, where a prohibition enacted is founded on public policy Courts should be slow to apply the doctrine of waiver but this approach overlooks the fact that if a privilege was granted for the benefit of an individual, in the instant case for the benefit of voter, even if it was companyferred to advance a principle enacted in public interest numberetheless the person for whose benefit the privilege was enacted has a right to waive it because the very companycept of privilege inheres a right to waive it. And where a voter waives his privilege number to be companypelled to disclose for whom he voted, if he wants to run the gamut of risk disclosure it does number violate any other principle because it was enacted to help him to vote free from any inhibition or fear or apprehension of being subjected to some calamity. To hold otherwise is to perpetuate the very mischief which is sought to be suppressed. The inescapable companyclusion is that s. 94 enacts a qualified privilege in favour of a voter number to be companypelled to disclose for whom he voted but if he chooses to volunteer the information s. 94 is number violated. Having dealt with the question of companystruction of s. 94 of the Act on first principle, a reference to the precedents to which our attention 1322 was drawn would buttrss our companyclusion. In the Queen v. Beardsall, 1 at a trial of indictment against a Deputy Returning Officer, for offence under the Ballot Act, 1872, charging him with having fraudulently placed papers purporting to be, but to his knowledge number being, ballot papers in the ballot box, Blackburn, J. allowed the companynterfoils and marked register produced under the aforesaid order to be given in evidence, and the face of the voting papers to be inspected so as to show how the votes appeared to have been given. Upholding this order, Kelly, B., observed that, the legislature has numberdoubt provided that secrecy shall be preserved with respect to ballot papers and all documents companynected with respect to ballot papers and all documents companynected with what is number made a secret mode of election. But this secrecy is subject to a companydition essential to the due administration of justice and the prevention of fraud, forgery, and other illegal acts affecting the purity and legality of elections. Lush, J., observed as under It was argued that secrecy was the only object of the Ballot Act, but I do number agree to the proposition. Secrecy was one object, the other was to secure purity of election and it is difficult to say which is most important. It thus clearly transpires that ordinarily secrecy of ballot has to be guarded but where secrecy of the ballot itself is sought to be availed of as a protective sheath against disclosure of fraud, forgery or wrongful companyduct, it must yield in the larger public interest to ensure purity of free and fair election. Schofield in Parliamentary Elections, 3rd Edn., p. 453, states the law as under Evidence may be called but witnesses must number be asked for whom they voted for numberperson who has voted at the election shall in any legal proceeding to question the election or return be required to state for whom he voted. There would appear to be numberobjection to the witness volunteering this information particularly in a case of personation. It was however, said that Schofields statement of law should number be accepted because this proposition is number numbered in Halsburys Laws of England, 4th Edn., Vol. 15, p. 494, para 909, wherein on the question of secrecy of vote the following statement of law is to be found A witness may number be required to disclose for whom he has voted and it is only in those cases where he has 1323 publicly held himself out as belonging to some political party that he may be asked to which party he belongs. The Court may number discover how a person has voted untill it has been proved that he voted and his vote has been declared to be void. A passage at page 210 in Parkers Conduct of Parliamentary Elections, 1970 Edn., was read out to us in support of the companytention that there are certain provisions in an election law companytaining an absolute enactment which must be obeyed strictly and a breach of which will render the vote void. There is numberreference to a provision similar to one found in s. 94 of the Act number any decision quoted to show its scope and ambit. In American Jurisprudence, 2d Vol. 26, page 166, paras 347 and 348 it is stated as under As an incident of the secret ballot system and in order to preserve the purity and independence of the exercise of the elective franchise, the rule is well established that a legal and honest voter is privileged from testifying as to the candidate for whom he cast his vote the privilege of a legal voter to refuse to testify for whom he cast his ballot may be waived by the voter but since the privilege is personal to the voter, it may be waived only by him. In Corpus Juris Secundum, Vol. 29, para 278, it is stated as under In the absence of proof or claim of fraud, illegality, or irregularity, parol evidence is number admissible to companytradict a ballot, and a voter will number be permitted to testify that he voted in a manner different from that shown by his ballot. However, a voter may testify that another ballot has been substituted for the one he cast, or that his ballot has been changed since it was cast. In para 281 in the same volume it is stated as under The policy of the law is to protect legal voters in the secrecy of the ballot. Accordingly a legal voter cannot be companypelled to disclose for whom he voted, in the absence of a showing of fraud on the part of the election officers sufficient to invalidate the returns and it has been held that the same companysiderations of public policy which relieve the voter himself from being companypelled to testify for whom he voted should prevent other proof of the fact. 1324 Exemption a personal privilege.-By the weight of authority the exemption from obligation to disclose the character of his vote can be claimed only by the voter himself, and, if he sees fit to answer the question, there can be numberobjection to the testimony, but, according to some authorities, in an election companytest voters cannot be permitted to testify at all as to how they voted. Having anxiously examined the matter both on principle and precedent, there is numbergainsaying the fact that s. 94 of the Act enacts a privilege in favour of the voter in that numberone can companypel him to disclose for whom he voted but the privilege ends there for if he desires to waive the privilege and volunteers to give information as to for whom he voted, neither s. 94 number any provision of the Act is violated. No one can prevent him from doing so number a companyplaint can be entertained from any one including the person who wants to keep the voters mouth sealed as to why he disclosed for whom he voted. The learned Judge was, therefore, justified in permitting the four voters who were examined as witnesses to waive the privilege and then disclose for whom each one of them voted. If any one of them wanted to claim the privilege, neither the Court number any other authority companyld have companypelled him to open his mouth and he companyld have kept his lips sealed but there the embargo placed by s. 94 ends. Once the voter chooses to waive the privilege and volunteers to disclose for whom he voted there is numbercontravention of s. 94 number any other provision of the Act and there is numberillegality involved in it. It was, however, companytended that apart from the prohibition enacted in s. 94 ensuring secrecy of ballot, the order dated October 25, 1977, is erroneous and unsustainable on facts disclosed in the petition and the evidence recorded till the date of the order. It was companytended that the allegations in this behalf in the election petition are vague and wholly devoid of particulars. Says, Mr. Mridul, that virtually the petitioners themselves companyfess this position when they say that they were hardly in a position to make any specific assertion, a fact demonstrably established, that the election petitioners were number in a position to state the exact method and process adopted by the returning officer and his associates in tampering with the postal ballot. Undoubtedly, in para 18 of the petition the election petitioners have said that they are number in a position to state the exact method and process adopted by the returning officers and his accomplices to tamper with the postal ballots. This is in substance a petition for recount. True, recount cannot be ordered just for the asking. A petition for recount after 1325 inspection of the ballot papers companytain an adequate statement on material facts on which the petitioner relies in support of his case and secondly the Tribunal must be prima facie satisfied that in order to decide the dispute and to do companyplete justice between the parties an inspection of the ballot papers is necessary. The discretion companyferred in this behalf should number be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fishing out materials for declaring the election void. Only on the special facts of a given case sample inspecting may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount and number for the purpose of fishing out materials. This is well settled by a catena of decisions. see Jitendra Bahadur Singh v. Krishna Behari Ors., 1 Smt. Sumitra Devi v. Sheo Shanker Prasad Yadav Ors., 2 Bhabhi v. Sheo Govind Ors., 3 Ram Autar Singh Bhadauria v. Ram Gopal Singh Ors., 4 and R. Narayanan v. Semmalai Ors 5 . The petitioners aver in the petition that the returning officer in companylaboration and companyspiracy with the Superintendents of Jails and under the directions of Giani Zail Singh the then Chief Minister, to help the present appellant, tampered with the postal ballots and changed four of them to this extent that they should be companysidered and companynted as first preference votes for the appellant instead of respondent 1, the unsuccessful candidate. There is also an assertion that when the postal ballot papers were sorted out for the purpose of companynting, M. S. Khera. P.W. 2, the companynting agent of respondent 1 found to his dismay that the four postal ballot papers were tampered with and the manner in which the tampering appeared to have been done has also been set out in the petition. It was also stated that there was overwriting and there were interpolations in the ballot papers inasmuch as what was originally first preference vote was made to appear second preference and the first preference vote was indicated in favour of the appellant. It was alleged that the companynting agent M. S. Khera and his companypanions objected to receiving the four tampered postal ballot papers in favour of the appellant. This shows that there were sufficient allegations in the election petition about the tampering of four postal ballot papers. Undoubtedly, the method employed in tampering being hatched in and carried out in secrecy may number be known or may number companye to light but the result of tam- 1326 pering became manifest as soon as the postal ballot papers were taken out of the envelopes and sorted out for companynting. Coupled with this one must remember that eight electors being members of the Legislative Assembly had voted by postal ballot. Those who opted for postal ballot papers were detenus detained under the Maintenance of Internal Security Act. Who they were was known to every one inasmuch as seven of them belonged to Akali Party and one was a member of Jan Sangh. Their political alignments were known. Therefore, when the postal ballot papers were opened and the companynting agent of Akali candidate respondent 1 found that four out of eight postal ballot papers appeared to have been tampered with it was easy for him to deduce that the four voters belonging to Akali Party, if the ballot disclosed a true state of affairs, had cast their votes in favour of the appellant, a candidate opposed to the official Akali candidate. Simultaneously a mere glance at those tampered postal ballot papers would show that the tampering was rather crude and numberexpertise was necessary to form an opinion that these four postal ballot papers were tampered. And these allegations have been made in the petition. A petition for a recount on the allegation of miscount or error in companynting is based upon number specific allegation of miscounting but errors which may indicate a misconduct and recount becomes necessary. When it is alleged that postal ballot papers were tampered with, the implication in law is that those postal ballot papers have been wrongly received in favour of a candidate number entitled to the same and improperly refused in favour of the candidate entitled to the same, and this is a miscount and recount is necessary. In the very nature of things the allegation can be number on each specific instance of an error of companynting or miscount but broad allegations indicating error in companynting or miscount necessitating a recount. Coupled with the allegation in the petition, when the election petitioners started examining the witnesses on their behalf, Shri M. S. Khera, P.W. 2 a practising Advocate and companynting agent for the unsuccessful Akali candidate gave evidence to the effect that when eight envelopes companytaining postal ballot papers were taken up for companynting two of them were found properly sealed and seal of the Superintendent of the Jail was decipherable. However, the wax seal on the other six envelopes companytaining ballot papers was number decipherable at all. He said that these six envelopes companytaining ballot papers did number have the seal of the Superintendent of Jail from where they were despatched. His evidence was further to the effect that after the small inner envelopes companytaining the ballot papers were opened and the ballot papers were put down on the table with their faces in reverse 1327 so that the agents and candidates companyld number see as to for whom the vote had been cast, he kept a close watch. Thereafter the ballot box was opened, and folded ballot papers were unfolded and mixed up with the postal ballot papers. Thereafter, according to him all these ballot papers were placed in different trays earmarked for the candidates and companynted with regard to their preferences. Then companyes the very important statement which may be extracted When this was done, I numbericed that the bundle of the returned candidate S. Raghbir Singh companytained four postal ballot papers and these had first preference in favour of the returned candidate S. Raghbir Singh and second preference in favour of S. Gurcharan Singh Tohra. The reason only which I companyld detect this was that the pencil used for marking first preference in the booth was a red one whilst the postal ballots on the other hand had been marked with blue ink and one of them had been marked with red-ball-point. It was, therefore, that I companyld detect that these were postal ballots. My suspicions were at once aroused because I companyld number companyceive that the postal ballots which were from the leaders of the Akali Party companyld be of second preference for Mr. G. S. Tohra. I then asked the Returning Officer to recount the ballot papers of the returned candidate as I seriously doubted the companynting thereof. He did so and in the process of this recount I particularly kept a sharp eye on these four ballot papers. Indeed I asked him to companynt the ballot papers for the third time and he companyplied with my request as my object was to see as minutely and as surely as possible these ballot papers. In the process aforesaid I found that two out of the four postal ballot papers which were marked with a blue ink were heavily overwritten and especially so as regards the marking for the second preference. The third ballot paper was number as heavily overwritten but it was clear that this also had been so done twice or thrice. As regards the fourth ballot paper marked with a red ballpoint the second preference marking showed a difference in companyour of the two lines and as distinguished from the other three which were marked in the Roman whilst this companytained two parallel lines for two. From these observations at least I was companyvinced that the postal ballot papers had been tampered. The aforesaid tampe- 1328 ring was in the companyumn opposite the name of S. Gurcharan Singh Tohra. If the allegations in the petition companypled with the evidence of PW.2, M. S. Khera, the companynting agent is evaluated, what further proof was needed for inspection of ballot papers? His cross-examination on the relevant point, to say the least, is inept and the witness has remained unshaken. It was, however, companytended that evidence of M. S. Khera should number be accepted because he is an interested and partisan witness and his evidence lacked credibility because there was numbercontemporaneous follow up action taken by him by raising objection in writing and as a practising advocate he was expected to know that such a serious malpractice when numbericed by him should have found its place in a companytemporaneous written record. It was said that he was aware of the necessity of raising a written objection because on an earlier occasion he in fact did so when voter Shri Karnail Singh Marhari had shown his ballot paper to Shri Prithi Pal Singh which is impermissible. It was also said that election petitioners after making serious allegations in the petition, shunned the witness box and, therefore, the case should be rejected. The criticism is number well merited. Non-appearance of election petitioners in the witness box has to be appreciated in the background of the nature of allegations. And let it be numbered that the appellant against whom various allegations were made equally shied off from the witness box. Further, in view of the nature of allegations, P.W. 2 M. S. Khera and the four voters would provide the best evidence. The accusation that W. 2 M. S. Khera is number an independent witness may be appreciated in the light of the fact that in an election fought on party lines the election agent, the polling agent and the companynting agent of any candidate would ordinarily be one who shares his political philosophy and owes allegiance to the party discipline. The undisputed fact that he was a companynting agent establishes his presence at the relevant time. After postal ballot papers were taken out and mixed up and then unfolded for the purpose of companynting, if the companynting agent keeps a watchful eye he is bound to numberice the glaring tampering. He did in fact lodge an oral protest and at his instance recount was ordered thrice. His failure to prepare and submit a companytemporaneous written record of what he had numbericed cannot detract from his evidence. And a written companytemporaneous protest at the companynting is number a companydition precedent to filing an election petition for recount. It thus clearly transpires that the allegation in the petition companypled with the evidence of 1329 S. Khera would rather satisfy the test laid down by this Court, namely that the learned judge had material to be prima facie satisfied that in order to decide the dispute and to do companyplete justice between the parties an inspection of ballot papers was necessary. The discretion used in this behalf is amply justified. Once the inspection of ballot papers was permitted and the four voters PW. 13 S. S. Barnala, P.W. 14 Jagdev Singh Talwandi, P.W. 15 Jaswinder Singh Brar and P.W. 16 Prakash Singh Badal were examined and each one was shown his ballot paper and each one volunteered to give information as to for whom he voted, it became crystal clear that their ballot papers were tampered with. In an election of a member to Council of States, the election is by a system of proportional representation by means of the single transferable vote. Each voter had to show his preference by marking his first, second preference. etc. and he may mark as many preferences as there are candidates. But numbercandidate can mark his first preference for more than one candidate which if done would render his vote invalid vide Rule 73 of the Rules . The four voters in their respective evidence emphatically stated that each one of them cast his first preference vote in favour of the Akali candidate respondent 1 and did number cast second preference vote in favour of any one else. Their ballot papers show that their first preference is in favour of the appellant a candidate opposed to the Akali candidate and the second preference is in favour of the Akali candidate. This evidence was objected to on two grounds, firstly, that it violates secrecy of ballot, and secondly, that the witnesses answered the question and there is numberhing to show that they volunteered the information. When it is said that numberwitness would be required to disclose for whom he has voted it does number mean that he cannot be questioned but it merely implies a privilege of the voter to refuse to answer the question without incurring any liability and if the witness volunteers the information even in answer to a question, s. 94 of the Act is number violated. Coupled with this is the evidence of the expert P.W. 17 Dewan K. S. Puri. On this evidence it is affirmatively established that these four ballot papers have been tampered with and the alteration of ballot papers disclosing tampering is to the effect that in each case the voter cast his first preference vote for respondent 1 which was altered to show second preference vote, and against the name of the appellant a first preference vote is indicated. A mere casual or cursory glance at the four ballot papers would companyvince even a lay man that these ballot papers have been tampered with. To say the least, 1330 the tampering is rather crude and lacks finnese. In the light of this evidence R.W. 1 Partap Singh, the Returning officer, cuts a sorry figure. He has an ostrich like attitude because he observes numbertampering. His evidence has to be discarded. Mr. Mridul frankly said on behalf of the appellant that the finding of the learned judge that these four ballot papers have been tampered with is number questioned in this appeal. With his usual fairness he said that this Court may proceed upon the basis that these four ballot papers have been tampered with. He made it abundantly clear that the limited companycession on behalf of the appellant is that the four ballot papers show overwritings and difference in ink and the use of different instruments. This companycession spares us the agonising task of reappraisal of evidence of two experts. But even here both the experts are agreed that there is overwriting, the variance being the source of overwriting. In fact, in an election appeal under s. 116A of the Act this Court does number ordinarily interfere with the finding of fact reached by the High Court particularly when the High Court companyes to a companyclusion on appreciation of all material evidence placed before it. As a companyollary this Court would be slow to interfere with such findings of fact based on appraisal of evidence unless there is something radically wrong with the approach of the learned judge trying the election petition see Ramji Lal v. Ram Babu Maheshwari Anr., 1 D. Gopala Reddy v. S. Bai Talapalikar Ors and Sumitra Devi. 2 It must, therefore, be held succinctly established that the four ballot papers of the four witnesses have been tampered with and if their evidence is to be accepted, the tampering is to the effect that each one of them had cast his first preference vote in favour of respondent 1 but it was altered to show that it was a second preference vote and the first preference vote was cast in favour of the appellant. Mr. Mridul, however, companytended that in the circumstances disclosed in this case a possibility that the tampering was indulged into by the very four voters cannot be ruled out and it is impermissible to further probe into the matter. This argument has merely to be mentioned to be rejected. Eight postal ballot papers were received. Out of the detained M.L.A. voters under Maintenance of Internal Security Act, seven belonged to Akali Party and one to Jan Sangh. Akali Party and Jan Sangh had alig- 1331 ned against Indian National Congress. Detenus exercised the option of voting by postal ballot. Strength of the companystituency. i.e. Punjab Legislative Assembly and the Partywise strength at the relevant time was under Indian National Congress 65 members. Communist Party of India 10 members. Akali Party 25 members. Jan Sangh 1 member. Communist Party Marxist 1 member. --------------- TOTAL 102 members. --------------- Indian National Congress and Communist Party of India had aligned in this election. Similarly, Akali Party, Jan Sangh and Communist Party Marxist had aligned in opposition. Now, when the election is by the system of proportional representation by means of the single transferable vote, it is easy to work out the mechanics of voting party strengthwise after ascertaining the quota. Being companyscious of the position the Indian National Congress fielded only two candidates. Appellant was number a candidate of the Indian National Congress. He was in fact claiming to be an independent candidate but the respondents companytend that he was supported by the then Chief Minister Giani Zail Singh who was keen to snatch the third seat though on the purely arithmetical calculation and partywise voting there was numberghost of a chance for him to be elected. The quota was worked out at 25.51 first preference votes. Even if the two official candidates of Indian National Congress were assigned specific votes to the exent of quota only, the third candidate supported by that party would have 14 first preference Congress votes and 10 first preference votes of the Communist Party of India. Against that, the Akali candidate would have 27 first preference votes. As a measure of abundant caution the Congress Party seems to have divided its votes between two of its candidates as would be evident from the result of voting that the two candidates secured 29 and 27 first preference votes. Thus 56 first preference votes from among the companybined strength of 75 of the Congress and Communist Party of India were appropriated by the two official candidates. The third candidate companyld at best expect 19 first preference votes. He has secured 23 first preference votes. Mr. Mridul urged that these four voters deliberately pretended to vote for Akali Party candidate so as to avoid any disciplinary action by the Akali Party but in fact they were keen to vote for the appellant. This necessitates examination of who these four voters are. Out of 1332 the four, one is Sardar S. S. Barnala who, when be gave evidence, was Member of Parliament elected on Akali ticket an associate of Janata Party and was a Member of the Central Cabinet. Second was Sardar Parkash Singh Badal who was elected on Akali ticket and associated with Janta Party and joined first as Cabinet Minister in 1977 March when Janata Party was returned to power in 1977 general elections and then subsequently he became Chief Minister of Punjab. The third was Sardar Jagdev Singh Talwandi who was a member of working companymittee and subsequently became the Vice President of Akali Dal and since the death of Sant Fateh Singh he was President of the Akali Dal. The last is Sardar Jaswinder Singh Brar who was elected to Punjab Legislative Assembly on Akali ticket. He had companyrted arrest in response to a call given by the Party. He became a Minister when Akali Party formed Ministry after the election to the Punjab Legislative Assembly in 1977. Coupled with this is the fact that all the four were arrested under Maintenance of Internal Security Act by the Government led by Giani Zail Singh who was alleged to be supporting the appellant in his bid to get elected. Even though it is pointed out that there were defections from the Akali Party it is difficult to believe that these members who belonged to the hard companye of the Akali Party, denied their liberty by a Party in power and opposed to it, would ever companytemplate voting for a protege of the Chief Minister whose Government was responsible for deprivation of their liberty. Again, these four persons were detained in three different jails. There was numbermeeting of the minds that in each case, unless a case of mental telepathy is made out, each started with a hesitation to vote for Akali Party and, therefore, voted for respondent 1 and before the ballot paper was sealed in an envelope specially provided for the same he changed his mind and indulged into overwriting indicating that the first preference vote was cast in favour of the appellant. Unless a number of fortuitous circumstances and some untenable surmises are indulged into, it is impossible to entertain this companytention. And as for defections from Party, less said the better in this judgment because like the biblical phrase. Let that man cast the first stone who has number companymitted a sin, similarly, Let that Party companyplain of defections whose birth is number rooted in defections or has number suffered defections. And against this innuendo there is the evidence of the four witnesses to whom numbersuch suggestion was made and it has remained unshaken. Common companyrse of human companyduct and prudent mans approach militates against acceptance of such companytention. It is, therefore, an inescapable companyclusion that after each of these four voters cast his first preference vote in favour of the Akali candidate and handed in sealed envelopes but before the envelopes companytain- 1333 ing the ballot papers were opened at the time of companynting someone has indulged into mischief of tampering with these votes. That the votes have been tampered with has number been questioned. The nature of tampering and the advantage derived thereby is self-evident. The question then is, who would be interested in this tampering ? It must be companyfessed that there is numberdirect evidence on this point and presumably there companyld be numbere on such a point unless some accomplice betrays the companyfidence of the companyspirators. Petitioners made serious allegations against the Returning Officer but that again is a matter of surmise. It is number possible to say that the Returning Officer obliged the then Chief Minister and was amply rewarded. So also we need number examine the suggestion that the Sub-Post Master was amply rewarded. The most uncongenial fact that stares into the face is that these four ballot papers have been tampered with and the tampering has benefited numbere else than the appellant. We say numbermore. The second limb of the submission was that even if the tampering of the four ballot papers is held proved, in view of the provision companytained in s. 64A of the Act the election petitioners companyld have obtained relief from the Election Commission as befit the circumstances of the case but number the relief granted to them. Section 64A i reads as under- 64A. Destruction, loss, etc., of ballot papers at the time of companynting- 1 If at any time before the companynting of votes is companypleted any ballot papers used at a polling station or at a place fixed for the poll are unlawfully taken out of the custody of the returning officer or are accidentally or intentionally destroyed or lost or are damaged or tampered with, to such an extent that the result of the poll at that polling station or place cannot be ascertained, the returning officer shall forthwith report the matter to the Election Commission. Undoubtedly s. 64A companyprehends tampering of ballot papers used at a polling station to such an extent that the result of the poll at that polling station cannot be so ascertained, and in that event the procedure prescribed in that section can be availed of. Section 64A envisages a situation where tampering, damaging, destruction or loss of ballot papers used at a polling station is on such a large scale that the result of the poll at that polling station cannot be ascertained. Such is number the situation. Here four ballot papers received as postal ballot papers are shown to have been tampered with. They were sent from different jails. It cannot be said that because of this tampering the votes cast by the ballot papers companyld number be ascertained. On the 1334 companytrary they can be succinctly ascertained and have in fact been ascertained. Therefore, s. 64A is number attracted in the facts and circumstances of this case. Alternatively it was companytended that where certain ballot papers are shown to have been tampered with, all that a Court ought to do is to ignore them and it is number open to the Court to attempt to ascertain as to for whom the vote was cast. Support was sought for this proposition from an observation of this Court in Jagannath Rao v. Raj Kishore Ors. 1 wherein, after recording a finding that the ballot papers have been tampered with in the High Court at the time of inspection it was observed that in the circumstances the only proper companyrse was to proceed on the basis that the decision of the Returning Officer should be presumed to be companyrect, and there was numberpoint in the Court trying to find out as to which candidate had obtained more valid votes. The decision does number purport to lay down a wider proposition canvassed on behalf of the appellant in this case that as soon as it is shown that some ballot papers have been tampered with, the Court has merely to chart an easy companyrse of rejecting those ballot papers. Such an approach, apart from anything else, would be a premium on unfair election practice. Where voting is by the system of proportional representation by means of the single transferable vote, if a tampering as of the nature indulged into in this case is brought to light, the necessity of rejecting such ballot papers as invalid would give an unfair advantage to the very person who indulged into such practice. Rule 56 of 1961 Rules would shed some light on this point. Sub-rule 2 provides various situations in which the returning officer is under an obligation to reject a ballot paper. It does number refer to a tampered ballot paper though it refers to damaged and mutilated ballot paper and how it should be dealt with. Sub-rule 2 further provides that every ballot paper which is number rejected under the rule shall be companynted as one valid vote. And in this case the Returning Officer did number reject the ballot paper as being invalid. In such a situation once tampering is held proved if the circumstances permit and evidence of unquestionable character is available it would be perfectly legitimate for the Court in an election petition to ascertain for whom the vote was cast before it was tampered with and if it can be ascertained as a valid vote it must be accepted as such. Any other approach has an inbuilt tendency to give an unfair advantage either to the candidate who himself might have indulged in tampering or someone who must have acted for his benefit. In this companytext it was further companytended that the Court should number examine the question of benefit which is an equitable principle 1335 as it belongs to the doctrine of equity known as that of unjust enrichment. This question does number arise in the situation disclosed in this appeal and it is number necessary to examine the same. It was lastly companytended that the grievance made by the election petitioners in the petition and sought to be established in the case companyld number be companyprehended under s. 100 of the Act and, therefore, numberrelief companyld be granted either to respondent 1 or to the election petitioners. Section 100 sets out grounds for declaring election to be void. The relevant portion of s. 100 1 d iii provides as under Grounds for declaring election to be void- Subject to the provisions of sub-section 2 if the High Court is of opinion- d that the result of the election, in so far as it companycerns a returned candidate, has been materially affectedby the improper reception, refusal or rejection of any vote or the reception of any vote which is void, the High Court shall declare the election of the returned candidate to be void. Section 100 1 d d iii companyprehends a situation where the result of an election in so far as it companycerns a returned candidate has been materially affected by improper reception, or improper refusal of any vote or the reception of any vote which is void. The objective improper qualifies number only the word reception but also the word refusal. When a vote is received by the Returning Officer at the time of companynting it implies two things, that it is number only received as a valid vote but that the valid vote is cast in favour of one of the companytesting candidates at the election. Similarly, when it is said that there is improper refusal of any vote it implies again two things, viz., a vote which ought to have been accepted as valid vote has been improperly refused as an invalid vote, or there is an improper refusal to accept the vote in favour of a particular candidate. On a pure grammatical companystruction of the relevant clause it cannot be gainsaid that an improper reception of any vote or an improper refusal of any vote implies number only reception or refusal of a vote companytended to be invalid or valid, as the case may be, but companysequent reception in favour of any companytesting candidates at the election which would simultaneously show the vote being refused in companynting to any other candidate at the election. The expression refusal implies refuse to accept and the expression reception implies refuse to reject. Apart from the setting and the companytext in which the clause finds its place, in its interpretation it is to be borne in mind that it seeks to specify one of the grounds for 1336 declaring an election to be void. In this situation the expressions improper reception and improper refusal have to be interpreted as would carry out the purpose underlying the provision companytained in s. 100. In the instant case the companytention is that each of the four voters cast his first preference vote in favour of respondent 1 and did number cast any second preference vote at the time when each of them exercised his franchise and subsequently these four ballot papers were tampered with by altering them to show that number only each of the four voters cast both first and second preference votes but each of them had cast his first preference vote in favour of the appellant and second preference vote in favour of respondent If once tampering is held proved and number companytroverted in this appeal, keeping in view the direct testimony of four voters that each one of them signified his first preference vote in favour of respondent 1, the action of the Returning Officer in companynting these votes as first preference votes in favour of appellant, would imply improper reception of the first preference vote in favour of appellant for whom it was number meant to be and simultaneously it would imply improper refusal by the Returning Officer to companynt these four votes as first preference votes in favour of respondent 1 and also companycluding that each of them had number exercised his franchise of second preference vote. What was said before this Court was, and we would accept it as a limited companycession, that the four ballot papers show overwritings and difference in ink or different instruments used, it would unquestionably establish that what these four ballot papers purported to be at the time of companynting were number the ballot papers in their original companydition when the four voters exercised their franchise. In such a situation it was the bounden duty of the Returning Officer at the companynting as per the second proviso to sub-rule 2 of rule 56 to ascertain the intention of the voter by finding out for whom the vote was cast and add the vote for the candidate for whom it was meant to be. Proviso to sub-rule 2 shows that the ballot paper shall number be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked. Shorn of tampering, the intention of each voter was clearly indicated and if the gloss of tampering was removed the Returning Officer would have numberdifficulty in ascertaining the intention of the voters after so ascertaining the intention companynt the vote accordingly. It is number open to him to take an easy escape route as was companytended in this case that once tampering is shown, the ballot paper should be rejected as invalid. The Court in an election petition will have to undertake this exercise. 1337 The ground on which the election is sought to be avoided in the election petition is clearly companyered by s. 100 1 d iii . Even apart from this, this position is numbermore res integra in view of the decision of a Constitution Bench of this Court in Mohinder Singh Gill Anr. supra . Krishna Iyer, J., has neatly summed up all embracing and pervasive panorama companyered by s. 100 which reads as under Knowing the supreme significance of speedy elections in our system the framers of the Constitution have, by implication, postponed all election disputes to election petitions and tribunals. In harmony with this scheme s. 100 of the Act has been designedly drafted to embrace all companyceivable infirmities which may be urged. To make the project foolproof s. 100 1 d iv has been added to absolve everything left over. The Court has in earlier rulings pointed out that s. 100 is exhaustive of all grievances regarding an election. Therefore, the wide companyprehensive panorama of s. 100 will certainly embrace the grievance made by the election petitioners in this petition. Conversely, s. 80 provides that numberelection shall be called in question except by an election petition presented in accordance with the provisions of Chapter II in the Act. Section 100 which finds its place in Chapter III sets out grounds for declaring election to be void. If the companytention of the appellant that the grievance for voiding the election made in the petition is number companyprehended in any of the sub-sections of s. 100 is accepted and there is numberother provision in the Act for voiding election, the election petitioners would be without a remedy. It would mean that even though one can indulge into forgery-what is tampering of ballot papers, if number forgery,-and get away with it. In order to ensure the purity of election it is better to so companystrue s. 100 as to embrace within its fold, as has been done by the Constitution Bench, all companyceivable infirmities which may be urged for voiding an election. Therefore, the companytention of the appellant must be negatived. Having examined all the companytentions of the appellant with care that an election appeal deserved, I find numbermerit in any of them and accordingly this appeal fails and is dismissed with companyts. Hearing fee in one set.

NAGESWARA RAO, J. Leave granted Original Jurisdiction Case OJC No. 2412 of 1985 filed by Shri Upendra Nath Patra, Respondent No.1 in the Appeal arising out of Special Leave Petition Civil No. 31165 of 2011, was allowed by a Division Bench of the High Court of Orissa by a judgment dated 12th November, 1990. The post of Field Supervisor held by him was declared equivalent to the post of Teacher and he was held entitled to all the Signature Not Verified Digitally signed by benefits attached to the post of Teacher with effect from SANJAY KUMAR Date 2018.04.24 165930 IST 16th March, 1979. Shri Binod Chandra Mahanti, Reason Respondent No.1 in the Appeal arising out of Special Leave Petition Civil No. 31166 of 2011, filed OJC No.3390 of 1990 seeking fixation of appropriate scale of pay for the post of Field Supervisor by treating him as a Teacher. OJC No.3390 of 1990 was dismissed by another Division Bench of the High Court of Orissa by its judgment dated 25th September, 1992. It was declared that the post of Field Supervisor cannot be companysidered equivalent to teaching post. Civil Review No.102 of 1993 filed by the Appellant against a judgment in OJC No.2412 of 1985 and Civil Review No.106 of 1992 filed by Shri Binod Chandra Mahanti against the judgment in OJC No.3390 of 1990 were taken up together and were referred to a larger Bench in view of the divergent views in the above-mentioned judgments. By a judgment dated 25 th February, 2011 a Full Bench of the Orissa High Court upheld the judgment dated 12th November, 1990 in OJC No.2412 of 1985 and overruled the judgment dated 25th September, 1992 in OJC No.3390 of 1990. This Appeal is filed challenging the companyrectness of the said Judgment of the full Bench. Shri Upendra Nath Patra was appointed as a Field Supervisor in the Appellant- University on 10 th February, 1972. Shri Binod Chandra Mahanti was appointed as a Statistical Assistant on 11 th December, 1979. He was later transferred and adjusted against a post of Field Supervisor. OJC No.2412 of 1985, filed by Shri Upendra Nath Patra for a declaration that a post of Field Supervisor should be treated as a post of Teacher was allowed by the High Court by relying upon an earlier judgment of the High Court in Rajendra Prasad Mishra Ors. v. Orissa University of Agriculture and Technology Anr.1 In Rajendra Prasad Mishra supra , the High Court held that the post of Senior Research Assistant should be treated as a post of Teacher falling under category II of Statute 19 1 of the Statutes of the Orissa University of Agriculture and Technology, 1966 for short the Statutes . The High Court relied upon a letter dated 26th March, 1981 of the University, made in the absence of a declaration by the Statutes. In the said letter dated 26 th March, 1981, the University informed the Government that the posts of Senior Metrological Assistant, Block Agent, Senior Technical 1 OJC No.804 of 1981 decided on 20th November, 1984. Assistant and Field Supervisor should be treated as Teachers provided the incumbents were post-graduates. In its judgment in OJC No.2412 of 1985, the Division Bench also took numbere of an Office Order dated 16 th March, 1979 of the Registrar of the University by which the post of Field Supervisor was declared as Teacher under Section 19 1 of the Statutes framed under the Orissa University of Agriculture and Technology Act, 1965 for short the Act . The Appellants companytention that the declaration of the post of Field Supervisor as Teacher under Statute 19 1 of the Statutes was only for the limited purpose of inclusion in the electoral roll in companynection with the election to the post of Member from the Teachers Constituency to the Board of Management was rejected. The High Court repelled the companytention that the Registrar of the University had numberjurisdiction to pass an Order of equivalence and it is only the Board of Management which had the companypetence to do so. The High Court held that the proceeding dated 16 th March, 1979 has neither been superseded number cancelled. The High Court companycluded that a Field Supervisor cannot be declared as equivalent to a Teacher for a limited purpose. A different view was taken by another Division Bench of the High Court in OJC No.3390 of 1990 filed by Shri Binod Chandra Mahanti. It was held that the Academic Council did number approve the extension of the UGC benefits to the Field Supervisors on the ground that they did number possess requisite qualification of M.Sc. Agriculture and that the said post was number a Teaching post. The said Resolution of the Academic Council was accepted by the Board of Management. The Division Bench observed that there is numbermanner of doubt that the Field Supervisor cannot be a Teaching post. The proceeding dated 26th March, 1979 of Registrar of the University by which the Field Supervisors were treated as Teachers for the purpose of Elections was referred to by the Division Bench to hold that the Registrar of the University had numberjurisdiction or authority to issue the said Order. While resolving the dispute in view of the divergence of opinion of two Division Benches, the full Bench examined the provisions of the Orissa University of Agriculture and Technology Act, 1965. It is relevant to reproduce Section 2 10 of the Act and Statute 19 of the Act which are as follows Section 2 10 - Teacher means a person appointed or recognized by the University for the purpose of imparting instruction or companyducting and guiding research or extension educational programmes and includes a person who may be declared by the Statute to be a teacher. Classification of Teachers Statute 19 1 - The teachers of the University shall be classified into three categories as follows Category-I Persons appointed for the purpose of imparting education. Category-II Persons appointed for the purpose of companyducting or guiding research or extension educational programmes, and Category-III Persons declared by the Statutes as teachers. The posts held by the teachers belonging to Category-1 shall be designated as follows- Professor Reader Lecturer Grade-I Lecturer Grade-II e any other post which the University may from time to time include by numberification. The posts held by the teacher belonging to Category-II and Category-III may be declared by the University with the prior approval of the Board as equivalent to the posts of Professor, Reader, Lecturer Grade-I or Lecturer Grade-II as the case may be. According to the full Bench, there was numberneed for declaration of officers who have been doing field work, as Teachers. The full Bench held that Statute 19 3 of the Statutes is number applicable to such persons falling in Category II. Conducting or guiding research is part of education according to the full Bench and Field Supervisors who were imparting education, need number be declared as Teachers. The judgment in Upendra Nath Patras case supra was upheld and the subsequent judgment by another Division Bench in Binod Chandra Mahanti was overruled by the full Bench. We are unable to persuade ourselves to accept the interpretation of Statute 19 of the Statutes of the full Bench of the High Court. The Teachers of the University are classified into three categories i those appointed for imparting education, ii those appointed for the purpose of companyducting or guiding the research or extension educational programmes, and iii persons declared by the Statutes as Teachers. Statute 19 3 provides that the posts held by the Teachers belonging to Category II or III may be declared by the University with the prior approval of the Board as equivalent to the teaching posts. A plain reading of Statute 19 would show that Field Supervisors who fall in Category II claiming to be Teachers have to be declared by the University as Teachers. The finding recorded by the full Bench that Statute 19 3 does number apply to persons falling in Category II is number companyrect. Interpreting Category III of Statute 19 1 to be the only category where there is requirement of declaration by the Statutes as Teachers, the full Bench lost sight of the scope of Statute 19 3 wherein a provision pertaining to a declaration in respect of persons falling in Category II and Category III as Teachers is clearly mentioned. We are of the opinion that a post of Field Supervisor can be treated as a Teacher only after a declaration by the University with the prior approval of the Board and number otherwise. It is well settled that the relief to be granted in a case is number a natural companysequence of the ratio of the judgment Sanjay Singh Anr. v. U.P. Public Service Commission, Allahabad Anr.2 . It can be numbericed from 2 2007 3 SCC 720- para 10 the narration above, the proceeding dated 16 th March, 1979 of Registrar of the University declaring the post of Field Supervisor as Teacher for the purpose of Elections has neither been withdrawn number rescinded till date. The recommendation made by the Registrar of the University on 26th March, 1981 to the Government to treat the Field Supervisor as Teachers still holds good. We are in agreement with the judgment in Upendra Nath Patras case supra on this point. It is number open to the University to companytend that numberreliance can be placed by the Respondents on the proceeding dated 16th March, 1979 of Registrar of the University as it was issued by the Registrar who was number companypetent to issue such orders. We also accept the logic of the Division Bench of the High Court in Upendra Nath Partras case supra that the declaration of a Teacher for one purpose will hold good for the others too. We are informed that the Respondents have retired from service and have been fighting for their rights for nearly 30 years.

CIVIL APPEAL NO. 2757 OF 2006 with Civil Appeal Nos. 4519/06 and 3679/05 KAPADIA, J. Civil Appeal No. 2757/06 This civil appeal is filed by the assessee against order dated 24.1.2006 in appeal No. C/276/04 delivered by the Customs, Excise and Service Tax Appellate Tribunal CESTAT . This matter is a sequel to the decision just delivered in the case of Commissioner of Customs v. M s Ferodo India Pvt. Ltd. Civil Appeal No. 8426/02 . Appellant is the manufacturer of Printers. The integral part of a printer is what is called as a shuttle. In the present case, we are companycerned with Technical Assistance Agreement TAA . Appellant imports shuttles which are used in the manufacture of printers. Unlike M s Ferodo India Pvt. Ltd. case supra there is numberrelated party transaction in the present case. In the present case, the parties are at arms length. The adjudicating authority has accepted the transaction value. The only question which arises for determination in this civil appeal is whether the adjudicating authority was entitled to load the royalty licence fee payment on to the price of the imported goods, viz, the shuttle s by taking its peak price. In the present case, the importer buyer used to negotiate with the foreign supplier on quarterly basis. During the period under companysideration, the importer received an order for bulk supply. Therefore, there was lowering of price. This factor was number at all companysidered by the adjudicating authority under rule 9 1 c . In fact, during the enquiry before the adjudicating authority, the appellant-importer placed companyrespondence between it and the foreign supplier which indicated that the appellant had received a bulk order for printers and, therefore, it had to lower its price which fact had number at all been companysidered by the adjudicating authority while invoking rule 9 1 c . In the present case, there is numberhing to indicate that royalty payment was a companydition pre-requisite to the sale of shuttle. The only ground on which the adjudicating authority has held against the appellant herein is that the shuttle is an integral part of the printer. This view has been accepted also by the Tribunal, erroneously. The Tribunal also failed to companysider that the appellant had received a bulk order for which it gave a price discount. The companyrespondence between the foreign seller and the importer was placed before the adjudicating authority before companyclusion of the enquiry. There was numberreason to reject the said companyrespondence, particularly when it was placed before the arguments stood companycluded. Moreover, in the present case, the royalty payment was number based on value. The royalty was payable at the rate of 50/70 per piece. In view of the law laid down by us in M s Ferodo India Pvt. Ltd. supra , the appellant succeeds. For the aforestated reasons, and particularly in the light of the law discussed in the earlier judgment in the case of M s Ferodo India Pvt. Ltd. supra , we set aside the impugned judgment of the Tribunal as erroneous. Accordingly, Civil Appeal No. 2757/06 filed by the assessee is allowed with numberorder as to companyts. Civil Appeal No. 4519/06 This appeal is filed by the assessee-importer against order dated 26.4.2006 by the CEGAT in Application for rectification of mistake in Appeal No. C/276/04 Final Order No. 103/06 . Since we have set aside the impugned order of the Tribunal in Civil Appeal No. 2757/06 as erroneous, the present appeal is also allowed with numberorder as to companyts. Civil Appeal No. 3679/05 This appeal is filed by the assessee, M s Daikin Airconditioning India Pvt. Ltd., against order dated 21.3.2005 by the CESTAT. In the light of our judgment in the case of CoC v. M s Ferodo India Pvt.